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2010, Vol., No.49

  • 1.

    Legal Ethics in Cyberspace

    Song, Si Seob | 2010, (49) | pp.1~30 | number of Cited : 2
    Abstract
    No one can deny the huge effect on the human life introduced by Internet. Internet usage by lawyers is no longer a new topic, too. In the course of increasing number of lawyers using internet for advertising,many unanswered questions which can not be answered by present legal ethics code still remain. The more lawyers want to use cyberspace for their own interests, the more problem would rise and give us lots of questions. Consensus can be developed among bar regulations on some ethical issues that apply to marketing and providing legal services over the Internet. The rapid growth of legal services over the Internet raises serious ethical issues which include: (1) attorney-client relationship, (2)advertisement, (3) referral services and (4) consultation and disclaimer. The answers to these questions are as follows. For attorney-client relationship, the clear and overwhelming consensus of the regulatory bars is that unencrypted e-mail is permissible method for a lawyer to communicate with a client. For advertisement, lawyer's web page is a communication or advertisement subject to the bar's rules concerning advertisement and solicitation. But in the case of lawyers advertising and solicitation rules for the Internet being incapable of keeping pace with the technology. For referral services, in America some state bars prohibit a lawyer from participating in commercial or Internet lawyer referral plans,but other bars, however, permits lawyers to participating ‘for profit’lawyers referral programs, not sponsored or approved by any bar associations. For consultation and disclaimer, many commentators have urged that attorneys with web sites include disclaimers attempting to assert that attorney's web site is not advertising. In Korea, regulations over legal practice of internet are not sufficient,but we may not give up to solve the problem arising in this area. Especially, bar code ruling about the advertisement through internet has been established for treat the urgent issues relating advertising by various means which have not been covered by previous law and regulations. Tasks are not finished at this point and corroborated efforts should be endeavored to these problems that can not be avoided.
  • 2.

    차례

    법학연구소 | 2010, (49) | pp.1~4 | number of Cited : 0
  • 3.

    지방행정체제개편의 기본문제- 지방행정체제개편 특별법의 내용을 중심으로 -

    CHOI WOOYONG | 2010, (49) | pp.31~63 | number of Cited : 4
    Abstract
    지방자치단체의 경쟁력을 확보하고 지방행정의 능률성을 향상시키기 위하여 지방자치단체간의 통·폐합 논의가 세계적인 추세에 있고, 우리 또한 최근특별법을 제정하여 이에 박차를 가하려 하고 있다. 그러나 그 논의의 중심에는 헌법정신과 ‘주민’중심의 사고가 항상 존재해야 함은 두 말할 필요가 없다. 즉 지방행정체제의 개편은 주민자치를 중심으로 한 제도개혁 내지는 정치개혁으로 연결되어야 한다는 대명제하에서 논의 되어져야 할 것이다. 이제 특별법의 제정으로 본격적인 지방자치단체간의 통합, 특히 기초지방자치단체의 통·폐합이 사회적 주요 이슈로 등장하리라 생각한다. 그리고 그통․폐합의 주요 이유로서는 ‘지방행정의 능률의 향상’이라는 명제가 대두되리라 생각한다. 그러나 ‘지방행정에 있어서의 능률이란 지방자치의 목적에 부합하는 수단적·기술적 의의를 가지는 것이지, 그 자체가 목적이 되어서는 안된다. 민주정치의 효과를 정확하게 하는 한도 내에서 능률이라는 것은 기능하는 것이기 때문에 능률원칙에 의해서 지방자치의 효과를 減殺해서는 안 된다’는 점을 잊어서는 안 될 것이다. 필자는 자치단체의 통·폐합 내지는 단층화에 있어서 가장 중요한 것은 ‘능률성’의 문제가 아니라, ‘주민의 의사를 바탕으로 한 민주주의의 원리’이며, 이때 법적·이론적 근거로 제기될 수 있는 것이 우리 헌법이 보장하고 있는 지방자치에 대한 규정이라 생각한다. 한편 이번에 제정된 특별법에는 많은 문제점 또한 제기되고 있다. 특히, 강제적인 통․폐합으로 인한 지역공동체의 파괴가 우려되며, 통합되는 지역에 투자되는 대단위 재정투자로 인한 지역 간의 빈익빈부익부 현상이 더욱 심화될 수 있다는 점, 그리고 새로운 행정시설의 건설로 대규모 토목공사가 야기되고 이로 인한 환경파괴로 이어질 수 있다는 점, 등에 대해서는 귀를 기울여야 할 것이다. 마지막으로 구의회의 폐지문제에 대해서 언급하면 다음과 같다. 헌법을 그대로 둔 상태에서의 자치구의회의 폐지는 위헌이라고 하겠다. 본문에서 살펴본 바와 같이 우리 헌법은 명확히 그리고 완고히 ‘지방자치단체에 의회를 둔다’고 하고 있다. 따라서 설령 법률로 자치구의 지방의회를 폐지하는 법률을제정하였다고 하여도 이 법률은, 지방자치단체에는 의회를 두도록 한 헌법 규정에 위배되어 즉 자치구가 지방자치단체로 존재하는 이상 의회만을 없애는것은 위헌이므로, 위헌이라 할 것이다. 따라서 우리 헌법의 규정을 그대로 둔상태에서 자치구의회, 즉 지방자치단체의 의회만을 법률로 폐지할 수는 없다고 하겠다. 굳이 자치구의 의회를 폐지하려고 한다면, 지방자치단체의 종류는법률로 정할 수 있으므로, 지방자치단체의 종류에 대한 법률적·정치적 그리고 국민적 합의를 거쳐 지방자치단체의 종류를 정하고 있는 지방자치법을 개정하여 자치구를 지방자치단체의 종류에서 삭제한 다음 구의회를 폐지한다면위헌의 문제는 발생하지 않으리라 생각한다. 이러한 본고의 내용을 종합적으로 정리하면, 지방행정체제의 개혁은 우리헌법상의 지방분권과 주민자치의 확립을 위한 제도설계가 되어야 하며, 지방자치단체의 존립의 기초인 ‘주민의 공동체 의식’을 바탕으로 한 민주성의 범위 내에서 행정의 ‘능률성’은 논의되어야 하고, 규모의 기준을 정함에 있어서는 지방분권과 주민자치의 실현을 위한 사무의 개혁이 함께 논의 되어야 할것이다. 결국 주민자치의 강화, 주민의 자기결정권의 강화를 위한 방향으로지방행정체제의 개편은 이루어져야 할 것이다.
  • 4.

