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2008, Vol., No.41

  • 1.

    A Study on Corruptions of Local Community in the Late Joseon Dynasty

    LEE JONG-KHIL | 2008, (41) | pp.1~29 | number of Cited : 3
    Abstract
    This article analyzes provisions and occasions relating to the corruption of local community in the late Joseon Dynasty. According to Gyeonggugdaejeon(經國大典) and succeeding codes of the Joseon Dynasy, various misconducts of public officers should be prohibited with heavy punishment. But the strict administration of justice was not accomplished and it resulted in wide corruptions of local communities in the late Joseon Dynasty that could be related by Joseonwangjosillok(朝鮮王朝實錄) and other materials. Especially the lower bureaucrats assisting local governor made lots of scandals and some examples are illustrated in Mokminsimseo(牧民心書) written by the great scholar, Jeong Yak-Yong(丁若鏞). All kinds of bribery and extortion of public officers are evaluated as cancers to healthy government and only the aspiration for clean society would get rid of corruptions.
  • 2.

    A Study on the Tradeable Permit System of Air Pollution and Greenhouse Gas

    Kim, Se-Kyu | 2008, (41) | pp.31~56 | number of Cited : 10
    Abstract
    The Bali Roadmap, which includes the directions and schedules of climate change negotiations after the year of 2012, was adopted in the 13th UNFCCC(United Nations Framework Convention on Climate Change) that was closed in Bali Indonesia, December 15, 2007. In a near future, our country was also expected to cut off greenhouse gas emissions from 2013 up to the reduction level of the year of 2005 according to the implementation of greenhouse gas emissions regulation. In preparing for our country as desgnating place to adhere to mandatory greenhouse gas reduction in 2013, this paper attempted to propose legal, institutional and policy suggestions regarding air pollution materials tradeable permit system in Seoul business sectors. First, legal and legislative supplemention should be needed from institutional perspectives. Second, the introduction of total mass emissions should be seriously considered in the area proclaimed as air pollutant according to the 22 article, the environmental foundation act. Third, the enactment of global warming prevention act as a preparation of mandatory gas reduction requirement by 2013 and guidelines for greenhouse gas emissions transaction system were proposed. Also, the revitalization of transaction market, the increased need in voluntary cooperation and the use of incentive auction system were suggested. This paper emphasized that although the tradeable permit system was not expected to solve air pollution related problems it should be one of the most important measures of meeting the changes of global climate as a means of indirect regulation.
  • 3.

    Study on the Sexual Crime in Bible

    Sang-Ho Kim | 2008, (41) | pp.57~79 | number of Cited : 0
    Abstract
    God created man in his own likeness. So man has to live for God' Glory. Idol worship shades God' Glory. Also it violates the purpose of human creation of God. Idol worship here is spiritual adultery which God hates foremost. Physical adultery in law which God hates is phenomenal, but spiritual adultery is essential. Sexual crimes in Bible are sexual violence, adultery, incest, homo sex etc. Such crimes didn't be diminished in spite of strict punishment as well as idol worship of Israel. Nobody can be free from temptation of sexual crime by virtue of the physical law. But everybody can be free from temptation of sexual crime by virtue of holy spirit's law. Rape in criminal law of our country have several problems in relation to not only principle of sexual equality in constitutional law but also "No Punishment Without Law" in criminal law. Especially Rape by relatives in "Act on the punishment of sexual crimes and protection of victims thereof"have problems in relation to the scope of relatives, the concretization of rape's provision according to the type of relatives and degree of means. Although incest is more illegal and immoral than adultery, incest in existing law is not punished. So it must be punished separately according to the type of relatives. Taking this opportunity, I want to study "Bible and criminal law" by virtue of holy spirit's help in the near future.
  • 4.

