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2013, Vol., No.59

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    The Nature of Corporal Punishment and Its Constitutional Limits — Focused on the U.S. Precedents Concerning Corporal Punishment —

    Jong Geun Lee | 2013, (59) | pp.1~30 | number of Cited : 2
    In our case, school corporal punishment causes social issues constantly in spite of the fact that the international community clarified that corporal punishment infringed upon human rights, and that almost every industrialized society refused to use corporal punishment as an educational tool. The purpose of this writing is to get implication deduction from a study on the way to handle corporal punishment from a constitutional perspective. As of 2012, eighteen states in the U.S. still approve to inflict corporal punishment despite a number of researches indicating that corporal punishment creates very serious risks to children. There are differences in discussion about corporal punishment between Korea and the U.S. in two aspects. One is that only corporal punishment inflicted in public schools comes to questions. So corporal punishment used in private schools does not bring up a problem of violating human rights, but committing a tort. The other is that they see corporal punishment as a matter of law in the U.S. This viewpoint cast a big implication on Korean attitude toward corporal punishment which sees corporal punishment as a matter of pure educational policy or universal human rights. We can not deny that corporal punishment, of course, is tinged with educational policies. And corporal punishment necessarily infringe on the constitutional fundamental rights including the dignity of man and personal liberty, etc. In this sense, we need to harmonize the perspectives on the corporal punishment of Korea and the U.S. Corporal punishment, even though it can be said to violate fundamental rights guaranteed by the Constitution, seems to be still allowed under the principle of proportionality stipulated in the article 37 section 2 of Korean Constitution. So it is time to decide if corporal punishment is allowed distinctly or not in the context of education.
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    Entrapment Investigation and its critical study focused on the Precedents

    Lee, Changhyun | 2013, (59) | pp.31~75 | number of Cited : 9
    Though substantive enactment on entrapment investigation is not expressed in the current Criminal Procedure Code, the entrapment investigation is relatively and widely used in the investigation such as bribery case, and the problems on its illegality are being constantly raised. Thus, this paper investigated means and principle of the entrapment, criterion of illegal entrapment and its effects through the precedents, and critically studied such issues. There are two different forms of entrapment in the precedents on the means of entrapment. The first type of entrapment is that the police offers an individual the opportunity to commit a crime, and another one is that the police offers an individual the criminal intent activity. The entrapment offering the opportunity to commit a crime was excluded from the scope of entrapment investigation. However, the entrapment offering the opportunity to commit a crime was recognized that it was not an illegal entrapment investigation, and nowadays, its entrapment has been recognized as a legal entrapment in some cases. Therefore, the entrapment investment offering the opportunity to commit a crime as well as the entrapment causing the criminal intent activity are recognized as the entrapment investigation. In addition, in the way that concept of “Entrapment crime” rather than “Entrapment investigation” would be rationally recognized for the purpose of arguments of the general entrapment investigation, this paper suggests for the appropriate use of the term. And regarding criterion of illegal entrapment, a comprehensive theory, comprehensively considering subjective criteria and objective criteria, has been mainly involved in the precedents and majority theory. But actually, comprehensive criterion has not been generally acceptable for the precedents if being recognized as the illegal entrapment, and moreover, comprehensive theory has been acceptable for the legal entrapment, but it needs crucial conditions to consider whether investigative agency or any other person, who conducted criminal activities, engaged in an evil trick or scheme under the connection with certain investigative agencies. For that reason, investigative agency related to investigation and proceedings encourages a person to commit a crime so that the officer can have him/her prosecuted for that crime and in order to impose a criminal penalties, and then if entrapment occurred, investigative agency has been criticized due to its double-blind and act of betrayal to prove that its agency has not directly involved in the entrapment. Accordingly, this paper emphasizes that an illegal entrapment investigation would be considered on the basis of the specific standards related to the comprehensive theory but rather whether directly involved with investigative agency. Finally, as the results of the illegal entrapment investigation, the precedents have continued to follow judgement of dismissing public prosecution due to the crux involved in judgement of not guilty in the early time, but exclusionary rule is basically applicable for all the evidences as its rule is expressed and enforced in the current Criminal Procedure Code, and then admissibility of evidence collected from the illegal entrapment investigation is fully denied, and as the results, it makes sense to find judgement of not guilty against the illegal entrapment investigation, and its finding would rationally contribute to the defendant's rights and principle of due process of law. Therefore, this paper suggests that the judgement of not guilty is more pertinent.
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    Une étude sur la multiplicité des statuts des enquê̂teurs au sein des parquets