    Background and Prospect of Carbon Tax in China

    YUN SUNG HYE | 2010, (49) | pp.65~100 | number of Cited : 5
    Abstract
    International community is facing one of the greatest challenges, climate change. To addressing climate change, it is struggling to reduce green house gases emission, specially carbon dioxide(CO2), which is mainly associated with global warming. According to the Kyoto mechanisms,Annex I countries of Kyoto Protocol like OECD countries are adopting national measurements like Carbon Tax and Emission Trading system etc,for CO2 reduction. China, even though as a developing countries, its commitment to reduce CO2 has been postponed until 2012, is under the international pressure to be responsible for the reduction commitment as one of the greatest CO2emission countries. To addressing climate change and reducing CO2, it is likely to introduce carbon tax around 2012. Meanwhile, developed countries who have already introduced environment tax like carbon tax, have widely been talking over the introduction of border measures aimed at offsetting possible asymmetries in competitiveness of energy intensive industry and preventing the risk of carbon leakage. Under the circumstance, China takes strong stance on the border tax adjustments to carbon tax. It implies that the carbon tax would change to green trade barrier, which highly likely causes trade dispute between developed and developing countries. Thus, the paper will study on background of introducing carbon tax in China, continuously analyze legal framework of carbon tax, and then prospect the border tax adjustments to carbon tax.
  • 5.

    Legal research on corporate tax system and K-IFRS

    Lee, Seong Woo | 2010, (49) | pp.101~135 | number of Cited : 0
    Abstract
    From 2011 accounting year, K - International Financial Reporting Standards(hereinafter expressed as K-IFRS) shall apply to the Financial Institutions according to Act of Establishment, etc. of Financial Services Commission, and the entity whose debt or equity instruments are traded in a public market (including that files, or is in the process of filing, its financial statements with a securities commission or other regulatory organization for the purpose of issuing any class of instruments in a public market. There needs to make separate and independent tax law system with K-IFRS as like U. S. tax system. If not, every change of any of IFRS should company with the change of domestic corporate tax system.
  • 6.

