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2014, Vol., No.65

  • 1.

    A Model Study for Decentralized Constitution

    Myung, Jae Jin | 2014, (65) | pp.1~38 | number of Cited : 5
    Abstract
    The 30 years old Korean Constitution has urgent task to reform local autonomy system. The centralized authoritarian rule in korean political history made local autonomy system aborted. Compared with other constitutions, many countries have introduced decentralized local autonomy system. Switzerland has transferred central authority to local government through the constitution revisions. In 1992, France has declared itself as decentralized state. In 2011, the United Kingdom has made localism act, to fulfill local autonomy system and endeavor to ensure the participating rights of people in local autonomy. To reform our local autonomy system and bring the balanced development between regions, we need to introduce federal system and direct democracy in Korean Constitution. The federal system grants the local government independence and therefore it brings balanced regional development. The federal system requires also bicameral system as protection system for the local government. Especially the german senate, which represents local governments, can be a best constitutional model to give local governments having voices over region related bills. Direct democracy protects participations of local people in forming of national policy and therefore it contributes balanced development between regions. Switzerland has prescribed referendum and popular initiative in constitution, which compensate and dynamize representative democracy through civic participation. For the realization of decentralized State with federal system and direct democracy, it requires some prerequisites. First, authority division between federal government and state government must be clearly prescribed in constitution not in law. Secondly, the abstract normative control and federal dispute mediation system of germany must be introduced to our constitution to solve the differences of opinion over the federal and state laws. To protect free democratic basic order of constitution, federal government intervention in state problems must be also introduced.
  • 2.

    Review of the Rules on Korean Courts’ International Jurisdiction over a Civil Case

    Kim, Yong Eui | 2014, (65) | pp.39~67 | number of Cited : 0
    Abstract
    The general rules upon which Korean courts decide to exercise the jurisdiction over a civil case lie in Korean Civil Procedure Act. A principle which is a core of the rules is the “Land-Governing Principle.” On other words, the domicile or the residence of the party (especially the defendant) to the case has been the most important factor in deciding the court’s jurisdiction. The history of Korean courts’ international jurisdiction over a civil case is not so long. Until 2001, there was no statutory provision in Korea on the international jurisdiction over a case related to the property rights. Civil cases with the foreign elements started from the family law related disputes and, in 1972, the first Supreme Court (the “Court”) decision on the international jurisdiction came out from a civil case related to property rights. However, even up to now, there are not so many Court cases dealing with the international jurisdiction. As international business transactions increase in Korea, the number of cases also increased. Now, about 100 civil cases where international jurisdiction was at issue were decided by multiple levels of the courts in Korea. Together with the fact that the history of international jurisdiction is short and there are not sufficient number of cases, the statutes to govern the requirements and standards for the courts’ exercise of the international jurisdiction are not yet well settled or provide clear and detail descriptions thereof. In addition, it seems that well established directives of the cases regarding the requirements and standards are also lacking. Until 2001, without any statutory provision or reliable international treaty, the Court had set forth such standard for the international jurisdiction as is called the “Sound Reasoning Test.” Later the Court applied, mutatis mutandis, the ‘Land-Governing Principle” which is the governing principle on the jurisdiction over the domestic civil cases. Up to quite recent days, majority of the Court cases have applied the so-called “Modified Land-Governing Principle” to decide the international jurisdiction. Though the article 1 and 2 of the Private International Act effective since 2001 provide for the international jurisdiction as statutory rules for the first time, they seem to have made an abstract declaration rather than being specific rules or standards thereon by stating in sum that “the court shall follow reasonable principles compatible to the ideology of the allocation of international jurisdiction in judging the existence of the substantive relations and the court should judge whether or not it has the international jurisdiction considering the jurisdictional provisions of domestic laws and it shall take a full consideration of the unique nature of international jurisdiction in light of the purpose of setting forth the principle and governing law on the international jurisdiction over the legal relationship with foreign elements.”So far the lower courts seemed to acknowledge more expansive scope of international jurisdiction in interpretation and application of the PIL provisions than the one generally accepted internationally. In addition, the standards for their decision were diversified and not consistent rather than being settled in unified direction. It seems that the main trend of the courts is to maintain the existing Modified Land-Governing Principle or even to further strengthen the same principle through their decisions even after the establishment of the PIL. This article views that Korean courts, lawmakers, law practitioners, and scholars should make variety of efforts for the courts to exercise international jurisdiction based on the consistent and unified standards. In addition, this article suggests that Korean courts refer to the elements of the minimum contact theory and the key facts constituting the elements of the theory established by the US courts. For there are 50 states with their own constitutions and judicial branches and the courts of each state have accumulated sufficient experience in deciding interstate jurisdiction cases for long time. The purpose of this article is to arrange the current problems in a way of illustration for Korean courts to exercise the international jurisdiction over a civil case according to the rules compatible to the internationally accepted rules and to properly interpret and apply the article 2 of PIL. Thereby it aims to contribute to enhancing the predictability and legal stability not only domestically but internationally and achieving the status of internationally recognized and reliable forum in the world. Especially, This article is written in English to be of good reference for not only Korean scholars and practitioners but the foreign scholars and practitioners with good interest in Korea citing and reviewing as many foreign cases and theories as possible in comparative way of study.
  • 3.

