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2012, Vol., No.54

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    Legal Philosophy of 'The Human Models the Heaven(人法天)' in Ancient China

    김지수 | 2012, (54) | pp.1~38 | number of Cited : 3
    Natural law theory as contrasted with legal positivism has long been recognized as one major theme of scholarly discussion in the Western history of legal philosophy. In oriental traditional legal culture, it has been universal that the human models or shall model the Heaven or the Nature. The traditional concept of ‘Heaven(天)’ has various meanings, such as the sky, the nature, the God, and the truth(Tao: 道). Therefore, the thought that the human models the Heaven can be understood as the base of oriental natural law theory. In line with these viewpoints, this paper tries to analyze several classics and major schools of thought in ancient China, which cover the Five Classics including the Book of Songs(the Shi Ching: 詩經), the Book of History(the Shu Ching: 書經), the Book of Changes(the I Ching: 易經), Chunqiu Zuozhuan(春秋左傳) and Liji(禮記) ; Taoism including Laozi(老子), Zhuangzi(莊子) and Guanyunzi(關尹子); Confucianism including Confucius(孔子), Mencius(孟子) and Xünzi(荀子); Mozi(墨子), Guanzi(管子) and others. In the authorized histories of the Chinese dynasties, these philosophical flows have been emphatically utilized as the primary guide of general legislation as well as administration of justice. I hope that this paper become a small and meaningful profit to the study of the traditional legal history and philosophy as well as the comparative study between the Eastern and Western natural law theory or philosophy in future.
  • 3.

    Constitutional Discourse at a 21st-century Crossroad : Challenging Agenda

    KwonYoungsol | 2012, (54) | pp.39~66 | number of Cited : 4
    The present paper purports to portray the rapid changes in the nature of constitutional law from the global perspectives. In fact the last decade of the preceding century saw the migration of constitutional ideas and institutions, remarkable both in quantity and quality, across legal systems, culminating in what might be called “convergence of constitutions”. One might hardly deny that basic principles of liberal democracy pervade most part of the world, the tenets of human dignity and related rights extend the horizon ever, and the constitutional courts find themselves largely converged on common interpretations. Moreover these phenomena of migration and convergence occur not only across national jurisdictions, but also between and among the national and the supranational level, as in the case of EU. At the same time the evolution of this kind gave rise to the changes in the normative characteristics of the constitutional law, from individual/special to universal/general. It is to be submitted that the advent of information society, globalization, and democratization are the undeniable three factors that engineered the great transition and the paradigm change. As the title of the paper is more or less self-explanatory, a few aspects of the constitutional law were dealt with, in as much as they have some bearings on the discourse the writer attempted to bring forward at this juncture, such as the endurance of constitutions, dramatic changes in sovereignty, constitutionalization of international law, evolving nature of fundamental rights, and lastly intergenerational conflicts. It is believed that the present paper is only a preliminary exposition of constitutional developments as we move into the turn of the century.
  • 4.

    Constitutional Study and Education in the era of Law School System

    Sung, NakIn | 2012, (54) | pp.67~106 | number of Cited : 5
    Following the adoption of the Law School system, a new era for the legal education has clearly begun. Legal studies at the universities that have either adopted the law school system or not are not only important but its programs have also proven to be still standing. Yet it is to note that a more practical and realistic education purpose needs to be established along with changes in the education system made thereof. As much as it is necessary to provide professional legal education and research, we cannot undermine the importance of a more pragmatic education system for the democratic citizen. We should enlighten and spark active participation and cooperation amongst the legal practitioners especially when the Law-related Education Act has been recently enacted and the revitalization of the legal education has become a national agenda. Lights have been shed on the characteristics of the Constitutional Study especially with the active role that the Constitutional Court has lately undertaken. Nevertheless, it still needs to be taught and researched as a separated field of study from the other legal subjects. Hence, the Constitutional Study is to be researched in depth separately from the other legal studies. In order to do so, it is of utmost importance to train and produce scholars that deal with fundamental concepts such that of the Constitutional Law, freedom or nation-state as much as we support legal practices. If we wrongfully over-focus ourselves on the education of the legal practice, we could easily slip and fail to produce competent scholars majoring in constitutional law. In this regard, the legal practice of Constitutional Law should go beyond the usual routine of memorizing cases or composing legal papers and hence delve into the thin philosophical difference between majority and minority opinions.
  • 5.

    The Problems of Restricting the Freedom of a Political Party in Political Party Law