    A Review on Criminal Offense of Conspiracy·Inchoate crime - abolition of offense of conspiracy and modification of inchoate crime -

    이종률 | Deokin Lee | 2010, (49) | pp.137~170 | number of Cited : 2
    Abstract
    It is incontestable that punishment for crimes should be based upon the principle of a consummated crime's case. And about the regular crime,attempted crime punishment would be considered. Particularly, It is not a simple problem recognize the inner criminal intention externally, and applying it to requisites for constituting a crime in practice in itself is not easy. Conspiracy means plot or promise about the crime among more than two people, and punishment for conspiracy is belongs to criminal law of mind because such actions do not revealed externally and clearly. Nevertheless, in our country, inchoate actions and conspiratorial actions are being covered to be punished, punishment regulations about conspiracy should be eliminated in the provision. Furthermore, to punish the preparatory stage for committing crimes, first of all, it should be limited to the crimes that the benefit and protection of the law I are especially being mattered, and limited to the crime group which is able to have a devastating effects on the majority of people as well. Therefore, criminal punishment for inchoate crime should also be limited to the important crimes such as rebellion‧invasion and life invasion, and decriminalize the crime group which is theoretically possible but inchoate difficult to reach put inchoate into action of crime in nature. Also, though punish as the inchoate crime, review a method of limitation of the penalty in law and analyze the excessively punished part on perspective of comparative law then should control rationally.
  • 7.

    Recognition Requirements of Interrogation Record of an Accused Becoming Suspect Drawn up by Prosecutor - In Relation to Hearsay rule -

    Shin, yi Chul | 2010, (49) | pp.171~211 | number of Cited : 9
    Abstract
    The interrogation record of a suspect-turned the accused drawn up a prosecutor as one of the statement evidence collected in investigational;procedure is a sort of hearsay one, that it is necessary to look into its exceptional use in relation to the application of the hearsay principle. The revised criminal procedure law has tried to realized the so-called public trial-focused rule meaning hat it should make statement at the public trial, an original evidence the basic data of recognizing facts rather than hearsay evidence revealed as substitute evidence. I light of that, it will be desirable to limit the evidence ability and effect of hearsay evidence as much as possible. Thus it appears sufficient in a theory of legislation different from current law, to listen to the accused's statement at court, if the statement content is denied, then deny the ability of a suspect-turned the accused's interrogation record drawn up by the prosecutor, and accept the evidence ability when the judicial police officer drawing up the suspect interrogation record or participating at the interrogation is present at the court, and testimonies. And it is time to more strictly judge evidence ability and ensure its rationality, and display ability to facilitate the realization of public-trial focused rule through faithful contest at court.
  • 8.

    The recent trends of Criminal Sanctions Legislation, its practicality, and the nature of punishment

    Kwang Soub, Song | 2010, (49) | pp.213~250 | number of Cited : 15
    Abstract
    Although numerous criminal legislations and other countermeasures against crime exist, neither regulation nor prevention of crime is observed and significant numbers of repeat offenders are appearing in succession. Such phenomena have lead to a degree of understanding of the Law of Crime Saturation, ‘in a society there will be a certain number of crimes.’Are humans good or evil? Why, in the same environment and conditions, do criminals commit crimes? Is the reform of criminals a possibility? We often find ourselves in a dilemma giving definite conclusions to such questions. Crime is not an issue bound only to the criminal and the victim but a common concern for all and it must be addressed and resolved together as a society. Criminal legislations and other measures, of late, need to be drawn up with the obligation of protecting of the rights of the criminal and the victim rather than focusing on retributive justice. Correction strategies and criminal sanctions with the focus on criminal reform will allow successful criminal rehabilitation back into society, where criminals live a renewed life fulfilling the obligations and responsibilities required by society. This is because rash punishments based on myopic retributive justice hinder the establishment of crime prevention strategies and successful criminal rehabilitation via criminal retribution.
  • 9.

    China's legislation on terrorism, Crime Research

    음건봉 | 2010, (49) | pp.251~296 | number of Cited : 4
    Abstract
    Which means we use to prevent crime and international terrorist activities, even within this short time the crime without thoroughly unwise to overcome not realistic to remember. According to modern criminology and criminal activity characteristic of human society and the international community act of departure, the domestic social conflict that shows the results of different kinds served. So long as there is human society, and various social conflict will necessarily be a conflict of extreme type of conflict soon will be considered a criminal offense. A common criminal and terrorist activity a crime has a different characteristic Well, since even if some sort ofcriminal activityand the development of its own creation must conform tothe rules of common crimes, and through international cooperationcan not expect that will be completely lost. Every possible effort be tolerated by the international community should control the extent to suppress. Terrorist activities on the street facing the tide of crime prevention very seriously, and can be far way to go yet. Perhaps a word of German criminal law scholars Liszt Quotes like “the best social policy is that the best criminal policy” means the international community for the crimes of terroristactivities should be driven by effective preventive measures will be.
  • 10.