    Reconstitution of Crime Concept about Organized Violence Crime

    Deokin Lee | 2008, (41) | pp.81~113 | number of Cited : 1
    Abstract
    We cannot raise different opinions against the fact that organized violence crimes are serious and cannot be overcome comparing to the effects on the society.  However, it is judged that the organized violence crimes are exaggerated and different form the reality as reviewed before. Not only practitioners but also researchers are responsible for this. Overly diversified concept definition makes us misunderstand the exterior of organized violence crimes and it is evident that empirical research is impossible. We can point out the problems that there was no consensus in professional group as well as the research direction was wrong from the beginning. Additionally, domestic researchers worsened the ambiguity of the concept of the crime by riding on the international research trend without verification. It caused the errors in the approach to the characteristics of the organized violence crimes, and furthermore they considered this abnormal research trend justifiable which sticks to the countermeasures in the aspect of comparative law. Therefore, if we do not correct these problems, confirm the criminal exterior of organized violence crimes and establish the countermeasure against the organized violence crimes by analyzing criminal characteristics and crime typology accordingly, it will make depart the theory from the reality as well as interfere the establishment of the administrational policy for social defense. Therefore researchers and working level workers need to think over and solve the problems. We need to think over and continue the research to establish a doable crime enforcement policy from the effective countermeasures against the organized violence crimes.
  • 5.

    tudy on Earnest Money in Exclusive Contract - Especially about a Public Entertainer -

    Woongkil Han | 2008, (41) | pp.115~163 | number of Cited : 5
    Abstract
    The eanest money between agents and public entertainer is biger than other contracts. Recently a number and scale of a trouble in the exclusive contract have expanded. However, we do not have an enough means to solve troubles. I have researched current solution means of troubles and introduced helpful judgment about real estate transactions to solve the troubles between agents and public entertainer. In the chance of survey on recent Korean precedents and theory in earnest money, I find very interesting case(Korean Supreme Court 2006.2.10. Sentence 2004 da11599) and surprise on insufficiency of researches in earnest money, especially Article 585 of Korean Civil Law. I want to supply a research in earnest money, especially Article 585 of Korean Civil Law. I carry on two things. One is the survey about history in Article 585 of Korean Civil Law. Another is a critical notes about law case(Korean Supreme Court 2006.2.10. Sentence 2004 da 11599).
  • 6.

    Reconstruction of ‘Standard of Medicine’ in Medical Malpractice Litigation

    KIM MIN KYOU | 2008, (41) | pp.165~202 | number of Cited : 7
    Abstract
    This paper examines how to understand ‘Standard of Medicine(SOM)’ in judging medical negligence is appropriate. In conclusion, in judging negligence of doctors for medical malpractice litigation, it is not adequate to consider only SOM. It should be considered with ‘care duty’, as a content of duty of practice, based on the SOM. Furthermore, other criteria of duty of practice such as judgment of discretionary reasonableness, duty of information service(informed consent), duty of hospital transfer, and duty of post-explanation should be also deliberated. Therefore, SOM can be defined as follows. First, SOM implies Rule of Medical Practice (ROMP) based on medical knowledge and views that have been propagated and implemented by profound research and guarantee of reliability and safety which have been formed in the medical community via a series of medical evolution process. Therefore, in an aspect of the ROMP formed in the medical community, the SOM can be partially complicated "medical custom". However, it can be litter bit different with the medical custom in that it legally judges a medical negligence on violation of duty of practice related to an object of legal judgment. Second, although SOM mentioned as a ROMP above is placed as ‘a premise fact’ in judging medical negligence, it is to be also help receiving a legal judgment in an actual case. Hence, it should be considered as a duty of practice, so-called care duty via the legal judgment. As a result, it can be a practical rule. Furthermore, it can be a judgment rule from a legal judgment. Third, the ROMP existing as an actual fact is counted among duty of practice. It is judged as a Practical Norm(PN) and simultaneously it also goes through a process of Judgment Norm(JN). In particular, over a series of medical evolution process, it finally shows a circular movement connected with legal judgment. Therefore, the ROMP known as “a premise fact” in judging medical negligence of doctors always does not stay in a point of the fact. It is repeated as a circular movement(ROMP→PN→JN) via a procedure regulated by legal judgment and appraisal.
  • 7.