    Manhee Jeong | 2012, (54) | pp.107~148 | number of Cited : 10
    This study analyzes mainly whether the articles in the political party law as the concretizations of Article 8 of the Constitution restrict a political party's foundation and activities, etc are unconstitutional or not in the viewpoint of a political party’s freedom as a fundamental right. Specifically, the recent judicial decision of the Constitutional Court about the Articles to restrict the freedom of a political party will be analyzed in a critical viewpoint. This paper suggests the direction of revision for the political party law. Article 8 of the Constitution ensures the freedom of a political party's foundation and plural party system as an essential element of the free and democratic basic order. For most theories and Constitutional Court, the freedom of a political party's foundation includes the freedom of choice within a political party's organization and its freedom to conduct its activities. However, the political party law stipulates the registration system of a political party, requiring its scale to meet certain conditions(Article 4). The political party law stipulates that political parties shall have five or more City/Do parties and City/Do parties shall have at least 1,000 party members(Article 17, 18). Although these conditions for registration are easier than the conditions of the former military dictatorship, a question about whether the conditions excessively restrict the freedom of a political party's foundation remains. According to Article 44 on revocation of registration, when a political party is established by the National Election Commission becomes incapable of satisfying the requirements for registration and when failing to participate during a specified time, a political party's registration will be revoked (Article 44 Clause 1 Number 1, 2). Moreover, when failing to obtain a seat in the National Assembly after participating an election of the members of the National Assembly and failing to obtain the defined votes, a political party's registration will be revoked (Number 3). In a related problem, to revoke a political party's registration in its failure to obtain a seat after its participation in an election will extremely restrict its freedom. The Constitutional Court has held the registration system of a political party and its requirement for registration as political party is not against the Constitution. The Constitutional Court has held the decision to rejection in the case of adjudication on a constitutional complaint whether the article on revocation of registration as a political party is against the freedom of a political party's foundation (Constitutional Court Decision 2004 HeonMa 256 decided March 30, 2006; 2004 HeonMa 562 decided April 27, 2006). However, I think that the revocation of registration as a political party due to its failure to obtain a seat after its participation in an election is against the Constitution. This results in an obstruction on the advancement of a new political party and its violation of the freedom of a political party's foundation. Therefore, I suggest that this article be abolished. By the reform of the political party law in 2004, the abolishment of a district party chapter also has the problem of being unconstitutional. The Constitutional Court has held that the purpose of the abolishment of a district party chapter is justifiable because responds to providing a structural reform in a political party’s overspending (Constitutional Court Decision 2004 HeonMa 426 decided December 16, 2004). However, this decision can be reexamined for the following reasons. A district party chapter, as the minimum organization of political party in a region, is a precondition for creating the public opinion. A political party should determine whether it establishes a district party chapter. A forced abolishment of a district party chapter by law fundamentally violates the freedom of a political party's foundation and the freedom of selection of a political party's organization. Thus, it violates the principle of prohibiting excessive restriction. In addition, the system of subsidy for a political party from the National Treasury causes a violation on the freedom of a political party from state. We need to review the sum of subsidy from the National Treasury and the standard of its allocation. In conclusion, I suggest that the reform of the legislation ensures the freedom of a political party in full measure. A political party is a precondition for forming the public opinion and a kind of public function, even if the Constitutional Court has held that the articles of restrictions on the freedom of a political party are consistent with the Constitution.
  • 6.

    Bestandsaufnahme und Aufgaben der Menschenrechtserziehung gegenüber Beamten

    Yang, Chun Soo | 2012, (54) | pp.149~180 | number of Cited : 8
    Die vorliegende Arbeit zielt darauf, Ergebnisse der letzte etwa 10 Jahre lang durchgeführte Menschenrechtserziehung gegenüber Beamten kritisch zu analysieren und unter Berufung auf diese Analyse Aufgaben der Menschenrechtserziehung gegenüber Beamten aufzustellen. Zunächst wird Notwendigkeit der Menschenrechtserziehung gegenüber Beamten behandelt (II). Dabei liefert der Autor drei Gründe wie folgt: Zum ersten betont “Plan of Action for the Second Phase[2010-2014] of the World Programme for Human Rights Education” die Menschenrechtserziehung gegenüber Beamten. Zum zweiten ist, dass sich Beamte direkt auf die Menschenrechte beziehen. Zum dritten ist, dass die Menschenrechtserziehung gegenüber Beamten dazu beitragen kann, menschenrechtsorientierte Umwelt und Struktur aufzubauen. Danach geht die vorliegende Arbeit darauf ein, Ergebnisse der Menschenrechtserziehung gegenüber Beamten zu analysieren (III). Zunächst erwähnt einerseits die vorliegende Arbeit Erhöhung der Notwendigkeit, quantitative Ausweitung, Systematisierung und Institutionalisierung der Menschenrechtserziehung gegenüber Beamten als ihre Früchte. Jedoch wird ihre Grenze andererseits gezogen: Formalisierung der Menschenrechtserziehung gegenüber Beamten. Letztendlich schlag die vorliegende Arbeit Aufgaben der Menschenrechtserziehung gegenüber Beamten vor (IV). Dabei stellt der Autor Vision, Prinzipien, vier Kernziele und strategische Aufgaen der Menschenrechtserziehung gegenüber Beamten auf.
  • 7.

    Reviewing the Administrative Law by Interests Balance: Public Right

    RHEE, VAN | 2012, (54) | pp.181~220 | number of Cited : 1
    With the start of “Interests balance” in the recent administrative law, many scholars argue about the needs of reconsidering the existing theories on public rights. Since limited resources have aggravated conflicts between interests, the prior duty of governments is to identify “fundamental interests” which should be protected. Congress should identify these fundamental interests and legislate a law. Therefore, the law should provide general and abstract standards of balancing concerned interests. However, it is impossible for Congress to provide standards suitable for all possible cases which need interest balances. Thereby, limited functions of legislation has threatened “rule of law”. Where the law could not provide perfect or at least appropriate standards of balancing interests, how could legitimate and reasonable decisions be made for each individual case? Particularly, the public rights (standing) is in the center of the administrative law. This paper tried to review the existing theories of public rights in the view of “interests balance”. Regardless of how far results of reviewing the theories could deviate from existing arguments, it is clear that an interests balance approach helps beginners to identify and understand merits and demerits of the existing theories on the public rights. In addition, it seems to be meaningful to review whole systems of the administrative law from an aspect of interests balance.
  • 8.

    Etude relative à l’évolution du droit de la communication audiovisuelle français

    전영 | 2012, (54) | pp.221~254 | number of Cited : 4
    La culture et la politique sont très liées à la communication audiovisuelle. Les avancées techniques dans l’audiovisuel sont permanentes. Le régime juridique de la communication audiovisuelle a beaucoup évolué. Il a fallu attendre les années 1980 pour que soit consacrée la liberté de communication audiovisuelle. Jusqu’alors la radio et la télévision étaient des monopoles étatiques. L’étude de l’évolution de la législation française permet de mettre en évidence le fait que le législateur a progressivement procédé à la libéralisation du secteur de la communication audiovisuelle, de 1982 jusqu’au milieu des années 1990. Puis, sous l’impulsion de la législation européenne, la législation française s’est progressivement orientée vers une mise à jour par rapport au développement des nouvelles technologies. C’est désormais une nécessité pour le législateur que de prendre en compte le développement des nouvelles technologies. C’est ainsi qu’en France, le législateur a anticipé l’arrivée du numérique. Dans cet article, après avoir examiner l'histoire de la législation relative à la communication audiovisuelle française, nous nous efforcerons de montrer de quelle maniere cet exemple peut aider à l'evolution de la politique et du droit de la communication audiovisuelle coréen, notamment par une mise à jour en tant réelle, voir par anticipation, de cette législation.
  • 9.

