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2014, Vol., No.64

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    The Issues & the Forecast thereto on the System of Correcting Discrimination against Irregular Employees

    ChoSangKyun | 2014, (64) | pp.1~32 | number of Cited : 9
    This research briefly reviews the issues and the operational problems concerning the current system to correct discrimination against irregular employees. It then forecasts the potential consequences from the features newly introduced to the Act on the Protection, Etc. of Fixed-Term and Part-Time Employees and the Act on the Protection Etc. of Dispatched Workers in terms of the policy behind the correction system and the practicability of the same. The results of my research are as follows. First, the current Acts do not treat the job security for irregular employees and the prohibition of discrimination against dispatched workers with the same attitude or degree. As for the job security issue, there is a strong protection that converts termed employment into permanent employment by the requirement of fixed terms. However, as for the probation of discrimination, one can even doubt the effect of the current system due to the problems stemming from the limits on application right and the rigid standard on the determination of discrimination. Further, it is doubtful that the proposed extension of the effects of orders of correction, introduced to resolve these questions, would work as expected, due to the same problems as identified above. Second, the current system simply prohibits discrimination against irregular employees, yet fails to guarantee ultimately equal treatment. This problem becomes obvious when we consider such facts that the regular employees with the lowest labor conditions are the ones compared with irregular employees when there are multiple groups of employees to be compared and that the system uses rational ground as the standard of review in determining discriminatory treatments. Of course, if we require equal treatment, it may be criticized for being the same result as under the equal treatment doctrine in the labor standard act. However, despite such criticism, it would be still desirable to expand the interpretation or to designate the comparison group chosen by the applicant, without having to apply the equal treatment doctrine. Third, it is doubtful that these newly introduced features would work to eliminate the discriminatory practice. The current situation has many different problems, such as the decrease in the number of applications, and the increasing gap in real salaries, therefore one cannot expect the new features, being conservative and passive in nature, will eliminate all these problems at once. Specifically, the contemplated effects of the “expansion of orders of correction” will be limited, because it is a mere addition to the existing “the system on notification and direction of correction.” Finally, we cannot agree with the argument that organizations like employer employee associations shall be permitted to devise a solution at work places. This is because only regular employees participate in such associations, and therefore they cannot adequately represent the interests of irregular employees. As such, in order to implement a system that effectively eliminates discrimination against such workers, a new set of regulations and systems must be introduced, and the government shall continuously and rigorously supervise the labor conditions.
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    The System of Remedy for Dismissal: Unfair Dismissal and Money compensation

    Byung-Woon Lee | 2014, (64) | pp.33~62 | number of Cited : 2
    The Money Compensation System is now operation after its introduction in July 2007 to assist unfairly dismissed laborers. Pertaining to the original intentions of the Labor Standards Act, the outcomes as yet are insufficient to label it a success. This is primarily because the specific standards for use in trial have not been arranged. The Labor Standards Act, along with the National Labor Relations Act, originally sets regulations and pursues prompt navigation of the regulation procedures to protect laborers. However, the Financial Compensation System was also introduced with the same purpose. Since this system can only be applied after the dismissal has been identified as a wrongful one, the parameters governing fair dismissal is of key importance. This paper will explain how the unfair dismissal can be identified, the definition of dismissal, as well as the grounds for restriction. Assuming that it is possible to establish the extent of unfair dismissal, the significance of discharge, the standards to identify unfair dismissal, and the methods to help the workers will also be discussed. To evaluate effectiveness of the Financial Compensation System, systems from other countries to help laborers will also be examined, along with their criteria and regulations and how they may apply to Korea. This paper looked into the present condition and operation method of Korea’s Financial Compensation System, and ways to secure the effectiveness of it. Even though this system is legally binding, it is not operating effectively because there are no objective indemnity criteria with legal standing. The opposition of the industrial world and their lack of promotion to laborers are other reasons for stagnation. The Financial Compensation System was initially examined from the position of workers as it was introduced to protect them. Subsequently; the right to apply the Financial Indemnification System, the possibility for abuse of power, the opportunity to establish a single legal system such as the labor court, and the limits of the Financial Compensation System when considering the coexistence of work and life of laborers are areas requiring further examination.
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    Study on the Requisition of Relief on the Unfair Labor Practice