    Chinese Tourism Law and its Major Issues

    KIM JUNG JIN | 2014, (65) | pp.69~102 | number of Cited : 0
    Abstract
    Recently China is worrying about China’s country image as well as the development of travel industry. With respect to travel industry, China has struggled against the problems for several years, that is to say (1) the absence of overall regulation associated with it, (2) the countermeasures about turning it into negative caused by travel of dumping, (3) a fall from grace for China sightseeing image, (4) weakening of the management and supervision of travel department. Particularly, ‘travel of dumping’ has positive aspect in that it provides domestic and oversea travel opportunity with a cheap price for travelers. However, it has negative aspect causing a fall from grace for China sightseeing image. It is also aggravating the profitability of travel agency stemmed from the uniformity of travel packages. To make matter worse, unlicensed tour guides are harming the order of travel market. The study examines, thus, Chinese Travel Act which is legislated in order to solve these problems. First of all, it studies the legislation background of previous travel related law, and examines the necessity and the purpose of enacting Chinese Travel Act. And then it prospects how the legislation of the Act has influenced the travel related patricians--such as traveler, travel agency, and tour guide—tourist site, and the protection of cultural properties. Lastly, it analyzes civil law problem in the current Travel Act related with the travel contract, and reviews its resolution together.
  • 4.

    On the Admissibility and Reliability of the Codefendant’s Confession

    Jin-Kyung Song | 2014, (65) | pp.103~124 | number of Cited : 3
    Abstract PDF
    Criminal defendant has the right of silence secured by article 12, clause 2 of the Korean Constitution and in order to materialize the Korean criminal procedure has article 244-3 of ‘announcement of right to refuse to make statements’, article 266-8 clause 6 and article 283-2 of ‘announcement of right to refuse to make statements’. Korean criminal procedure act has the Article 296-2 of ‘Examination of Defendant’. Therefore, it is not possible that public prosecutor interrogates codefendant as one of the witnesses or defendant has an opportunity of cross-examination of codefendant. For this reason, Supreme Court has not regarded the statements of codefendant as sworn statements of witnesses. Supreme Court has held that it is possible to use the statements of accomplice as evidences that satisfy qualifications for admissibility of evidence only if accomplice as witness make a sworn statement by separating the pleading because of securing the right to cross-examine accompliceIn a view point of constitutional criminal procedure, using statements of accomplice as statements of witness by separating the pleading mentioned above may be a plan as the last resort to secure the defendant’s right of cross-examination, this method could infringe on the accomplice’s right of silence. According to a research paper published in 2013, reversing the judgement of the first trial, the appeal court ruled the defendant not guilty on 170 cases out of the 540 violent crime cases occurred from 1995 to 2012. The main reason is accomplice’s false statements. Korean criminal jurists have already pointed out fact-findings on the basis of confessions of accomplice have the risk of false charges. In order to prevent misjudgement caused by false confessions and human rights violations caused by investigation depended upon defendant’s confession, the Constitution and criminal procedure law stipulate some provisions on corroborating evidence. I think that accomplices cooperate with each other when they commit a crime together, however, they shift the responsibility to others. There is a possibility that a defendant even points out a third person unrelated to the crime. Nevertheless, the Supreme Court has held that a statement of accomplice written in protocol of trial has admissibility of evidence on the basis of the statements conducted in the presence of judge by applying the article 311 or the article 315 no. 3. This interpretation could violate the ideology of finding of passive substantial truth and the purpose of the criminal procedure for the examination of evidence. It is better for the Supreme Court not to apply the article 311 or the article 315 no. 3 in statements of accomplice or to specify that the articles could not be applied to statements of accomplice by revising the articles.
  • 5.