    A Thought on Construction of Carbon Emission Credit Trading System under 'Durban Declaration on Climate Change'

    LEE SANG CHEON | 2012, (54) | pp.255~292 | number of Cited : 4
    The ‘Carbon Emission Credit Trading System’ is no more omnipotent under The “Durban Declaration on Climate Change”. The international situation is slowly coming out of ‘Kyoto-mechanism’ It's time for carbon tax to be centered, and The ‘Carbon Emission Credit Trading System’ will carry just the subfunction to avoid carbon custom. Perhaps the international fluidity of Carbon Emission Credit in Carbon Emission Credit Trading System will be not so important, but be likely to remain as a subsidy. Concerned with the construction of Carbon Emission Credit Trading System, Firstly, in view of legal essentiality, Carbon Emission Credit should be established more under the influence of ‘public law’ rather than under that of private law. Secondly, In view of the function of ‘Carbon Emission Credit’, it would get to the industrial economy, and turmoil the system of balance of elctricity. Thirdly, the Carbon Emission Credit itself could be no more a financial commodity, Thus there is no reason for KPX to make treat it. In consideration of the real function of Carbon Emission Credit, the KPX should take th duty of trading Carbon Emission Credit. It would be natural for KPX to take the duty of trading Carbon Emission Credit, and it leads to harmonious supply and demand of electricity and peace in industrial.
  • 10.

    Kleine Bemerkungen zur strafrahmenorientierten Auslegung im Strafrecht

    Lee, Jin Kuk | 2012, (54) | pp.293~324 | number of Cited : 0
    In der vorliegenden Arbeit versucht der Verfasser, die Inhalte und Stellenwerte der rechtsfolgen- bzw. strafrahmenorientierte Auslegung im koreanischen Strafrecht zu ermitteln, in der Rechtsanwender bei der Auslegung von Tatbestandsmerkmalen die Art und Höhe der Strafandrohung berücksichtigt. Die Legitimation der strafrahmenorientierte Tatbestandsauslegung ergibt sich vor allem aus der teleologischen Ausrichtung jeder rechtlichen Regelung und dem Verhältnis von Unrechtsschwere und Strafrahmen. Das strafrahmenorientierte Auslegungsmittel bzw. Auslegungskriterium ist zwar kein Unterfall der allgemeinen Folgenberücksichtigung oder traditionellen Auslegungskanones wie grammatische, historische und systematische Auslegung, hängt jedoch mit ihnen eng zusammen. Die strafrahmenorientierte Auslegung spielt als die Unterstützung der traditionellen Auslegungskanones eine wesentliche Rolle. Im Hinblick auf die Tatsache, dass heutzutage sich die Tatbestände mit erhöchten Strafandrohung im koreanischen Strafrechtssystem verbreitet sind, empfhielt es sich, dass man die strafrahmenorientierte Auslegung in der Praxis in noch effektiverer Weise verwenden soll.
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    Which is Defrauding in Insurance Fraud?

    Lee Keun-Woo | 2012, (54) | pp.325~354 | number of Cited : 12
    This article is that I supposed some problems about ‘the violation of the duty of disclosure’ based on “the duty of disclosure in the insurance contract and intention of the insurance fraud” by Il-Tae Huh. In Korea, as the economy gets developed, insurance industries gets bigger and diverse as well. As a result, insurance crimes have increased a lot. The society is confused with the insurance crime including insurance fraud which is the abuse of insurance system. The serious moral hazard is widespread through all insurance fields which are including car, disease, and injury as well as life and fire. By unclear meaning of an insurance fraud and imperfect penalties, an insurance fraud is committed more. The problem is that insurance fraud includes all the fraud actions against the insurance company and it has more large meaning than the insurance crime. The concepts of insurance crime had been compounded in mixture, but now here definitions are separately given to insurance fraud. This article is that the violence of the duty of disclosure before the insurance contract is whether ‘defraud’ of the fraud, Korea Criminal Law 347 is or not. I argued that it is not the defrauding but the unpunished preparation of the Fraud if it has no provision of punishment. And I review the problem about the execution time of insurance fraud. I supposed that the execution time of insurance fraud is ‘asking the payment of insurance’ for balancing on the high term of imprisonment.
  • 12.

    Admissibility of Evidence of Test Result of Blood Sample Taken from Unconscious Drunk Driver without His Consent

    이창섭 | 2012, (54) | pp.355~386 | number of Cited : 7
    Physical examination is a kind of inspection of evidence. As blood test by investigation agency falls with physical examination, it is also inspection of evidence. Blood test involves taking a blood sample. Therefore, if investigation agency tries to take a blood sample from a suspect and test it, the warrant for inspection of evidence should be issued by a judge of a competent district court. But article 216 (3) of the criminal procedure act says “If it is impossible to obtain a warrant issued by a judge of the court because of urgency at the scene of an offense, seizure, search or inspection of evidence may be conducted without a warrant. In this case, a warrant shall be obtained after the act without delay.”According to this article, investigation agency can take a blood sample from unconscious drunk driver without his consent but shall obtain a warrant after the act without delay. In this case, it is ineffective to obtain a warrant before the act because alcohol is quickly diluted in the blood. ‘The scene of an offense’ of this article is to include the hypothetic locus of the arrest where investigation agency could arrest a suspect. ‘Supreme Court Decision 2009Do2109 Decided April 28, 2011’ affirms the applicative possibility of article 216 (3) of the criminal procedure act in the case of taking a blood sample from unconscious drunk driver. In conclusion, Test result of blood sample taken from unconscious drunk driver without his consent may be used as evidence when a warrant for inspection of evidence is obtained after the act without delay.
  • 13.