    Kim Hee Sung | 2014, (64) | pp.63~86 | number of Cited : 3
    This study will review the standing to apply for the remedies with regard to the unfair labor practices. Article 82 paragraph 1 of the Trade Union and Labor Relations Adjustment Act states an employee or a trade union can apply for the remedy to the Labor Relations Commission when one’s right has been infringed by unfair labor practices of the employer. Regarding the detrimental treatment, the disputing employee oneself can request remedy as a principle. The issue is whether an individual union member possess the right to request for the remedy when the rejection in the collective bargaining take place. Further, there are controversies of whether the right of remedy request which applies to union executives for the unfair labor practices due to the intervention on governance, should be given to general employees. That is whether the employer’s intervention in governance justify as a requisite for the criterion for an individual employee to request for remedy to Labor Relation Commission. To note, the Supreme Court of Japan in Kyoto jinowi case (Kyoto City Transit Authority) confirmed the right to request of an individual by rejecting the decision of the first and the second courts of instances of not to admit the right to request of an individual member in person of an union unless there is some unusual circumstances such as to recover the independence of an company-dominated union. And the foundation for such is 「the right to organize and the right of collective action of the employee」. The theoretical analysis of such intention of the judgment lead us to the notion that the ultimate purpose of the unfair labor practice system is to support the right of each employee to organize and to collectively act, and thus each individual employee (union members) should be able to request for the remedy (Each employee’s right to appeal must not be disturbed by the intention of the trade union). However the intention of the judgment bear the theoretic issues by pulling the direct conclusion out from such to put the purpose of unfair labor practice system to protect the right of individual employee to organize and to collectively act. Unfair labor practice system does not simply protect the right of an employee personal. These diversity and complexity of the system of such labor practice forms an overlapping arrangements among the right of each employee and trade union. As such how to determine finely of mediating the interest of each employees and the trade union according the each specific type or issue, therefore reflecting the conglutination of both the interest of the employee and the trade union, and conducting democratic procedure of by the trade union shall be the further task to be reviewed.
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    A Compensation against An Unlawful Strike and The Law

    Song, Kang Jik | 2014, (64) | pp.87~114 | number of Cited : 11
    A problem of compensation with respect to an unlawful strike is recently very serious social problems in Korea. In this article, the author suggest to amend Trade Union and Labor Realtions Adjustment Act(TULRAA) Sention 3. Conclusions of the suggestion are as follows:First, damages for the unlawful strike must be concretely calculated by an adequate causation between the unlawful strike and the compensation, simultaneously a Court should take account of all circumstances of both sides of an employer and an employee those gave rise to the unlawful strike in calculating damages. Second, in compulsory execution to recover damages ordered by a Court, certain portions of the Union properties should be protected from the execution to secure activities of the Union. Third, the author thinks that a necessity of preservation of a right is generally not recognized in getting a decision of a provisional seizure. That is, it is because the necessity of preservation of the right in between an employee and its employer who is under an employment of contract is very thin or not recognized. Finally, in case of the means of the strike was lawful, those who participated in the strike and(or) the Union should be exempted from a responsibility of compensation against an employer concerned, even though the objects or procedures of the strike were unlawful.
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    A study on arguing over the constitutionality in regard to the regulation of the time playing computer games and the contents of games

    CHO JAEHYUN | 2014, (64) | pp.145~176 | number of Cited : 10
    Abstract PDF
    To play the video games has the cultural, commercial, economic and social values. It has also the constitutional values. It be closely connected with the right for pursuit of happiness, the general right to freedom of action, the freedom of expression, the freedom to occupation and so on. However the restrictions on games are demanded consistently. It is provided in the Game Industry Promotion Act, the classification according to age, as the Content-based restrictions. Recently the regulation of the time playing computer games as the Content-neutral restrictions was introduced or proposed. It were the Shut Down System, the Selective Shut Down System and the Cooling Off System. The Shut Down System and the Selective Shut Down System are in effect. It has been the subject of animated controversy to introduce the Cooling Off System. The games do contain expression and are speech. The provision of online games services have the values freedom of expression. So the regulations of the time playing computer games mean the restriction of the freedom of expression. The restrictions on games are classified with the Content-based restrictions and Content-neutral restrictions. The regulations of the time playing computer games would be not Content-based restrictions or Viewpoint-based restrictions, but the Content-neutral restrictions. Therefore we will be apply the rational basis standard or intermediate scrutiny standard instead of strict scrutiny. It has the proper purpose for the children to prevent the game overindulgence. But the tighten and compulsory regulations are inadequate in respect of the Less Restrictive Alternatives. It should be considered seeking alternative for juvenile protection rather than the tighten and compulsory regulations. It follows that it would be the proper way to protect the children to consider the voluntary restraint online game industry, preventive and psychological education, consultation program of connection with parents and prevention program of computer games overindulgence.
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    Supplier's arbitrary termination of the agreement with its business developing agency: is it fair in Korea?