    A Study on the State Action Doctrine — Focused on the Recent Debates Over the Judicial Takings in The U.S. —

    Jong Geun Lee | 2014, (65) | pp.125~152 | number of Cited : 0
    Abstract
    The state action doctrine stems from the 14th Amendment to the U.S. Constitution. The U.S. Supreme Court recognized so-called essential dichotomy in the 1883 Civil Rights Cases. It means that the 14th Amendment offers a safeguard against the deprivation of rights by the state, but offers no shield from the deprivation of rights by private persons. In other words, deprivation of property rights by private conduct is not subject to scrutiny under the 14th Amendment, because the state action is not involved in taking away the property. The concept of judicial takings has originated with Justice Harlan's majority opinion in the case of the Chicago, B. & Q.R. Co. v. City of Chicago in 1897. A state court's final decision having an effect of deprivation of private property should be deemed the state action within the meaning of 14th Amendment. Therefore just compensation should be rewarded under the judicial takings doctrine. In Stop the Beach Renourishment, four Justices argued for finding that a court decision could constitute a taking of property, but even those Justices only indicated to grant a remedy of overruling the state court's decision, not providing just compensation. In the case of constitutional injuries are caused by incorrect judicial decisions, a new dimension of judicial review would be established if challenges to such court decisions are allowed.
  • 6.

    Die Verfassungsentwicklung der Republik Korea 1910-1987

    Baik-YuKim | 2014, (65) | pp.153~204 | number of Cited : 1
    Abstract
    Nach der Besetzung durch japanische Mächte von 1910 gab es demokratisch-freiheitliche Widerstandbewegungen in Korea. Die friedliche Befreiungsbewegung vom 1. 3. 1919 war wegen der “Politik der Grauens- und Schreckensherrschaft” Japans zum Scheitern verurteilt. Sie führten aber unmittelbar zur Errichtung der “Provisorischen Koreanischen Regierung” am 9. April 1919 in Shanghai(China). Darin lag ein revolutionärer Wendepunkt der Befreiungsbewegung. Vorher war die Befreiungsbewegung für Koreaner mit der Wiedererrichtung der Dynastie gleichbedeutend gewesen, war nunmehr das ausschließliche Ziel die Errichtung einer neuen republikanischen Regierungsform. Vom 14.-18. April 1919 fand der erste Korean Congress in Philadelphia(USA) statt. Der Verfassung vom 17. Juli 1948 der Ersten Republik(1948-1960) Koreas diente die Verfassungstheorie sowie das Verfassungsrecht der Weimarer Republik als Vorbild für die eigene Verfassungstheorie. Nach dem Sturz der ersten Republik durch die Studenten-Revolution vom 19. 4. 1960 bildete das Parlament einen Ausschuß für die Ausarbeitung eines Verfassungsentwurfs, dem die parlamentarische Demokratie des Bonner Grundgesetzes von 1949 als Vorbild diente. Nach einer über zweieinhalbjährigen Unterbrechung durch die Militärvereinigung wurde am 17. Dez. 1962 mit großer Mehrheit der Entwurf für eine Verfassungsänderung angenommen und verkündet am 26. Dez. 1962. Die Verfassung der 3. Republik wurde schließlich mit absoluter Mehrheit durch Volksabstimmung geändert:Nach der sogenannten Yu-Shin Verfassung von 1972 sollte der Staatspräsident nicht mehr vom Volk direkt oder der Nationalversammlung, sondern von einer sog. “Nationalen Konferenz für Wiedervereinigung” indirekt gewählt werden. Das in der Verfassung vorgesehene Wahlmännergremium wählte Chun am 27. August 1980 zum 9. Staatspräsidenten, der seine einzige 7jährige Amtszeit tragen sollte, der 5. Republik Korea. Angesichts der kritischen Entwicklung der koreanischen Innenpolitik im Frühsommer 1987 setzte Roh, Tae-Woo am 29. Juni 1987 mit einen 8-Punkte-Vorschlag an. Die drei wichtigsten Aspekte seines Programms waren Mit der Vereidigung des neuen Präsidenten Roh, Tae-Woo am 25. Feb. 1988, mit der sich der erste friedliche und verfassungsmäße Machtwechsel in der gesamten Verfassungsgeschichte Koreas vollzog, trat die neue Verfassung in Kraft.
  • 7.