    The review on the “Special Act on the Punishment of Sexual Crimes thereof”(7-1)

    Sang-Ho Kim | 2012, (54) | pp.387~416 | number of Cited : 5
    In Korea there are many criminal special law is not realized well the spirit of constitutional law and rule of law. It seems hard to avoid a criticism that National Assembly made a rash decision of passing the amendment of Act on the punishment of sexual crimes thereof in october 28.2011. That Act have neither procedual righteousness nor substancial righteousness. Here I want to discuss problems in relation to article 7-1 “Act of Sexual Crimes” and to consider reform measures. The first, girl under 13 as the object of act should be changed into girl under 11 because of early maturity of sex and early first-menses of girl. That girl over 12 or 11 is able to decide on the sexual matter is realistic and scientific. Generally puberty of girl is 2years younger than puberty of boy. For example, if child 14 commits rape against girl 12, Rape offenders and rape victims in relation to sexual maturity is similar. This case should not be punished by the criminal special law but should be punished by the general criminal law. The second, a person commits rape against girl under 13 in existing law is liable to imprisonment for life or to imprisonment over 10 years. Although taking account of opinion and emotion of peoples, the punishment is too heavy. It is against the human dignity in constitutional law and rule of responsibility. Taking into account sexual self decision of child and responsibility of offender etc., that punishment should be over 5 years imprisonment may be proper. But the scope of prison term is too wide because maximum prison term has increased in twice. In fact over 5 years imprisonment is 5-30 years. This is against the principle of No Crime and Punishment without Law. According to the attentative plan of the ministry of justice, rape in criminal law(over 3 years imprisonment; in existing law) is 3-20 years imprisonment. This plan is able to make contribution to legal stability but make no contribution to the principle of relative equality. Therefore it is necessary that should be narrow width between minimum prison term and maximum prison term.
  • 14.

    Restorative justice and criminal justice

    Lee, YongSik | 2012, (54) | pp.417~448 | number of Cited : 23
    The development of victimology and introduction of restorative justice raise not only a criminal interest to victim but also introduction of justice for victim in our criminal system. That is the assertion, that we have to change the ‘paradigm of justice’ in our criminal process with a justice for victim came from restorative justice. But the attempt to compromising traditional criminal justice and restorative justice on the traditional criminal process may make a dissatisfactory result to both sides. So such an attempt methodologically has a definite limit. Well then, I want to suggest that the contents of restorative justice concluded the restoration of criminal damage and justice for victim should not be in the area of criminal justice for the functional realization of criminal law. And I also want to separate two justice procedurally or on policy consideration. The attempt to compromising restorative justice and criminal justice came from the thinking that criminal law and criminal process can accept an ideology and a target of restorative justice and have a policy function for damage restoration and protection of victim. But criminal law and criminal process can not be a omnipotent method to solve social problems. The ‘ultima-ratio’ principle of criminal law points to this meaning.
  • 15.

    The Effect of Korus-FTA Chapter 18 (Copyright) on Korean Criminal Procedure

    정재준 | 2012, (54) | pp.449~484 | number of Cited : 4
    Korea’s economic growth is truly amazing, considering that Korean trade has reached one trillion dollars and the per capita income of Korea is over 20,000 dollars. The federal trade agreement (FTA) to remove the custom barriers between South Korea and the United States of America and place the two countries on equal terms (i.e., KORUS FTA) reflects South Korea’s remarkable development. However, we should ensure that a few issues are resolved before we can expect this FTA with the United States of America to produce economic benefits. The United States of America has been fully prepared to agree on advantageous terms for the KORUS FTA, having established four prerequisites for contracting effectively with South Korea and presenting regular reports continually in the United States International Trade Commission (USITC). Many Korean scholars and experts in FTAs have pointed out that the KORUS FTA will accord more benefits to the United States of America than to South Korea. In light of public opinion, the opposition party was against the FTA. Nevertheless, the ruling party unilaterally agreed to the agreement, due to the belief in the importance of an alliance with the United States of America and that the potential future problems with the KORUS FTA would eventually be resolved. The United States of America, showing the strength of its patent possession, strongly demanded that intellectual property rights (copyright), health care, etc. be opened. Furthermore, it required the Korean government to revise legislations and draw up rules for conducting investigations and imposing criminal penalties according to the KORUS FTA. These clauses could contradict the Korean criminal law system and arouse controversy over criminal policies. Therefore, I examine the general characters and contents of the KORUS FTA (II). In this sense, this paper intends to suggest general alternatives and better choices (IV) after considering two controversial issues. One is the invalidating complaints about illegal copyright (III-1) and the other is the permission of transitory copies (III-2).
  • 16.

    The Scheme to Secure Efficiency of the Investigation into Security Crimes

    Sun, Jong-Soo | 2012, (54) | pp.485~516 | number of Cited : 6
    As the service transacted in the stock market has become complicated and diverse, the violation of regulations is on the rise every day, and has become bigger, organized, more various and intelligent. These prohibited activities in the stock market are referred to as ‘security crimes’. With regard to the concept of security crimes, it can be defined in a narrow sense as the activity which violates the capital market act and therefore becomes the target for a criminal sanction. On the other hand, security crimes in a broad sense include all kinds of criminal activities related to stock transactions as well as the stock crime in a narrow sense. Among the activities occurring in the stock market, security crimes must be restricted criminally by legislators, and its concept corresponds to the purpose of Article 1 of the capital market act, the purpose of restrictions on stocks. Therefore, the concept of security crimes should be understood in a broad sense including all kinds of crimes occurring related to the issue and circulation of marketable securities but needs to be limited to the crimes concerned with the restriction on stocks in the capital market act. Due to the characteristics of security crimes, the current process to deal with it is that the self regulatory organizations of Korea Financial Investment Association and Stock Exchange recognize an offense first and notify it to Financial Services Commission, a national regulatory organization. The national regulatory organization prosecutes only after going through a rather complex and duplicated process of deliberating autonomously through its capital market inquiry committee and securities & futures commission and then going to the prosecution. Because of this, it takes a lot of time from the occurrence of security crimes to the indictment by the prosecution, so the current system to investigate and inquire into security crimes is not efficient. The suggestions to solve this problem is, first, the introduction of a special judicial police system, second, the abolition of plural commissions, such as capital market inquiry committee and securities & futures commission, and third, establishment of a consultative body between the prosecution and financial supervisory organizations. The three suggestions are worth being considered for more effective investigation process into security crimes. However, prior to these institutional remedies, the reflective study of the functions and the main duties of financial supervisory organizations must precede. When a special judicial police system is introduced and the plural commissions are discontinued, the main works of the financial supervisory organizations can be reduced to investigation and punishment. It may improve the efficiency of investigation and punishment, but they will not be able to use its ability to administer and supervise the stock market demanding administrative regulations. Therefore, the suggestion to form a consultative body between the prosecution and financial supervisory organizations is reasonable for efficient and effective investigation and punishment.
  • 17.

