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pISSN : 2092-769X / eISSN : 2733-6948

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2019, Vol., No.26

  • 1.

    The Analysis of Litigation Object of the Environmental Public Interest Litigation under the New Normal State of China’s Economy

    HUANG, XISHENG | He Jiang | 2019, (26) | pp.1~22 | number of Cited : 0
    Abstract
    Because of the absence of the research on the litigation object of the Environmental Public Interest Litigation, the scope and the mode selection of Environmental Public Interest Litigation are unclear. The analysis of the connotation of “Environmental Public Interest” is indivisible from the critical inheritance of the concept of “Public Interest”. The national interest in a broad sense is equal to the sum of the national interest, social interest and private interest in a narrow sense, among them, the national interest in the narrow sense and the social public interest have differences and connections. In the interpretative theory perspective, the Environmental Public Interest should be considered as Binary Boundary Division of Environmental Entity Public Interest and Environmental System Public Interest, the former aims to restore the damaged ecological environment at the entity level and constitute the core purpose of Environmental Civil Public Interest Litigation; the latter aims to relieve the impact of environmental infringement behavior on environmental order and constitute the basic purpose of Environmental Administrative Public Interest Litigation. The interpretation of the abstract “Environmental Public Interest” in virtue of the distinction between Environmental Entity Public Interest and Environmental System Public Interest is the theoretical premise to solve the scope and the mode selection of Environmental Public Interest Litigation.
  • 2.

    A comparative Study on the Protection of Digital Works in Korea and Germany

    Choi, Sang Pil | 2019, (26) | pp.23~46 | number of Cited : 0
    Abstract
    Around 2000, Korea and other countries entered the digital age. While digitized information consisting of digital works and other content can be rapidly disseminated based on computers and the Internet to improve the technical and cultural level of our society at once, it also implies many rights-infringement elements, and thus strong legal protection against them should be dealt with very important. Unlike traditional works, digital works can be disseminated and used with little or no time and place constraints, so legal regulations alone within the country in which they were created do not provide sufficient protection. In other words, since the advent of the digital age is a worldwide phenomenon, global cooperation is needed to distribute and protect digital works. The EU has already issued a number of new guidelines for uniform law enforcement in line with the EU's expansion on May 1, 2004, and guidelines for the maintenance of various uniform regulations in the copyright sector. Germany's Copyright Act, which has been revised in a very timely manner to accommodate these guidelines, will be the most successful legislative case on digital copyright protection. The Korean Copyright Act has been revised several times in line with the digital information age, and it would be very meaningful if we could analyze the merits and demerits of the German Copyright Act to find useful legislative improvements.
  • 3.

    Study on the Attributes of Rural Land Management Right and Land Contracting Right in China

    Chen zhi | LI ZIGONG | CHEN DAPENG | 2019, (26) | pp.47~74 | number of Cited : 0
    Abstract
    The revised Rural Land Contract Law clarifies the right structure of the “Three Rights Division”. However, the attributes of land contracting rights and land management rights are not clear, which brings many obstacles to the realization of the transfer of rights. The root of the problem lies in the deviation between the economic thinking and the legal thinking that are difficult to bridge in the reform. From the policy implication of the “Three Rights Division” policy, the land management rights are biased towards property rights, while the overall law is biased towards creditor's rights; the land contracting rights are not independent property rights in terms of policy or law. In terms of interpretation, the independence of land management rights should be emphasized. Since the land contracting right cannot carry the content of the rights after the separation, it should return to the qualification status.
  • 4.

    A Study On the Constitutive Elements of the Crime of Infringing Business Secrets in China