    KIM TAEK SU | 2013, (59) | pp.77~106 | number of Cited : 3
    En Corée du sud, il y a plus de 5560 enquê̂teurs en dehors de procureurs, qui travaillent au sein des parquets comme officier de police judiciaire, mandataire de procureur ou greffier de parquet. Ils mènent les enquê̂tes judiciaires, traitent les affaires à la place de procureur et rédigent les procès-verbaux en assistant aux interrogatoires des procureurs. Le statut d'officier de police judiciaire ne peut trouver ses fondements légaux bien clairs. Malgré le postulat de mandataire de procureur, en rélalité, les enquê̂teurs possèdent un certain degré d'autonomie et risquent de atteindre aux principes de la légalité de procédure pénale et de procès équitable énocés par la Constitution. Les greffiers de parquet assistent en général aux investigations de procureur et mê̂me interrogent les suspects. Cette situation mets en cause la valeur de procès-verbal dans l'administration de preuve. La multiplicité des statuts des enquê̂teurs pose un problème concernant l'auteur de cette action. Le mandataire de procureur mène des enquê̂tes non seulement en tant que procureur mais aussi officier de police judiciaire, de sorte qu'il faut considérer leurs actions comme celles de officier de police. Pour maintenir le système de mandataire de procureur, il faut mettre leurs actions sous le contrôle direct de procureur en précisant le mandant. Pour confier le pouvoir d'investigation aux enquêteurs de parquet, il faut également préciser dans le Code de procédure pénale ce pouvoir en les distinguant des officiers de police judiciaire.
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    A study on the fact finding in the murder case without a body by the indirect evidence

    Bae, Moon-Bum | 2013, (59) | pp.107~155 | number of Cited : 9
    The body is the direct evidence in the murder case. There is no body in the murder case without a body. Thus, the suspicion of murder must be proved by indirect evidence or circumstantial evidence. The indirect evidence and the direct evidence are equal in the probative force of evidence. The judge use the principle of Free evaluation of evidence in evaluating the evidence submitted. And the principle of Free evaluation of evidence is based on the logic-rule and the experience-rule. The experience-rule is inferior to the logic-rule. Therefore, the principle of Free evaluation of evidence is insufficient in the murder case without a body. Eventually, an alternative methodology should be necessary for the murder case without a body. The Indirect proof can be used in the case that the probative force of the evidence submitted is weak. But, the indirect proof is rather a compulsion than a proof. Even though the proof will be completed, there will be a suspicion of survival possibility of the victim. Thus, the argument from ignorance can be used to eliminate the suspicion.
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    Countermeasures against sexual offences against children and the introduction of "Good Samaritan Law" to the Republic of Korea

    Jonghaeng Yoon | 2013, (59) | pp.157~195 | number of Cited : 5
    Even though numerous special statutes imposing heavy punishments for the inhumane crimes such as sex offences against children have been enacted, people have been frustrated with the weakness of social security in South Korea. Heavier punishment, chemical castration, or reenactment of death penalty cannot be the solution. Besides the expansion of crime prevention nets including CCTV, child welfare institutions, effective medical treatment, and specialized rehabilitation programs, the introduction of a limited form of the “Good Samaritan Law” is required in Korea's current situation. Considering the Korean traditional communitarian culture and sentiment, the “Good Samaritan Law” will be generally approved by the people. In the Korean Criminal Code, an article that requires notification of authorities or available aid to rescue other people in emergencies should be added for a deterrent effect. Also, the Good Samaritans should be given immunity for his or her assistance of others in peril without any compensation or duty to rescue. However, if it takes much time to get citizens' support for this law, a more limited form of this law imposing just duty to inform authorities is required in Korean Criminal Code or in other special statutes such as Korean “Sex Offences Against Children Act”.
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    A Critical Study on Labor Dispute and the Notion of Crime