    Reconsideration on Abatement of Notice of Apology as Measures for Restoration of Honor

    KIM MIN KYOU | 2010, (49) | pp.297~341 | number of Cited : 6
    Abstract
    A recent phenomenon of reinforcing personal rights has been so rapidly arising that it could be called the era of “personal rights prosperity.”Nevertheless, the number of cases requesting mediation or arbitration to Press Arbitration Commission due to the invasion of personal rights such as honor defamation or reputation defamation by mass media has been increasing dramatically lately. However, when there is a case like “honor defamation by mass media,” there is a collision between freedom of the press and personal rights of the victim. Focusing on the decision of Constitutional Court of Korea (CCOK) in 1991, this study re-examines the validity of the decision that abated the notice of apology, which has been conventionally used as one of the reasonable measures for restoration of honor that are provided in the article 764 of Korean Civil Code. The findings of the study are as follows. (1) According to the decision of CCOK in 1991, approving the notice of apology in civil responsibility is contradictory to the principle of civil liability which is focused on compensation because it also has criminal responsibility in it. However, Special Criminal Code has compensation order system, and the decision of compensation also puts stress on punishment function or deterrence function, which is similar to the punitive compensation system of the U.S. law. The final decisions judged by lower courts since "the decision of CCOK in 1991" specify the "function of satisfying" the victim as well; thus, civil liability also needs to consider not just compensation function but the function of punishment or deterrence against illegal acts as well that would be the fundamental function of torts liability. (2) “The decision of CCOK in 1991” claims that in honor defamation cases, the notice of apology had played a major role, while compensation was ancillary. However, there are not many judgments that permitted the notice of apology. Reviewing the cases before the year 1991, there were only a few cases that allowed only the notice of apology or referred to it along with compensation. On the contrary, “the notice of apology” can be a reasonable means of recovering the honor of the victim of a social devaluation because it allows the assailant to express his or her will to acknowledge their fault and to prevent the recurrence in the future. The problem is, however, that the assailants' personal rights should also be protected by law; thus, it would be important for the judiciary to make the best use of its system. (3) “The decision of CCOK in 1991” suggests three alternative methods to the notice of apology: ① publishing the court's decision of compensation on newspapers or magazines, ② publishing a conviction of honor defamation on newspapers or magazines, and ③ the withdrawal of a statement about honor defamation. However, if the publication of the ruling of compensation or of the ruling of conviction is ordered in the judgment, as suggested in the first and the second alternative methods,chances are that it will increase the emotional burden of the assailant, and therefore cause the compulsory realization of conscience or the invasion of personal rights of the assailant. In addition, since the withdrawal of statement about the honor defamation, which is suggested as the third alternative, is related with the pride of the press, it is feared that the press will be forced to a humiliating state. Since “the decision of CCOK in 1991,”there has been a tendency to consider broadcasting or publishing of the text of a decision. However, these methods are no different from the conventional method, a notice of apology. Thus, the assailant's expression of apology, which is a way of acknowledging his or her fault to the victim and of promising the prevention of recurrence in the future, would be more humane and persuasive because this method means the realization of self-responsibility as a member of community.
  • 11.

    Some Suggestions for the Amendment to the Civil Execution Act

    Daeseong Kang | 2010, (49) | pp.343~370 | number of Cited : 2
    Abstract
    It has been several years since the Civil Execution Act was enacted. The civil execution procedure relates to the citizen's private right protection deeply. During process of enacting this act, although various discussions appeared, but we have recognized that there are some irrational articles in the civil execution act. Therefore, when this act applied to actual cases, some inadequate problems which related to the citizen's private right protection occurred. So the amendment to the civil execution act would be needed. I would suggest some particulars for the amendment to this act in this paper as follows. The first, judgment which contains a declaration of provisional execution in article 56 should be eliminated, because this executive title is not necessary furthermore. When the amendment to the part of Ⅴ(demanding procedure) of civil procedure act was done in 1990, but the amendment to the payment order system related with demanding procedure deeply, was not performed. For this reason, judgment which contains a declaration of provisional execution exists until now. This executive title should be eliminated because this one is not necessary in these days. The second, I suggest the elimination of article 17 for the next two reasons. One is that the article 17 violates the principle which immediate appeal is permitted in the case of only individual permitting article exist. Namely, article 17 violates the principle that immediate appeal is available in the particular permitting articles. The other is that when objection against execution is not permitted in the court, disobedience way may not be available, but this situation gives rise to the violation of petition for the judge which preserved in constitutional law as the basic right. The third, I have a question that substantial reasons may be available in the objection against the ruling on commencing a security auction procedure. Article 265 permits the substantial reasons of the nonexistence or extinguishment of a security right as grounds for an objection against the ruling on commencing a security auction procedure. I think that article 265 dose not accord with the general objection against civil execution, so I also suggest this article should be eliminated. General opinion said that the permission of substantial reasons in article 265 is result from the nonexistence of executive title in security auction procedure. But this explanation may not be acceptable, and illogic I think. If according to the article 265, the conflict to judges or judge with objection ruling each other may be occurred. So the improvement of this article should be needed. The fourth, the expression of supreme court regulation for the judicial clerk(‘Rechtspfleger’) is too difficult to understand. This difficult raised from that the regulation enacted after civil execution act. So if the chance to the civil execution act amendment will be performed, the articles of this regulation should be transformed to the civil execution act. Generally, rules should be familiar to citizens, therefore the expressions of law must be more easier to the citizens. The amendment to the civil execution act must be performed along this principle.
  • 12.