    Injuries occurred during a golf game and criminal liabilities

    Seok-Min Shin | 2012, (54) | pp.517~538 | number of Cited : 3
    A sport has right function such as relieving stress, maintaining and improving health, and offering emotional excitement. Golf, despite the lack of physical contact, is getting popular influencing the quality of life extensively. Yet any sport carries some level of risk since there is always a counterpart and players have to compete each other fiercely in order toreveal superiority over one another. In the case of injuries resulting from any sport games, if the injuries are considered as simple happenings and allow to evade further criminal liabilities, the consistency of law as well as the law-abiding spirit can be worsen. However, if players receive criminal liabilitieswithout exception, right function a sport offers can vanish. It is impossible to treat injuries occurred in sport games the same as those in general cases because they are right function in sport games. In particular, it would be unnatural for golfers to take full responsibilities for injuries while playing golf. Some could defense for civil liabilities but no one wants to hold any criminal liabilitiesfor unintentional injuries. Consequently, it is necessary to clarify who is responsible not to mention to define theoretical basis when it comes to the injuries occurred during a golf game. Object judgment, referring to criminal law article 266 in charge of accidental injuries, was issued whether it is valid or not in case of accidental injuries caused to third party by participant or when golf assistant was injured by a golf ball. It was also an issue of law considering cause-and-effect relationship in inferior court Therefore, this paper intends to define legally controversial issues that are criminal law article 17, cause-and-effect relationship and objective revert(Ⅱ), criminal law article 14, violation of caution obligation(Ⅲ) and criminal law article 24, consent of the victim & assumption consent and criminal law article 20 justifiable act in comparison with theparties to a suit, and to review object judgment(Ⅳ). At the end of the paper, the meaning of object judgment and problems to be solved are presented. In conclusion, revision of legislation which allows people to avoid any criminal liabilities from criminal law article 268, charge of accidental injuries. As well as criminal law article 266 in charge of accidental injuries is required because it can protect participants from criminal responsibilities and have jurisdiction justice realized by restoring unintended victims. This is the problem left in object judgment
  • 18.

    the Prevention of the Stolen or Illegally Exported Cultural Heritage and the Law on the Protection of Culture Heritage

    Deokin Lee | 2012, (54) | pp.539~570 | number of Cited : 1
    In reality of society’s approaching to multi-cultural, addicting to nationalistic single-culture system cannot be accepted any more agreeably, but it does not mean that the basis of identity has to be changed or disappeared. So, what we want pursue is laid in developments of incumbent society and nation’s permanency, and this has been inherited from the past, and has to be connected to the future by intermediating now through crystallization called cultural heritages. Cultural heritages do not mean tangible and intangible objects that have excellent creative values by cultural activities, especially designated as protected things from the Cultural Property Protection Law simply, it contains the rise and fall of specific countries and nations together with their immaterial, mental identity symbolically. Based on these reasons, activities of trying to get back cultural heritages having been drained away to abroad are being promoted from government-wide dimensions. However, various difficulties are scattered actually, and the necessity of having to solve these pre-conditional barriers first is coming to the front intensely. That is, concepts on cultural heritages charged with properties have to be changed into value-centered ones, and returned cases of foreign countries shall be reviewed closely together with grasping drained cultural heritage’s status empirically at the same time. In addition, our country has to do early participation in international norms related to cultural heritage protections having been delayed till now, and confirm on whether there are not cultural heritages of foreign countries that have to be returned based on principles of reciprocity in international laws, and hasten restorations to its original countries without any conditions if such objects are existed. Besides, right recognitions on cultural heritages are required to be enlightened so as to correct fetishistic public sentiment in which cultural heritages are regarded as converting means to monetary values, and social environments that instigate it have to be improved too. In relation with this point, current Cultural Property Protection Law is foretelling such like damaging or removing cultural heritages to abroad illegally will be dealt with strict punishments. However, it brought limitations on sentencing processes to practitioners as penalty norms for bluffs literally, and became a punishment of not making general prevention to the society or special ones to criminals. Therefore, the law has to be revised toward reasonable directions so that recognitions of being certainly punished without exceptions could be implanted from relevant penalty regulations.
  • 19.

    Can the Assignee from the Title Truster and the Subsequent Purchaser be admitted as the Third Party in Article 4 (3)?