    Jin-Kyung Song | 2013, (59) | pp.197~231 | number of Cited : 5
    Abstract PDF
    One of the goal of criminal law is to help members of society enjoy meaningful quality of life peacefully and flourish individuality to the fullest. On the other hand, criminal law uses punishments as the most powerful means in order to achieve the goal. We should use criminal punishment at the last moment when the use of compensation for damages or administrative penalty is ineffective for supporting social peace because the essential nature of criminal punishment is harm. In other words, people’s act to become subject to judge whether the act comes under a certain crime before imposing criminal punishment is not every act but harm other people and unacceptable level if we can understand that the nature of criminal punishment is harm. The constitution of the republic of korea ensures three fundamental rights of workers. The core of the principle of social state as a structural principle of the modern countries is the realization of practical freedom and equality. We can say that the constitution have adopted the principle of social state by stipulating fundamental social rights including three fundamental rights of workers. But in reality, the legal issues have been discussed whether strikes of workers violates the interference with business by the threat of force in criminal law even if workers went on a peaceful strike. In order to judge whether an act constitutes a crime or not, the precondition is that the act has a harmful influence in society appropriating for regarding it as a crime. As a result, the viewpoint which regards the exercise of right of collective actions that has a goal to support and make better working conditions and improve the socioeconomic status for workers as a crime that has a bad impact in society should be sublated.
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    PAK HYUNJUNG | 2013, (59) | pp.233~258 | number of Cited : 5
    Une des dispositions fondamentales du droit civil est prévue par l’article 1134 alinéa 3 du Code Civil qui dispose que les conventions « doivent être exécutées de bonne foi ». Cela signifie que les parties à un contrat ont une obligation de loyauté l’une envers l’autre, elles ne doivent pas faire preuve de malice en se retranchant derrière une application à la lettre de la convention ou au contraire en profitant des lacunes du contrat. Cette obligation d’exécution de bonne foi, principalement sanctionnée par l’allocation de dommages intérêts, s’impose à tous les stades du contrat. L'obligation de bonne foi pèse particulièrement sur le professionnel. La mauvaise foi interdit l'utilisation des clauses limitatives de responsabilité, en particulier lorsque le professionnel n'a pas accompli sa mission. Les arrêts de Cour de Cassation, Assemblée plénière du le premièr décembre 1995 déclarent que vu les articles 1709 et 1710, ensemble les articles 1134 et 1135 du Code civil, lorsqu'une convention prévoit la conclusion de contrats ultérieurs, l'indétermination du prix de ces contrats dans la convention initiale n'affecte pas, sauf dispositions légales particulières, la validité de celle-ci, l'abus dans la fixation du prix ne donnant lieu qu'à résiliation ou indemnisation, et que vu les articles 1134 et 1135 du Code civil, et la clause d'un contrat de franchisage faisant référence au tarif en vigueur au jour des commandes d'approvisionnement à intervenir n'affecte pas la validité du contrat, l'abus dans la fixation du prix ne donnant lieu qu'à résiliation ou indemnisation. L'obligation de bonne foi se traduit ensuite par une exigence d'équilibre et de justice contractuelle dans le contenu du contrat. Il s'agit du principe moral de la réciprocité qui se traduit par ailleurs dans l'exigence de la cause. Sur l`influence théorique à droit coréen, d`abord le lien de l'autonomie de la volonté et le principe de bonne foi se souleve. Conseil constitutionnel de 3 août 1994 déclare qu'aucune norme de valeur constitutionnelle ne garantit le principe de la liberté contractuelle.
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    A study on changing of prospect and seller’s liability