    kang hyelim | 2014, (64) | pp.177~204 | number of Cited : 3
    In Korea, there are many occasions of contractual relationship between a manufacturer and a sole distributor where the sole distributor, at his own costs and efforts, find persons who would establish authorized retail stores to purchase products from the manufacturer and sell them and the sole distributor assist sales activities of the authorized retail stores. In consideration of such costs and efforts to find and assist the authorized retail stores, the sole distributor is paid from the manufacturer certain fees which are proportional to the price of products being sold from the manufacturer to the authorized retail stores. Such contract is not clearly defined under Korean laws, and it will be called as ‘business-developing agency contract’ in this paper. With regard to the legal nature of the business-developing agency contract, Busan District Court ruled that it was a contract for mandate or a contract for a concept similar to mandate. As a result, either party may at any time terminate the contract at will under Article 689 of Korean Civil Act. However, the business-developing agency should be classified as commercial agent, which is one of the forms of mandate which is separately defined by Article 87 of Korean Commercial Act. Therefore, the business-developing agency contract should not be terminated by either party at any time. In conclusion, Article 689 of Korean Civil Act applying to mandate which is generally based on special trust of each party, should not apply to a business-developing agency contract, which is deemed to be classified as an onerous contract, the main purpose of which is to seek profits of each party, and the relationship between the parties in the contract includes certain elements of partnership. Finally, to resolve effectively the complexity with regard to the definition of the business-developing agency contract and laws applying to it, this paper suggests that the provisions on mandate under Korean Civil Act should be amended so that they are applied only to gratuitous mandate contracts.
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    A Review of the Effectiveness of the WTO System by Global Administrative Law Perspective

    Kim Sung Won | 2014, (64) | pp.205~232 | number of Cited : 7
    The impact of globalization on the international society and the transformation of international society’s structure could be marked as the symbol of the 21st century. With the acceleration of globalizing process, various actors including States, international organizations, NGOs and global civil society are actively participating in solving difficult problems drawing attention of the international society. However, broadening the scope of actors in the international sphere does not always bring the bright side of globalizing process to the international society. Various actors are likely to pursue the maximization of their own interests and power, this situation might exacerbate conflicts of interests among various actors without relevant regulatory mechanism striking balance of interest and powers among different level of actors. In this context, the international society definitely needs growing body of law, which regulates global administrative space. Thus, the emergence of global administrative law could be regarded very timely because global administrative law directly touches upon matters concerning the way to establish global regulatory mechanisms in various fields of international law. Rather than the constitutionalization of international law, which is involved in difficult normative and doctrinal contestation, global administrative law could be the best option for regulating global administrative space with using established and familiar principles and requirements such as transparency, participation, reasoned decision and decisional review. The successful application of global administrative law to various fields of international regime could be possible with the empirical case studies. In this sense, reviewing the effectiveness of the WTO system as a case study for global administrative law is definitely needed to direct prospect path of global administrative law. Although there are critiques on patchwork character of global administrative law, important constituting elements of global administrative law, which are mentioned above, already actively explored and widely applied by the WTO system to address problems of transparency and openness of the WTO. The main purpose of this article to explore the possible expansion of global administrative law to every administrative space with the help of the case study on WTO system.
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    A Study on the creativity of choreographic works in Korea

    Kye, Seung-Kyoon | 2014, (64) | pp.233~254 | number of Cited : 10
    This Article is devoted to clarify the concept of choreography under the Korean Copyright Act. There are a few cases on the choreographies in practice. In spite of such a few cases, choreographies are protected as a kind of dramatic works under the Korean Copyright Act. Choreographic works are characterized by the composition and arrangement of dance movements and patterns unlike other copyrighted works. According to the Korean Copyright Act, choreographic works don't need to be fixed in a tangible means of expression such as labanotation for choreography, written descriptions like other works.
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    Effect on Lien between Foreclosure of Disposition for Arrears of Taxes and Commencement of Auction