    권재문 | 2012, (54) | pp.571~602 | number of Cited : 1
    According to the Act on the Registration of Real Estate under Actual Title holder's Name, no person shall register any real right to real estate under the name of the title trustee pursuant to the title trust agreement. This Act was enacted to prevent antisocial acts which abuse the real estate registration system, to normalize real estate transactions, and to stabilize real estate prices, by having any ownership and other real rights to real estate registered under the names of those having real rights so as to conform to the substantial relation of rights. To achieve this purpose, Article 4 functions as the most important measure. By this Article, any title trust agreement shall be null and void, and any change in the real rights to any real estate by a registration made under the title trust agreement shall be null and void. But this rule may arise some problems to the real estate market, because it denies the title trustee's real rights. As the bona fide acquisition (Civil Act Article 249) is not applied to the transaction of real estate, in case assigner is not title holder of real estate, no assignee can acquire real rights to it. So, Article 4 (3) provides the exception to this rule: Invalidity under paragraphs (1) and (2)) shall not be effective in respect of any third party. In this case, the main issue concerning the interpretation of the ‘Third Party’ in Article 4 (3) is this: the assignee from the title truster and the Subsequent Purchaser can be admitted as the Third Party. The Supreme Court's answer to this question is “no”. However, this answer seems half right, because the Subsequent Purchaser should be included in the meaning of the Third Party of the Article 4 (3). The reason is as follows: First, Contrary to the assignee from the transferee can be better protected by being exclude from the meaning of the Third Party, the Subsequent Purchaser can be better protected by recognized as the Third Party. Second, as to similar case, that is the fictious declaration of intention made in collusion with other party(Civil Act Article 108), prevailing opinion admits the Subsequent Purchaser be protected as the Third Party.
  • 20.

    Overview of Auditing System under the Indian Company Law

    Chung Young Sang | 2012, (54) | pp.603~630 | number of Cited : 3
    In this paper the purpose of study is to provide comprehensive understanding of the Indian company law as trade and investment of Korea-India has greatly increased. A legislative foundation for the advancement of the corporate laws of both nations through comparatively reviewing the corporate legislation between India and Korea in respect of auditing system may be laid. In order to achieve the purpose of this study, a deep study was made as follows. India, status of India’s economic progress and evolutionary economic exchanges between Korea and India are surveyed. Legal environmental basis and regional basis for the study of audit system under the Indian company law are analyzed and summarized. The types of corporate entities and the characteristics of the Indian company law that was enacted under the influence of the British law are briefly introduced and then corporate governance structure of company is summarized. The auditing system of both countries are comparatively reviewed according to the history, status, qualification, election and removal, term of office, prohibition of concurrently assuming offices, duty and authority, liability, remuneration of auditor, and establishment, personnel organization of audit committee stipulated under the Indian company law may be reviewed comprehensively. and then the legislative problems are comparatively analyzed. After the results of this study are comprehensively summarized, legal problems of both countries are analyzed, and then legislative recommendations are proposed. There are significant differences between the Korean corporate law and the Indian company law because the Indian company law was influenced by the British company law in terms of exercise methods or status, authority, quorum of auditor and audit committee. However, according to the trend of international unification of corporate laws, both corporate laws will gradually become unified, and in this process the advantages of both corporate laws would be utilized as mutual legislative materials.
  • 21.

    Die Ausstaltung über die rechtliche Bedeutung des Versicherungswerts

    김은경 | 2012, (54) | pp.631~660 | number of Cited : 3
    Der Versicherungswert ist bei der Sachversicherung der Zeitwert der versicherten Sache. § 88 des Versicherungsvertragsgesetzes definiert den Versicherungswert als die Kosten, die der Versicherungsnehmer für die Wiederbeschaffung oder die Wiederherstellung der versicherten Sachen in neuen Zustand unter Abzug des sich aus dem Unterschied zwischen alt und neu ergebenden Minderwert aufzuwenden hat. Die Vereinbarung des festen Versicherungswerts, also der Taxe, stellt eine gewisse Ausnahme vom Bereicherungsverbot dar. Als Sonderregel beinhaltet die Transportversicherug den Versicherungswert der Güter, der der gemeine Handelswert und in dessen Ermangelung der gemeine Wert ist, den die Güter am Ort der Absendung bei Beginn der Versicherung haben, zugleich der Versicherungskosten, der Kosten, die bis zur Annahme der Güter durch den Beförderer entstehen, und der endgültig bezahlten Fracht. In Korea gibt es die bestimmte Auffassung hinsichtlich des Versicherungswerts, nach der der Versicherungswert durch Vereinbarung zwischen den Versicherungsnehmer und Versicherer auf einen bestimmten Betrag, also Taxe, festgestellt werden kann, den das versicherte Interesse bei Eintritt des Versicherungsfalles hat, es sei denn, die Taxe übersteigt den wirklichen Versicherungwert zu diesem Zeitpunkt erheblich. Es wäre ein rationaler Vorschlag zur Reform. Dass verschiedene Massstäbe bei der Feststellung des Versicherungswerts berücksichtigt werden, ist erheblich wichtig, um Versicherung verhältnismäßig zu erhalten. In dieser Hinsicht muß die Bedeutung des Versicherungswerts beim Reformbedarf wieder überlegt werden.
  • 22.

    A Study on the over insurance - by focusing on the relationship of between a valued policy and an unvalued policy -

    JeongKuk Park | 2012, (54) | pp.661~690 | number of Cited : 0
    Over insurance are designed regulations to realize the principle of the compensation for actual losses in property insurance and may vary criteria of whether the over insurance or not, calculation standards of compensation for damages and reward whether a valued policy or an unvalued policy. Compare legally, British Marine Insurance Act is clarify confirmation of the agreed value in a valued policy, there is no regulation on an unvalued policy in German Insurance Contract Law and Japan Insurance Law. By comparison, there are regulations for uncertainty of the agreed value and calculation standards of an unvalued policy in our 「Commercial Code」. The problem is necessity of legislative amendments for the exception rule of section 670 of the 「Commercial Code」 in uncertainty of the agreed value and section 671 of the 「Commercial Code」 in calculation standards of damages. Therefore, I will be discussed in legislative measures to improve the problem on the basis of legal review comparison of terms of over insurance in this paper.
  • 23.