    A Study on the Rescission of Consumer

    HyoungSuk Ko | 2008, (41) | pp.203~230 | number of Cited : 5
    Abstract
    Business must provide consumer with necessary informations to exercise the right of choice, because business has necessary informations as to making consumer contract. If business doesn't provide informations or provide false informations, consumer must be making a contract in misconception. Also, in case of business' nonacceptance of leaving or disregarding consumer' wish of leaving, consumer makes a contract to escape this situation. Those contracts were made in situation of lack of intention contracting. But contracts are effective unless come within the purview of the mistake, deception or compulsion. But it is unreasonable that consumer contract is effective. Therefore, it is necessary to grant consumer a right cancelling a contract. In Japan, consumer can cancel a contract with the consumer contract act in this case. The Rescission of Consumer must be introduced that guarantees reasonable choice of consumer, realizes business' duty of providing informations and cancels a undesired contract.
  • 8.

    European Union's New Trade Policy toward China

    KWON HAN-YONG | 김철진 | 2008, (41) | pp.231~271 | number of Cited : 1
    Abstract
    中欧经贸关系迅猛发展,2007年中欧贸易额已经超过3500亿美元,欧盟从2004年开始连续4年成为中国最大的贸易伙伴,中国也成为欧盟最大的进口来源地和继美国之后的第二大贸易伙伴。但是,随着中欧贸易的增长,来自中国的竞争也给欧盟一些重要的制造业带来了严峻挑战。另外,欧盟由于僵化的社会福利制度等原因,经济处于低迷,失业率高达10%左右,与美国的差距明显拉大。在这样的时代背景之下,为扭转这一局面,于2006年10月24日,欧盟委员会发表了题为≪更紧密的伙伴,更大的责任≫的对华政策新文件。作为该文件的附件,≪竞争与伙伴关系:中欧贸易与投资政策≫则全面阐述了欧盟新的对华经贸政策。此新政策就是其应对全球化战略的一个重要组成部分。 ≪竞争与伙伴关系:中欧贸易与投资政策≫分析了中欧经贸关系发展给欧盟带来的影响,在肯定中欧经贸关系发展使欧盟受益的同时,强调了其给欧盟带来的竞争压力和挑战。文件列举了中国市场竞争环境的种种所谓“不公平性”和贸易壁垒,要求中国承担更大的责任,营造公平的竞争环境,提供超越加入WTO承诺的市场准入。欧盟提出要采取双边和多边手段来保护欧盟利益,并继续采用反倾销、反补贴等贸易救济措施来应对所谓中国的“不公平竞争”。 新文件作为今后一个时期欧盟发展对华经贸关系的纲领性文件,有如下特点: 第一、政经分离。虽然此次新文件是欧盟发布的第六份对华政策文件,但是,首次将政治与经济问题分开,体现了政经分离的原则,对华政治上继续友好,维持战略伙伴关系,而在经贸领域则只重利益,不讲“友好”。 第二、更趋强硬。欧盟不仅把中国视为最为重要的挑战,而且,在中国市场经济地位问题上不但没有进步,反而有所退步,把它作为向中国施压的重要手段。新文件对中国市场开放的要求更为苛刻,甚至达到无理的程度,并暗示如果中国不能满足欧盟的要求,欧盟将像美国那样对中国实行更加严厉的贸易保护政策。 第三、强调责任。欧盟不再把中国视为一般的发展中国家,而是视为已经很有竞争力的新兴经济大国,据此要求中国承担更大的国际责任,更高程度的贸易自由化——比现行WTO规则要求还要高的贸易自由化。 第四、欧美靠拢。美国和欧盟对华经贸政策逐渐靠拢,双方一方面均对中国的崛起表示欢迎,希望分享中国迅速发展的“红利”;而另一方面则要求中国承担更大的责任。欧盟此次新政策不仅在基本原则上与美国一致,而且在知识产权、市场准入和汇率等问题上明显在呼应美国。 欧盟表示将更加重视对华经贸关系,并承诺继续向中国开放市场,反对贸易保护主义。这些观点都将对今后中欧经贸关系的发展产生积极影响,有利于中欧经贸关系的进一步扩大。但在另一方面,欧盟主张今后将继续对中国实行反倾销、反补贴等所谓的公平贸易措施,同时欧盟将继续对解决中国市场经济地位问题采取拖延战术,由此可见,今后中欧贸易摩擦将进一步增加。并且,欧盟新文件对中国的知识产权、产业政策、市场准入、汇率等问题提出了诸多指责,要求中国必须提高市场竞争的公平性,在上述领域,今后双方的政策冲突将趋于激烈。另外,欧盟强调将更多利用WTO争端解决机制来应对中国所谓的“不公平”贸易行为,这预示中国将来要更多地面对欧盟在WTO的起诉。 现在中国的经济发展已经面临全新的国际环境。中国经济在世界经济格局中的地位已经发生了根本变化,而且对全球经济的影响力也明显增强,然而,中国又面临着要求承担更大责任的国际压力。如何在不损害自身经济发展的同时承担更大的国际责任,将成为中国今后要面临的一个重大的课题。
  • 9.