    Regulatory Provisions on Asset Management Activities under The Capital Market Act

    정숙연 | 2010, (49) | pp.371~398 | number of Cited : 1
    Abstract
    The Korean collective investment regulation is considered to be first initiated in 1961 as banks started to perform trust works under the Trust Act and Trust Business Act. However, the trust services at that time was merely a subordinate service of banks and the banks began the trust services of its actual meaning since 1969 with legislation of the Securities Investment Trust Business Act. Later the Indirect Investment Asset Management Business Act that practically consolidates the Securities Investment Trust Business Act, the Investment Company Act and other similar investment managements was enacted. In accordance with the liberalization of capital market and the trend of securitization of asset, the new act was legislated for balanced regulation on existing investment trust companies and other similar asset management activities and also to apply same act on entire indirect investment. In addition, the Capital Market Act consolidates financial instruments, defined under various acts such as the Securities and Exchange Act and the Futures Trading Act, by its function to protect investors. That is, there existed too many acts regulating capital market and the range of financial industry was excessively segmented thus its function to protect investors was hardly performed in practice because of the differences in regulative mechanisms in each financial business. The Capital Market Law was legislated to resolve such problems by revising old financial acts. The Capital Market Act introduces a new concept of collective investment scheme instead of the indirect investment from previous Indirect Investment Asset Management Business Act thus leading to a meaningful change to collective investment regulation. In the point that the number of subjects for investment management has been rapidly growing by defining the inclusive concept of financial investment instruments and that the agency problem has came into the fore since the investor group and financial manager as agency are strictly separated, the importance of regulation is not neglectable. The regulation on collective investment can be explained in context of entrance regulation, sound regulation, activity regulation and organization regulation. Especially the activity regulation, as the core content of the new act, is an activity regulation associated with conflict of interest. Although the Capital Market Act regulates the entire process through design, sales and management of fund and also the evaluation of collective investment assets, the asset management regulation can be considered as the core of conflict of interest regulation. To resolve conflict of interest, the Capital market Law provides both direct regulation on practical activities and internal control system as well. This study focuses heavily on activity regulations associated with asset management under the Capital Market Law. The Capital Market Act,compared with the previous Securities and Exchange Act, specifies the conflict of interest activities in detail. However, with a shorter history of collective investment system compare to the developed countries' cases,we still have many weak points to be improved. Thus, at this point of time, a year after the enactment of new act, it will be meaningful to review problems in system itself and interpretation of the new act.
  • 13.

    A Study on Methods Selectively Applying the Ground of Invalidation on Similar Design Registration

    정태호 | 2010, (49) | pp.399~419 | number of Cited : 2
    Abstract
    Korean Design Act Art.7. Para.1.(Similar design) states that the owner of a design right or an applicant for design registration is entitled to obtain design registration for a design that is similar only to the owner's registered design (referred to as “the principal design”) or a design for which a registration application has been filed as a similar design (referred to as “a similar design”). An examiner shall decide to refuse a similar design registration under that provision. That provision is also included in the grounds of invalidation trial. But it will be reasonable that this provision is applied selectively as the ground of invalidation on similar design registration case-by-case, based on general legal principles in Korean design practice and Japanese old design determination standards.
  • 14.

    헌법의 개념(1928) (2)

    Kim,Hyo-Jeon | 2010, (49) | pp.421~477 | number of Cited : 2
  • 15.

    편집위원회 규정

    법학연구소 | 2010, (49) | pp.479~509 | number of Cited : 0