    The Research on the System for the Effective Damages against the Parties who incur losses to the Financial Institutions

    Lee, Seong Woo | 2012, (54) | pp.691~724 | number of Cited : 2
    The government is liable for the stability of the financial system and takes charge of disbursement for preventing the collapse of the financial system. Korean Deposit Insurance Corporation(KDIC) has the 1st liability of the stability of the financial system. So KDIC should collect the Deposit Insurance Fund, used for maintaining the stability of the financial system, which is built up by the guarantee of the Government. Also KDIC has the limited power of the investigation to the parties liable for the insolvency of the financial institutions. for gathering the proof of the torts or the breach of obligations and preserving the properties of that parties. According to the Depositor Protection Act Article 21-2 (7), KDIC may, when it is deemed necessary, for the purpose of the collection of the Deposit Insurance Fund used for the protecting the depositors of the insolvent financial institution, to claim the compensation for damage by that insolvent financial institution, may ask the relevant insolvent financial institution, etc., persons involved in the insolvency or the interested persons to submit materials concerning their business operations and their current properties, to be present (excluding the request for the presence of the interested persons) and inspect them. For the effective damages against the insolvent financial institution- affiliated parties, it should be amended that KDIC may request the interested persons to be present.
  • 24.

    Study on the outside director's duty of oversight

    고인배 | 2012, (54) | pp.725~752 | number of Cited : 5
    The significance of the soundness of the fiscal structure of financial institutions was the lesson from the foreign exchange crisis in 1997 and financial crisis in 2008 in Korea. The topic has, consequently, attracted public attention: The way to a better control structure of financial holding banks. The scheme of outside directors was accepted as one of the reliable institutional control devices for this purpose. The Effective operation of outside director scheme requires, as its conditions precedent, that the independence, expertness, and publicness of outside directors are guaranteed and that outside directors are, to an appropriate level, under the duty of oversight. In September 2008, the Supreme Court of Korea decided that directors of a highly specialized large-scale company are bound to establish and maintain reasonable system(s) to be informed of and/or to obtain reports on the present conditions of his/her company and to obtain reports of the same, as well as system(s) of internal controls. Directors are also under the duty to provide assistance with regard to the operation of such systems. Directors who have neglected their duties regarding establishment of the aforesaid system(s) or who have intentionally disregarded their duty of monitoring, with the effect that they were not aware of the illegality in the acts of other director(s) or employees, are liable for the damage(s) to the company. This decision is said to have imposed the obligation to establish and maintain internal control system(s) on directors of large-scale companies, the concrete shape of which obligation is expected to be given by judicature. Financial holding banks are obliged to establish internal control system pursuant to the Capital Market Consolidation Act in Korea. Moreover, such institutions have already prepared well-functioning internal control system(s) and are maintaining them as well. Therefore, application of the legal doctorine which was established in this judical decision in a way which strongly adheres to its literal meaning would only in few cases lead to the liablity of outside directors for damage(s) occurred by the negligence of their monitoring duty. In this article, the author carried out an analysis of the legal doctorine in the aforesaid judical decision and tried to suggest standards of operation of internal control system(s) of financial holding banks and guidelines of monitoring under such system(s). Development of the same legal doctorine by judicature and theory is expected.
  • 25.

    Some Suggestions for KCAB arbitration fee

    이완근 | 2012, (54) | pp.753~772 | number of Cited : 1
    In KCAB arbitration process, arbitration fee which is determined by KCAB rules should be paid in full by parties in advance. Aftermath KCAB arbitratiors should determine each party's due amount of fee with its final decision. KCAB conventionally declares each party's due proportion of arbitration fee in its final decision, though it does not specify exact amount. Though this kind of decision for arbitration fee is very similar to that of civil procedure in Korea, this make party who has won the case not be able to collect the rest of arbitration fee from its opponent without another legal action. This problem comes from the fact that there is no other way but “Civil procedure cost decision” provided by Court to specify this kind of decision, though this cannot be applied to KCAB arbitration, whether it is followed by judgement of execution or not. However, if KCAB arbitrators change this conventional decision form to directly specifying exact amount and ordering parties who lose their case pay this amount to the other parties, which is also admitted by present rules, This kind of problem seems to be simply solved. Besides, KCAB arbitration rule does not include lawyer's fee in its arbitration cost so this cannot be reimbursed for won party. However, considering same fee in judgement execution is included in legal cost, it seems fair to allow won party to collect its lawyer's fee which is found reasonable.
  • 26.

    International Trade Agreements and the Legal Profession (at the Time of US-Korea FTA)

    Kim, Yong Eui | 2012, (54) | pp.773~798 | number of Cited : 0
    The US-Korea FTA will become effective soon because both of the US congress and Korean congress ratified it. The lawyers in the US, which opened its domestic legal service market to foreign countries much prior to Korea, have expanded their business to virtually global market with strong competitiveness. This article reviewed such strong market position of the US legal profession and suggested what changes the Korean legal service market will face once its market is opened to the US lawyers. Legal service sector is experiencing various changes due to the globalization of the trade according to the trade agreements including the FTAs between nations. This article reviewed specifically what changes in perception, paradigm, and the regulation of the legal profession actually occurred and continue to occur in the US based upon the observation of the changes already the US experienced in its rules and court cases because of such trade agreements. Since Korea lacks such experience as the US has though it opened its legal service market, this article based its study and review of the same issues of Korean legal service market on the experience of the US legal profession which opened its market and have been practicing their laws overseas from since long time ago in its method of approach to the issues. This article intended to encourage the lawyers of the US and Korea to prepare for the complex problems in their practice in their own country and each other's country in relation to the newly created multi-jurisdictional environment. For this, it also focused on the issues of practice regulation by way of comparative review of the regulatory rules of both countries especially at the time when the lawyers of the US and Korea have been allowed to practice their own laws in the other country respectively via the US-Korea FTA.
  • 27.