    Use and suspension of Extinctive Prescription - Focusing on the people who provide their possessions as collateral for the debt of others -

    TAEKWAN KIM | 2014, (65) | pp.205~235 | number of Cited : 3
    Abstract
    As a general rule on the scope of the person who uses Extinctive Prescription, the Supreme Court, presents the criteria of “person who receives a direct benefit from Extinctive Prescription”. people who provide their possessions as collateral has a physical burden if you have to abide the execution of the security interest against creditors and If the secured claim has been extinguished by prescription, so he will be able to recover the ownership by the exercise of real rights. Therefore, it must acknowledge the right to insist on Extinctive Prescription that is independent of the debtor to the real guarantee. If the suspension of prescription occurs in the debtor, will the real guarantee be able to deny the suspension of prescription of the debtor and claime the statute of suspension? It is reasonable to interpret as a basis the Civil Code Article 440, that collateral rights has not been extinguished by prescription. And, I wonder admit the suspension of prescription against real guarantee people? Because real guarantee are those who can use Extinctive Prescription, the range of suspension of prescription also is matched with the range of use of Extinctive Prescription.
  • 8.

    The Research on the Controversy of Chinese Judicial Interpretation of the Contract of Sales - With Unauthorized Disposition and the Dual Trading of moveable property as the center -

    Jin, Lu-lun | 2014, (65) | pp.237~265 | number of Cited : 0
    Abstract
    In 2012 Chinese Supreme People's Court issued a judicial interpretation, called “The interpretation on the trail of contract dispute cases how to apply the law”, and the article 3is a provision about the efficiency of the contract and breach remedy in the case of unauthorized disposition. This provision adjust the relationship between article 51 and article 132 of the Contract Law according to the provision of property changes distinction principle. This paper argues that in the description of the relationship among these laws, we should pay attention to distinguish the creditor behavior and the juristic acts of real rights, and the “disposition” in unauthorized disposition should be juristic acts of real rights. Because, only in this way can we clarify the above problems. Judicial interpretation of the contract of sale" on 9 and 10, respectively, are provided to determine the ownership of the multiple trading of ordinary chattel and special movables. The drafters of judicial interpretation are intended to achieve the purpose of maintaining the principle of good faith through a variety of standard to prevent multiple trading. However, since these standards contrary to the basic legal, although pay more attention to the reality, but also do not accord with the related provisions of the Property Law, so they will create a lot of confusion.
  • 9.

    A Legal Study on infringement of privacy of unmanned aircraft

    Kim Sun-Ihee | 2014, (65) | pp.267~299 | number of Cited : 19
    Abstract
    An unmanned aerial vehicle (UAV), commonly known as a drone and referred to as a Remotely Piloted Aircraft (RPA) by the International Civil Aviation Organization (ICAO), is an aircraft without a human pilot aboard. In developed countries, it has invested in many unmanned aircraft industry for the utility of unmanned aircraft. In Korea, unmanned aircraft, is advancing the unmanned aircraft business from the government, it is determined at the core of creating economy. Government is one in which to advance the test operation in the development of private drone, to the construction of infrastructure and exports domestic sales. Unmanned aircraft has a lot of utility, but I have the risk of legal disputes. Unmanned aircraft is required to respond to the spill to the recording of operating routes and around the take-off and landing, which is recorded on the sensor and high-performance camera. Also, if the issue of invasion of privacy occurs, discussion of the limits of insurance and limits of responsibility has not been focused on unmanned aircraft operations. There is a risk of personal life exposure of people living in high-rise and low-rise by using the bar unmanned aircraft that can be produced in ultra-compact and noise unmanned aircraft in particular, when the unmanned aircraft is practical, of invasion of privacy is the possibility. Sometimes liability occurs in the operators of unmanned aircraft mental damage due to the operation of unmanned aircraft, due to private life exposed the public does not want. And is intended to inhibit the development of unmanned aircraft industry. There is no law related to unmanned aircraft for domestic aviation laws. On the basis of the application of the Personal Information Protection Law of the Civil Code, legal proposed regulations for infringement of unmanned aircraft privacy, to open a privacy protection conditions of the Aviation Law and the current proposal for privacy protection clause establishment of the special law enacted after the unmanned aircraft it is possible to present the proposal to provide a draft, guidelines related to unmanned aerial vehicles. If the laws that have been identified in the unmanned aircraft has not been established, when the conflict of infringement unmanned aircraft, privacy has occurred, the court is expected to be incorporated in the Personal Information Protection Law of the Civil Code. In this paper, as a preparatory measure, was presented the Aviation Law amendment of current for infringement unmanned aircraft, of privacy. It is determined that the current, special law of unmanned aircraft is what is enacted, it is determined that there is no possibility at the moment, and then amend the Aviation Law of the current, it is possible to privacy protection is reasonable. It can be to be able to present a scheme that can with revision of the aviation method for invasion of privacy and to prevent in advance through the presentation guidelines for unmanned aircraft operations.
  • 10.