    吳丹 Wu, Dan | Park Sang Sik | 2019, (26) | pp.75~95 | number of Cited : 0
    Abstract
    Trade secret is not only a weapon for entrepreneurs to get rich, but also a part of the national wisdom treasure house. As an important support for enterprises to establish their roots in the market and gain competitive advantages, it should become an important property right of the right holders protected by the state. With the increasing competition intensity of trade secret, China formally put it into effect in 1997 because of the urgent need to protect trade secret. Trade secrets are included in the scope of protection of our criminal law. However, since the stipulation, the crime of infringing on commercial secrets has encountered difficulties in both theory and judicial practice. The existence of elements of commercial secrets has also become a hot topic for scholars to discuss with each other, and various theories collide with each other. Based on this background, this paper, through empirical analysis and comparative analysis, analyses the disputes on the constitutive elements of the crime of infringing trade secrets, and puts forward some corresponding suggestions on criminal law protection. The full text is divided into three parts. The first part is an overview of the crime of violating commercial secrets. It mainly introduces the concept, characteristics, history, and current situation of the crime of violating commercial secrets, and puts forward reflections on this crime through discussing the influence of protecting commercial secrets. It lays the theoretical foundation for discussing the constituent elements of the crime of violating trade secret. The second part specifically discusses the problems that arise in practice in the constituent elements of the crime of infringement of commercial secrets. On the basis of the analysis of the four constituent elements of subjective, subject, object, and objective aspects, the author analyzes the controversy of the constituent elements of the crime in the application. The third part corresponds to the second part, and puts forward corresponding suggestions: First, the subjective aspect is identified as intentional; The subject is recognized as a general subject; The object clearly defines the difficult problem of identifying business secrets; Then, the author discusses the rationality of introducing economic espionage by comparing it with the criminal law protection system of the United States, and puts forward some suggestions on the identification mode of major losses.
  • 5.

    Major Legal Issues on the Sinking of Hableány

    Sang Man Kim | 2019, (26) | pp.97~117 | number of Cited : 0
    Abstract
    Hungarian boat, Hableány, collided on the Danube river in Hungary's capital with Viking Sigyn, a larger luxury passenger boat of Switzerland during a rainstorm on 29 May 2019, causing it to capsize and sink with 26 South Koreans and two Hungarian crew dead or missing. Hableány was owned and operated by Panorama Deck Ltd, a Hungarian company, while Viking Sigyn is owned and operated by Swiss-based Viking Cruises Ltd. It was not immediately clear which vessel was responsible for the collision, a rare incident on the Danube where navigation is busy but generally safe. The Sinking of Hableány is similar to the sinking of MV Sewol of 2014 in massive casualties. However, there are many differences in the area and location of the sinking, the cause of the sinking, the person involved, the governing law, etc. The Sinking of Hableány occurred in a EU member state, and the shipwrecked ship and the assailant ship are all in EU member states. Thus, it is likely that EU laws will be applied in a number of legal issues. Accordingly, it is necessary to analyze relevant EU laws.
  • 6.

    Analysis of Legislation of China’s Special Economic Area - Focused on Newly Liberated Zone, Economic and Technological Development Zone, High and New Tech Development Zone -

    KANG MOON KYUNG | 2019, (26) | pp.119~150 | number of Cited : 0
    Abstract
    A Special Economic Zone is a zone designated by the central government to revitalize the attraction of foreign investments, It refers to an area in which corporate taxes are exempt for foreign investors, and land, employee training programs, and expenses, etc. are supported, and various countries of the world are implementing a policy of Special Economic Zone or free economic zone for a comprehensive purpose of the development of their economy and specific areas. China has made efforts to achieve economic development through “the construction of a socialist market economy with Chinese characteristics” by actively adopting the market function since the 3rd Plenary Session of the 11th Central Committee, which stated the opening the country to the world in December 1978. In 1980, four Special Economic Zones began to be constructed. In 1984, 14 coastal cities were open, and after 1985, the opening of the economy in coastal cities continued. In 1988, Hainan was designated as a special zone. In the development in the 1990s, a Newly Liberated Zone in Shanghai Pudong was open, and some coastal cities along the Yangtze River were open extensively. In addition, with Pudong at the head, the opening of the economy in the Yangtze River area was formed, and various Special Economic Zones have been operating. In China’s Special Economic Area, in addition to Special Economic Zone, Newly Liberated Zone, Economic and Technological Development Zone, High and New Tech Development Zone, Customs Special Management Zones like Bonded Zone, Frontier/Boundary Economic Cooperation Zone, other types of Development Zone and various Provincial-level Development Zones. This study investigated the status of the operation of Newly Liberated Zone, Economic and Technological Development Zone, and High and New Tech Development Zone of China’s Special Economic Area continuously implemented for more than 30 years, operating various special zone systems and analyzed the related legislation to seek a plan for the revitalization of the Korea’s Saemangeum District designated and operated as a free economic zone.
  • 7.