    A Study on Different Methods of Antitrust Regulations Regarding International Business Transactions That Have Anti-competitive Effects

    Kong Young John | 2012, (54) | pp.799~850 | number of Cited : 0
    Since the cross-border mergers, acquisitions or joint ventures are not infrequently taking place in today's global economy, the interests of many countries are involved due to the transnational nature of these transactions. Controversies may arise especially because such transnational transactions implicate the antitrust issues among the countries involved. The important issues that arise from these cross-border transactions are how international antitrust matters should be regulated and who should have the authority and power to regulate it. First of all, the unilateral application of antitrust law by a country into the practices of a foreign company can be challenged as a violation of sovereign right of the foreign country that the foreign company is located. The assertion of antitrust law through a unilateral and extraterritorial approach is likely to cause the resentment to other foreign countries and to face the risk of provoking them to retaliate against the country that takes a unilateral approach. An alternative to unilateral approach would be bilateral cooperation agreement which means an agreement entered into between two countries with the purposes of promoting cooperation and coordination and lessening the possibility of conflicts due to the differences between the parties in the regulation of their competition laws. The avoidance and management of jurisdictional disputes between the national antitrust enforcement authorities is the main objective of bilateral agreement. Among several advantages in utilizing bilateral agreements, it would be easier for two countries to negotiate and reach an agreement than many countries that have various interests and objectives. However, bilateral agreement may be feasible only between the countries with similar, if not equal, economic powers. Bilateral agreement between the countries with unequal economic powers would be difficult to negotiate and to be implemented. More importantly, even two countries with equal or similar economic powers may have different interests or policies in some antitrust issues. In that context, a bilateral agreement would not be successful if a country decides to enforce its antitrust laws in contravention of the existing bilateral agreement as had happened between the US and the EU. There are several reasons for promoting international harmonization of antitrust laws which is another option for international regulation of antitrust laws. First, today's international business transactions are becoming more transnational. Traditionally, domestic antitrust rules are based on the territorial scope. Such a territorial scope is not sufficient to deal with the cross-border and transnational nature of today's global business transactions and related antitrust matter. Second, not every country has the same national interest or antitrust backgrounds. The developing countries or countries in economic or political transition whose antitrust laws are still evolving may have different interests and antitrust policies. Trying to reach a balanced and equitable bilateral agreement between the developed and developing countries would be a difficult task which makes the option of harmonizing antitrust laws more palatable. One of the possible venues for harmonizing antitrust laws is to use the WTO under which member countries would agree to a harmonization by enacting national competition laws or amending their existing laws pursuant to the agreed minimum standards (*Currently, antitrust issue has been removed from the topics for discussion in the current round of WTO. However, future resumption of WTO negotiations on antitrust policy remains to be seen). Harmonization of substantive antitrust laws should be supplemented with a binding WTO dispute settlement mechanism. However, since antitrust law seeks to regulate the conducts of private companies, not those of governments, the WTO, which is set up to regulate trade flows among countries, may not be well equipped to regulate the conduct of private corporations. The Organization for Economic Co-operation and Development (“OECD”) can be considered as an alternative of WTO as a possible venue for harmonizing antitrust laws because it has been the leading institution for the promotion of multilateral cooperation in competition law and policy. However, its limitation lies in that its program is limited to the making of “soft laws” because its recommendations and guidelines are non-binding in nature. The Korea-US FTA has been recently ratified. The two significant aspects of the Korea-US FTA regarding antitrust and competition matters are promotion of competitive process and increased transparency. The antitrust matters under the Korea-US FTA is mainly to be regulated under the principle of cooperation and consultation. Although the Korea-US FTA calls for cooperation between the enforcement authorities of both countries, important gaps still exist in international enforcement due to the differences between Korea and the US in terms of their legal structures and procedures of each country's enforcement authorities. Also, the Korea-US FTA does not provide the parties with a power to settle antitrust disputes and to enforce their rights in a binding way. It seems that there are several reasons for that setting. First, formal mechanism may not be necessary when informal mechanisms are adequate to ensure compliance of antitrust provisions. Second, informal mechanism is sufficient to ensure compliance due to the existence of reputational effect factor. Third, formal adjudicative methods may not be necessary because there is a strong relationship between the parties involved. Despite the existence of intrinsic limitations of bilateral cooperation agreement in dealing with antitrust disputes, the Korea-US FTA seems to be in the right track because of the strong traditional bond between the two countries and their economic stakes for the success of this particular FTA. Despite the substantial reasons and necessities for harmonizing antitrust laws, there are many obstacles in achieving international harmonization of antitrust laws ultimately. Antitrust law is a set of values, not a set of neutral principles that all countries can share and agree to be bound by. Each country's antitrust law is reflection of its own value system, cultural heritage and historical background. Therefore, one country's antitrust law cannot be easily transferred to and adopted by another country. In conclusion, the successful international harmonization of antitrust laws would depend on the fundamental agreements on the value of antitrust law linked with national self-interest. The necessities for the harmonized antitrust law have been strongly recognized over the years, but the prospect of achieving this goal does not seem to be so promising at this time. On the other hand, bilateral or regional cooperation agreements should be more utilized because they have a better chance of success due to the existence of mutual interest in avoiding jurisdictional disputes between the national antitrust enforcement authorities and adequately managing antitrust regulations between them.
  • 28.


    Song, Kang Jik | 熊谷恵美 | 2012, (54) | pp.851~876 | number of Cited : 3
  • 29.

    A Study on Concurrence of Exclusive Rights Of Application According to Trial For The Cancellation For Nonuse

    Jun, Yong Cheul | 2012, (54) | pp.877~898 | number of Cited : 1
    If the trademark holder forfeits the right after at least two of trials for the cancellation for nonuse are claimed respectively, each of the claimants can deserve the exclusive rights of application under article 8 paragraph 5 and paragraph 6. When a claimee who is the trademark holder trys to abuse the exclusive rights of application under article 8 paragraph 5 and paragraph 6 that a claimee makes third party applicate the same or a similar trademark after they claim new trial for the cancellation for nonuse, the trademark which has been claimed a trial for the cancellation for nonuse can be maintained expediently. There is a probability to make the trial for the cancellation itself uselessly if the trademark holder takes advantage of loopholes in the trademark law, thus it needs to regulate the misuse of exclusive rights of application under article 8 paragraph 5 and paragraph 6. This paper reviews the concurrence of exclusive rights of application according to trial for the cancellation for nonuse and suggests a solution to the problem thereof.
  • 30.

    동아법학 54호 부록

    법학연구소 | 2012, (54) | pp.899~931 | number of Cited : 0