  • 11.

    A study on whether to the establishment interference with business caused by the act of obstruction of performance of official duties

    Jeong Ji-Hoon | 2014, (65) | pp.327~357 | number of Cited : 3
    Abstract
    The Korean Supreme Court has changed its opinion that obstruction of performance of official duties by force, not by violence or intimidation, can be punished by article 314 Interference with Business in criminal law. Nevertheless, the discussion to be punished the act of obstruction of performance of official duties by force by the ‘interpretation’ has continued. Both of these views remain apart on the issue while providing reasonable prima facie grounds. This paper does not aim to choose any specific view of that. Instead of that, in this paper, it dealt with the problem of punishment inversion appearance or systematic interpretation when it includes official business as the interpretation. As a result, it is the goal of this paper that the argument about penalties for the act of the obstruction of performance of official duties by force is a policy issue to solve by legislative theory rather than stay any longer in the interpretation.
  • 12.

    Die Untersuchung über das Vertrag des Beitrittsunternehmens

    So,Jae-Seon | Ryu seok hee | 2014, (65) | pp.359~392 | number of Cited : 4
    Abstract
    Mit der schlagartigen Entwicklung des Beitrittsunternehmens wurden die rechtlichen Probleme zwischen den Vertragspartien beständig aufgetreten und von der Einführung des Beitrittsunternehmens bis 2013 wurden die rechtlichen Probleme(insg. 4,122 Sachen) der Kommission zum Gerechtigkeitshandel beschlaggenommen, und vor allem geht es um die rechtlichen Problemen bezüglich des Beitrittsunternehmens. Die Kommission zum Gerechtigkeitshandel fordert dass die Vertragspartien nach dem formelen Beitrittsvertrag, in dem die benötigten konkrete Inhälte geregelt wurden, ein Vertrag schließen. Also, die Zwecke des Beitrittsvertrags bestehen darin, dass die Rechtsverhältnisse zwischen dem Vertragspartien des Beitrittsvertrags deutlich reguliert werden sollten. Im Jahre 2006 hatte die Kommission zum Gerechtigkeitshandel die Ungerechtigkeitshandelsklausel des Beitrittsgeschäfts untersucht. Nach dieser Untersuchung treten sich viele Ungerechtigkeitsklauseln auf und diese sollten gefordert werden, um selbst zu verändern. Und neulich werden die Ungerechtigkeitsklauseln des Beitrittsunternehmens zum Kontrollieren bzw. Verbesseren des Gesetzes vom Beitrittsunternehmen teilweise geändert. Auch die benötigen Inhälten des Vertrags im Beitrittsunternehmen werden konkret geregelt, aber das kann mit dem Prinzip der Vertragsfreiheit gestoßen werden und unter Berücksichtigung der praktischen Angelegenheiten ist das als unnötige doppelte Erfordernisse anzusehen. Denn die Inhälte des Beitrittsvertrags bzw. der Öffentlichkeit der Auskunft sind fast gleich geregelt. Auch meiner Ansicht nach sollte die Verwahrungspflicht des Beitrittsvertrags nach dem Schluss des Vertrags den Vertragspartien d. h. Beitrittsunternehmen bzw. -Mitglieder gleich gelten. Daher, bei dieser Arbeit sind die konkreten Maßstäben der Ungerechtigkeitsklauseln von der Kommission zum Gerechtigkeitshandel im Beitrittsvertrag zu untersuchen und die rechtlichen Problemen bezüglich der benötigen konkreten Inhälten bzw. der Anbietung und Verwahrung des Beitrittsvertrags zu betrachten. Unter Berücksichtigung der oben genannten Schwerpunkten werde ich die Verbesserungsvorschlag nennen. Infolgedessen hoffe ich dass das Beitrittsunternehmen auf Grund von der Transparenz des Vertrags bzw. den gerechten Rechtsverhältnissen zwischen Vertragspartien entwickelt werden sollten.
  • 13.