    이정민 | JEOM IN LEE | 2014, (64) | pp.255~278 | number of Cited : 6
    The goal of this study is to examine whether a lien holder who acquired a lien right through civic proceeding can exercise lien rights on the buyer in an auction to dispose real estate assets that are under seizure due to delinquency disposition before the auction starts. The most recent Supreme Court judgment on validity of lien rights delivered based on unanimous decision gave the first judgment on whether lien acquired after seizure was made on real estate asset based on national tax laws or local tax laws, not civic proceedings, were valid. The majority opinion was that seizure of asset is declared when auction begins in civic proceeding whereas seizure is declared when delinquency is declared in case of asset disposition based on national tax laws. Also, in the latter case, disposition does not necessarily lead to auction proceeding. Also, asset disposition proceeding and civic proceeding are two separate legal proceedings and therefore public auction and private auction process proceed independently. Therefore, just because seizure was imposed due to delinquency disposition, it cannot be construed as the same case where seizure was imposed on real estate asset at the time of start of auction. Accordingly, the court concluded that, even if the real estate asset is under delinquency disposition, that alone cannot necessarily constitute a valid reason for viewing that the lien holder who acquired lien rights from civic proceedings on real estate asset before public auction officially began cannot exercise lien rights on the buyer in auction proceeding. The significance of this ruling is that is provided in-depth discussions on whether there exist legal differences between seizure based on civic proceeding and lien rights acquired after seizure was imposed based on national tax laws and local tax laws, and the basis for such judgment. However, despite unanimous decision, there are still uncertainties surrounding the conclusion. This case pertains only to seizure declaration. However, it still remains uncertain whether the lien holder can contest the buyer if the asset was sold through public auction even though lien rights have been established after seizure declaration.
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    The Definition of Human Right to Water and Its’ Effect on Water Rights

    Ryu, Kwon-Hong | 2014, (64) | pp.279~308 | number of Cited : 6
    Water has consumed at each portion of 70% in agriculture, 20% in industry, 10% in household and personal in history. But, absolute amount of water consumed by human increased with explosion of population and industrial development. Basically, Water itself has regarded as a kind of resources for wealth. Even water is essential for human life, there are over 1 billion people who cannot be provided clean and safe water on earth. 10 Facts on water by WHO show the reason of lack of water resources, the effects of water on health and industry as well as the importance of human right to water clearly. UN recognized that issue of water with energy and food should be an important factor for sustainable development. Last April 5, the president of World Bank, Mr. Kim Yong, said that there might be wars surrounding water and food; and that clean water and sanitation will be critical in the age of climate change; therefore, inappropriate responses to those issues will cause struggles for taking those resources. After the proposal in which human right to water should be a solution for lack of water resources and unfair distribution of it by Professor Stephen C. McCaffrey, water supply necessary for basic human life has been regarded as a kind of basic human rights. Human right to water is an important legal issue from the perspective of international law and constitutional law not only in developing countries but in developed countries in spite of differences in degree or methods for implementation. With evolution of human right to water, it is required that theory of water rights such as riparianism, prior appropriation doctrine, and the issue of the ownership of water should be reviewed. The legal arguments on the definition, however, legal feature, and contents of human right to water can supplement the uncertainty of human right to water. On top of that, the policy of privatization of water industry should be reappraised because privatization is contradictory to human right to water as seen at Cochabamba case in Bolivia. In this article, the issues of the evolutionary history of human right to water, the contents and the actual meaning of it in Korea are analysed.
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    Diversity Relations of ownership of partitioned property on the Aggregate Buildings

    BYUN WOOJOO | 2014, (64) | pp.309~332 | number of Cited : 4
    The purpose of this thesis is to look deeper Diversity Relations of ownership of partitioned property on the Aggregate Buildings so that it may form the national housing stability and stabilize the right relationship. Especially, The Korean Condominium Act was established by law consulting Japanese Act on Building Unit Ownership. So in this respect, it is needed to review the legislation of Japan. It can be understood from two perspectives of Diversity Relations of ownership of partitioned property. In other words, there are many types of the parties to the dispute. First, it is involved as the parties to the dispute, such as separate private owners, the unit owners association, manager and tenants and occupants. Secondly, the right structure of Divided Ownership is complicated. That is unit owner have the right to exclusive element(a portion of a building that is a subject of unit ownership), common element(a portion of a building that is not an exclusive element), grounds of a building or building's grounds and right to use the grounds. This thesis point out several problems of current partitioned property on the Aggregate Buildings such as Basic parties that is, separate private owners, the unit owners association, manager. So, It is needed to understanding Diversity Relations of Aggregate Building and Divided Ownership. As well as This is the most important thing to reconsider Independence of Divided Ownership and The limit of that rights.
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