    BYUN WOOJOO | 2013, (59) | pp.259~285 | number of Cited : 3
    Recently, the right to enjoy comfortable environment has been increased. In other words, an improvement of living conditions leads to the concern on the profit of prospect or prospect right. The profit of prospect involves feeling comfortable and taking a rest to enjoy a view of good scenery, such as natural or historic scenery. Concerning with Possibility of legal protection of prospect right, there is no well-defined rules of prospect right in Korea. So, it has been argued that whether prospect right is reflective interest or an independent legal right. Korean courts have not actively recognized the independent legal right of prospect. Therefore, in this thesis, I re-examined the judicial precedent of Korea and Japan that gives a significant impact on the trial of Korea. So, There is a need to review whether profit of prospect can take a legal protection under any requirements. And we must review a some degree of infringement that establishes tort also. In this regard, It is important Whether the seller can acquire the status that control the change of prospect in status.
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    The incorporated possibility of civil procedure in german consummer collective lawsuit

    Lee, Myoung Min | 2013, (59) | pp.287~323 | number of Cited : 13
    There is small sum, many damage of mass production and mass consumption today. But there is very difficult to solve the this problem through the civil procedure system. Especially we need suit-form for the solving the group problem to solve the group trouble in connection with consummer and to protect for the consummer's profit. In germany they not only protect the consummer's benefit through the guideline of the European Union in 1998 but also influence in germany civil procedure. In the other hand, collective consummer action in Consummer Protect Act in Korea was introduced through the class action (Verbandsklage) in germany. And KapMuG appropriate for an institutional strategy to solve the group trouble. UWG § 10 (Gewinnabschöpfungsanspruch) was acknowledged the compensation. We must consider this point between germany and korea. We must consider the incorporate possibility of civil procedure in german class action. Through this unification in civil procedure we can improve the problem in appointed party system and joint litigation system. And we must endeavor for pursuiting of Quickness, Economy, Equity and Resaonality in Ideal of civil procedure.
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    Legal Issues of Insurance on Liability from Electronic Commerce

    JinHee Hong | 2013, (59) | pp.325~359 | number of Cited : 4
    Abstract PDF
    In recent years, various E-Commerce related accidents are occurring frequently due to the increase of E-Commerce in Korea. Consumer’s damage caused by these has become a serious problem. Laws relating to E-Commerce has been revised to the strengthen responsibility of E-Commerce merchants for consumer protection. In these situations, the E-Commerce merchants need to be aware of their legal status and their liability. They should seek to take advantage of the insurance as the Institutional mechanisms. In this study, the following are presented as a way to demonstrate the original features of the E-Commerce Insurance system. First, there is a need to actively induced for e-commerce operators to join the e-commerce insurance. If E-Commerce merchants could take up a E-Commerce Insurance, it is expected to have a positive impact like to improve the company's image and promotional effects ect. Second, there are the need to develop E-Commerce Insurance blanket policy, because the E-Commerce merchants are held different responsibilities in accordance with the several law. In my opinion, there is a need to general policy of E-Commerce insurance to standardization, and the institute replacement clause to diversify the coverage and indemnity and so on. Third, the growth potential of E-Commerce Insurance is likely to sufficient due to the increase of E-Commerce-related accidents. Nevertheless, only some E-Commerce merchants has E-Commerce Policy due to the high premiums and stable insurance loss ratio. There is a need to come up with ways that they can benefit from affordable premiums such as group insurance. Accordingly, the active use of insurance E-Commerce could be possible, we can protect E-Commerce’ consumer and E-Commerce merchants from the litigation and liability resulting from the accidents associated with the E-Commerce, will ultimately be able to build a sound credit society.
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    A Review on the Threat of Force in International Law