    A Study on the U.S. Low-Profit LLC and Policy Support on the Social Enterprise

    Jongho Kim | 2014, (65) | pp.393~433 | number of Cited : 7
    Abstract
    I ignited utility of social enterprise argument in this article by introducing low-profit limited liability company (L3C) in U.S. An L3C, is a new kind of limited liability company (LLC) that combines the financial advantages of the traditional LLC form of business with the social benefits of a non-profit entity. In addition, as a variety of LLC, the L3C generally shields its owners from the debts of the enterprise. An L3C is a for-profit limited liability company which is specifically organized to further one or more charitable or educational purposes within the meaning of the Internal Revenue Code (IRC). L3Cs may be formed as free-standing businesses with social purposes. They may also be created by nonprofit organizations as for-profit subsidiaries with social welfare goals. An L3C can earn income and see its property appreciate in value, but the production of income or the appreciation of property cannot be a significant purpose of the company. In addition, L3Cs are prohibited from pursuing political or legislative purposes within the meaning of the IRC. One major advantage of an L3C is that it is specifically designed to facilitate program-related investments (PRIs) by private foundations. Generally speaking, each year, private foundations are required under the IRC to distribute 5% of their average net assets for charitable purposes. Qualifying distributions, for this purpose, include not only grants, primarily to public charities, but also PRIs, which may be loans, loan guarantees, lines of credit, linked deposits or even equity investments. Unlike grants, PRIs can be recovered, along with earnings, and redeployed, over and over again, for charitable purposes. The PRIs ‘multiplier effect’ thus expands the foundation’s programmatic impact. A foundation’s PRI to an L3C can catalyze a potent social-purpose strategy. By taking on higher risk and forgoing market-rate returns, the foundation affords the L3C the opportunity to attract private-sector investment which otherwise might never support a social venture. It also fosters the L3C’s long-term sustainability. Like other LLCs, an L3C is managed either by the ‘member’ or ‘members’ (owners) collectively, or by one or more ‘managers.’ The L3C's Articles of Organization must specify whether the company is to be member-managed or manager-managed. If the company is manager-managed, the managers may be members, but are not required to be. An L3C is governed according to the terms of its ‘operating agreement.’ An operating agreement is an agreement signed by the members which regulates the affairs of the company, the conduct of its business, and the relationship among the members, the managers (if any), and the company. If the company has only one member, the sole member may establish an operating agreement in writing, or, if the company has a manager other than the sole member, by oral agreement with the manager. An L3C’s operating agreement sets forth the members’ respective rights and obligations; the contributions they are expected to make to the company; the distributions they may be entitled to receive; their voting rights; the rights and responsibilities of managers (including certain obligations which program-related investors are required by Federal law to impose on L3C managers); conditions relating to the members’ ability to transfer their membership interests; and other governance provisions. The members are given broad latitude to determine the governance of the company by means of the operating agreement. The Limited Liability Company Act provides for “default” governance provisions, but most such provisions may be modified by the operating agreement. The operating agreement establishes substantial rights and obligations. For that reason, legal counsel should be consulted in connection with its negotiation and drafting. I believe the arguments for the U.S. L3C in the body of this work will provide a great implication to Korean legislative.
  • 14.