    A Study on Reform of ISDS Regime in International Investment Law

    Yeu Sun Kim | 2019, (26) | pp.151~181 | number of Cited : 5
    Abstract
    The ISDS regime removes risks increased by disputes between States by realizing the depoliticizing of disputes over investments. To date, approximately 3,000 International Investment Agreements(IIAs) have embraced the ISDS regime. Current IIAs form an international investment protection regime with their substantive or procedural similarities. The increasing number of agreements that have embraced the ISDS regime demonstrate that the regime is an effective means for protecting investors. However, many problems have been raised in connection with the ISDS regime. The ISDS regime has been criticized in various aspects. Firstly, the lack of consistency and predictability in awards triggered a crisis in the legitimacy of the ISDS regime itself. Moreover, the ISDS regime lacks a review and control mechanism for awards. Secondly, concerns have been raised for democratic accountability and legality of the ISDS regime itself. A State is guaranteed its legitimacy under international law since the mechanism of IIAs as investment treaties has been established. In the circumstances where State sovereignty is violated by awards under the ISDS regime, the democracy of the regime itself is not recognized. The procedure for appointing an arbitrator is not democratic, and there are problems in impartiality and independence of arbitrators in international investment arbitration. Thirdly, The duration and costs of proceedings of the ISDS regime and the lack of transparency are also controversial. The ICSID, OECD, UNCTAD, UNCITRAL and other international economic organizations have been performing studies for the reform of the ISDS regime. The United States, the European Union and other States have been promoting progressive reform through IIAs. The most persuasive reform proposal was to establish an appeal mechanism. However, difficulties in the reform process have been pointed out, and the scheme to realize the mechanism was doubtful. What are most noteworthy are the reform schemes proposed by the UNCITRAL and the EU. The UNCITRAL has already enforced the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (2104) and the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (2014) (the Mauritius Convention) and has succeeded in the reform in some aspects. Recently, the UNCITRAL continues studies on concurrent proceedings of the ISDS regime, ethics of arbitrators, etc. by approaching such issues step by step. Among other things, the UNCITRAL's research focuses on discussions on the establishment of a stand-alone appellate body and a permanent mechanism for the settlement of disputes over investments (such as an international tribunal for investments or an international dispute settlement body). Such discussions have proceeded very concretely, and substantial realization is expected. With respect to bilateral relationships, the EU has shown the strongest will for the reform of the ISDS regime. The EU basically pursues common policies on trade and the economy and is sensitive to States' rights to regulation. Hence, it intends to change the ISDS regime to a system under international public law. In 2016, the EU signed agreements stipulating an appellate tribunal system; the EU-Canada Comprehensive Economic and Trade Agreement (CETA) and the EU-Vietnam FTA. Its efforts have significantly advanced the reform. Furthermore, the EU has negotiated with the United States on an agreement for Transatlantic Trade and Investment Partnership (TTIP), which includes provisions concerning a permanent Investment Court system. However, the negotiation is suspended due to the conflict between the parties over the essence. The United States regards the current ISDS regime as an investor-led model of commercial arbitration. It deems that the design and birth of the ISDS regime are based on the commercial arbitration system. Meanwhile, the EU considers that the ISDS regime is a channel for State-led settlement of disputes under public law. It insists that the current ISDS regime is not capable of rectifying problems the regime has. Although the two parties conflict with each other, there is a consensus among many countries about the problems in the ISDS regime, and thus the parties are expected to reach an agreement. The multilateral agreement approach is the most practical as a scheme to realize the reform of the current ISDS regime in the present situation where a conflict exists. The UNCITRAL has experience concluding the Mauritius Convention (a multilateral agreement); it is easy to design a multilateral agreement in terms of reservations or opt-in/opt-out; and there is no technical problem in connection with Article 30 of the Vienna Convention on the Law of Treaties. Only the relationship to Article 53 of the ICSID Convention should be resolved properly.