    A Character and Consummated Intimidation

    HOH ILTAE | 2008, (41) | pp.273~290 | number of Cited : 6
    Abstract
    If intimidation is classified as an endangering offense (i.e., Gefährdungsdelikt), then it can be considered completed as soon as a notice of threat is received by the intimidated person. This will expand the punishable range of the offense. Moreover, the range of the punishment for the offense must be expanded because current criminal law punishes attempted intimidation. This is not desirable. If it cannot be denied that a punishment brings with it pain that a human being is unable to endure, we should confine punishability to socially unacceptable acts, where punishment cannot be avoided. On this ground, we need to pay attention to the fact that there are few cases of legislation that punish criminal attempts of endangering offenses. Above all, criminal law, as it stands, stipulates the constituent elements of a concrete endangering offense, stating that one who can be considered guilty of such offense is “(a) person who … causes danger of ….” Thus, while we should confine abstract endangering offenses to behavior offenses, we have to restrain ourselves from regarding a resulting offense as an endangering offense, except that it is not possible to interpret the constituent elements of an abstract endangering offense in another way because if an illegal act is classified as an abstract endangering offense, the range of its punishment will be expanded. The expansion of punishability with interpretation, however, violates the principles of “nulla poena sine lege” and “in dubio pro reo,” and criminal law has the article “causation” in its general part. This means that criminal law works on the principle of punishing a resulting offense or a completing offense, which is premised on causation, except for particular grounds that merit it to be treated differently. Therefore, a crime whose mere attempt is punished can be regarded as a resulting offense or a depriving offense, which has no particular provision in criminal law. The articles on attempt in criminal law have established that attempted crime must be categorized as a begun attempt, an incomplete attempt, or a voluntary attempt. Criminal law states: “When an intended crime is not completed or if the intended result does not occur, it shall be punishable as an attempted crime”(Article 10, clause 1). Article 26 also stipulates the abandonment of a crime, which could be categorized as passive abandonment to quit the action or active abandonment to prevent the result of the culmination. This proves that attempts can be categorized as begun attempts, incomplete attempts, or voluntary attempts in criminal law. Thus, attempted intimidation, which is punishable, should be categorized as any one of these three attempts as well, except for a reasonable exception. Although we confirm every sort of attempt, we say that notwithstanding the punishment of the attempted intimidation, although intimidation is classified as an endangering offense, we may on one hand confirm every sort of attempt but on the other recognize a begun attempt absolutely while denying an incomplete attempt and a voluntary attempt. This interpretation is unreasonable in criminal law. Considering the attribute of intimidation from various points of view, as stated above, it is hard to accept that the majority opinion in the Supreme Court and that of Prof. Jeong, Young-Seok regard or classify intimidation as an endangering offense. On the contrary, it is a reasonable interpretation that intimidation is classified as a depriving offense. Therefore, we should deny the Supreme Court’s interpretation: “… tell to inflict harm … irrelevant that the intimidated person actually feels fear, the intimidation is completed by satisfying the constituent elements, such as the notice of harm.” Instead, intimidation should be classified as a depriving offense and, as such, it is not completed unless a notice of harm is received by the other party. It is completed if the intimidated person feels fear, and in this case, the defendant would be punished for his completed act of intimidation. If not so, to punish the defendant for attempted intimidation is reasonable in light of the current criminal law. For this reason, the minority opinion is more just and valuable than the majority opinion in the Supreme Court.