    Kim Sung Won | 2013, (59) | pp.361~386 | number of Cited : 0
    Article 2(4) of the United Nations Charter sets out the rule prohibiting not just the use of force, but also the threat of force in international relations. This twin prohibition is understood as one of the main pillars of the international system, because it not only requires from states to abstain from the use of force but also to exercise self-restraint and abstain from anything provocative that could potentially degenerate into the use of force. However, the threat of force, although equally important in terms of its normative status to the prohibition on the use of force, has attracted far less academic commentary to date. Put differently, little attention has been paid to the meaning and content of the notion of 'threat of force' or to the legal scope of its prohibition. The lack of important cases of the ICJ might be nominated as one reason for this situation. Also, the indeterminacy in the identification of a threat of force affects the legal treatment of such threats, because facts feed into the legal assesment of threats of force is further complicated by rule indeterminacy, notwithstanding the ICJ's variant efforts to construct a minimalistic legal regime on the use of force. Also, theoretical debates on the interpretation of the threat of force exacerbate the uncertainty in the meaning of the threat of force. However, there is a growing need for re-considering certain role of the threat of force in relevant situations. For instance, threats to avert a humanitarian catastrophe, defensive threats such as threats as actions in self-defence, institutional threats of force and unilateral threats in the enforcement of collective security obligations are suggested as a legally permissible and legitimate version of the threat of force in international law. This article explores the possible legality of threat of force in certain conditions. First, this article addresses the historical effort of international society to outlaw the threat of force in international relations with reviewing the jurisprudence of the ICJ on the cases concerning the threat of force. Second, this article examines various theoretical approaches to the identification of the threat of force in international law. Lastly, this article suggests certain situations that make threat of force permissible under international law with focusing on the threat of force used for non-forcible self-defence.
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    The Responsibility of ISP and Duty of Filtering

    Choi, Sang Pil | 2013, (59) | pp.387~412 | number of Cited : 1
    In 2004, the Belgian rights management society took Scarlet to court over its customers' unauthorised peer-to-peer sharing of musical works. The Brussels Court of First Instance imposed burden on Scarlet to filter its networks, Scarlet took the case to the Brussels Court of Appeal. The appeal court asked the European Court of Justice (ECJ), whether ISP stand in duty of filtering or not. The court order was probably illegal, because EU laws protect the privacy of communications, the right to protection of personal data, and freedom of information. It should be keep the balance between the protection of intellectual property and the regard of personal right and freedom. The constitutionalism means that the rule of law is to set store by public opinion, and it should be achieve when the copyright-holder harmonize his interest with others'.
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    Transnational Legal Education in Korean Law Schools

    Ji Won Park | 2013, (59) | pp.413~441 | number of Cited : 4
    Our lives has become more and more international. Everybody says “internationalization” or “globalization”, however it is hard to describe exactly what they mean with confidence. The same ambiguity was laid on legal education. In 2009, when Korea first introduced US-style law school, the proponents of new regime argued that one of the main purpose of new establishment was to train lawyers to be competitive in the globalized legal market. 4 years has passed since then and the lawyers who have been taught under new system have continued to debut. Maybe it is too soon to evaluate whether they are ‘globally’ competitive or not, however it is soon enough to appraise whether they have been taught enough basics on transnational legal affairs. Unfortunately our conception of law and related legal education have not been followed up much as far as ‘transnational elements’ in the legal affairs are concerned. What are covered in the law school education still remain basically local, and transnational aspects of legal affairs have not been covered enough. I believe that lawyer who is well trained for the transnational legal affairs in a specific category of law is the lawyer whom we intended to bring up through the new regime of legal education. Transnational legal affairs itself cannot be the aim of legal specialty. Hence all law schools should consider requiring basic transnational law courses as necessary. It is especially difficult to do so with the first year students because of their limited background in legal knowledge. So basic transnational law courses may fit well with 1st semester of 2nd year. And the importance of legal research course should not be underestimated. In the context of transnational legal education, the future lawyers will be better off, if they can understand legal theories of another jurisdiction. However time constraint and the burden of teaching local law make it virtually impossible to be covered in law school curriculum. Hence I suggest legal research course of U.S. law as a reasonable alternative to the given circumstance.
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    동아법학 59호 부록

    법학연구소 | 2013, (59) | pp.443~475 | number of Cited : 0