    A Study on the Regulation and Policy Regarding Seperation of Banking and Commerce in the Banking Law

    Choi, Young Joo | 2014, (65) | pp.435~470 | number of Cited : 12
    Abstract
    Korean banking law strictly restrict the ownership of bank of industrial capital, and it’s apparent from the fact that there is no such equivalent case in the world. There are many disputes on the system of restriction on the ownership of bank, but government policy and scholars’ opinions still put stress on maintaining strict policy of separation between banking and commerce. It is, however, necessary to seriously review the system to relax, considering the background and the goal of the system and the change in the economic situation. First, there have been many opinions which concern the concentration of economic power regarding the system, but this article argues that the prudence of bank should be a more important standard. In addition, Korea has not experienced the concentration of economic power caused by chabol which owns banks except for a short period of the late 1950s. Economic situation also has changed a lot compared to the period. Now, legal system is well established to prevent corporate shareholder of bank from misusing bank’s capital illegally, and corporate has no such inducements to engage in illegal practice. From this point of view, one needs to review the policy of separation between banking and commerce which focus only on the ownership of bank and needs to seek the change of policy which consider the scope of banking business and outside business through subsidiaries together.
  • 15.

    The Contractual Liability of Classification Societies

    JUNG WON LEE | 2014, (65) | pp.471~497 | number of Cited : 3
    Abstract
    According to the law in force the shipowner is the one that has to guarantee the ship's seaworthiness and cannot transfer his contractual obligation to any other party, including the classification societies. It should be borne in mind that a class survey is limited by its terms of reference to matters going to class, and does not oblige the surveyor to point out everything that might cause danger or otherwise harm the owner's interests. Assuming negligence and causation can be proved, however, a claim by owners for the loss caused to the vessel or the amount paid out to cargo, is clearly possible as a matter of law. In the meantime, class surveys are only a relatively small part of a classification society's business, even as regards ships classed by it. Due to the diversity of the scope of their services, it is impertinent to affirm the legal nature of other services than non-statutory surveys. In any case, the fact that the classification societies performed its contractual obligations defectively may make the classification societies liable toward the shipowner. Finally, a number of classification societies are licensed to certify ships on behalf of regulatory authorities for what are in effect promoting maritime safety. Taking into account the object of legislation requiring compliance with statutory standards is clearly the promotion of safety and good environmental stewardship at ship, a primary duty is placed on the shipowner to comply with the provisions of the relevant code before sailing. Therefore, it is suggested that classification societies will in practice have little to worry about. In addition, it should be kept in mind that the main agent of the State compensation is the national government or local government under the Korean laws, and that public officers are not liable for damages unless they acted with intention or gross negligence. In this sense, it is suggested that classification societies will not be liable for damages whatever occurred in the course of the statutory surveys.
  • 16.

    A Study on Regulation Policies for the Workable Competition in the Mobile App-Market

    Song, Tae-Won | 2014, (65) | pp.499~527 | number of Cited : 2
    Abstract
    As the method of information distribution has changed from personal computers to mobile devices, mobile apps are becoming a new platform for digital content distribution. The app store market where mobile apps are distributed is being dominated by two rivals—Google and Apple. In an environment where large companies like Google play a role of gatekeeper of the mobile content distribution market, the related markets also are restrained from competition. This means that apps of competitors have limited opportunities to enter the app market. The concern is that the lack of competition in the app market may lead to the lack of cost competition and service competition among app developers in the content distribution market and the submarket—the app market where users purchase and download apps. Therefore, it should be examined whether the current market environment is the result of normal competition or that of unfair assistance from large corporations. Currently, app distributors such as Google do not give apps of rival app stores access to their own markets. Given that allowing apps to enter any app market regardless of their origin can give the app developers an easy access to the content distribution market, it should be examined whether the current market environment is restricting the access of app developers to essential facilities. Even if app stores are not regarded as essential facilities, restriction imposed by the market-dominating app stores on apps can be seen as interference with business activities and unfair transaction rejection. Moreover, any act that makes app users inconvenient to install apps purchased from a third-party app market hampers the access of apps from different app markets to the app store. Unless there are any inevitable technical difficulties in installing the apps, it is highly likely that such a restriction is regarded as unfair interference with business activities. And it is debatable whether forcing app suppliers to use only a particular payment module designated by the app store is a tie-in sale or not. The answer to the question depends on whether there is justification for doing so. On the issue of the involvement of authorities responsible for ensuring fair competition in the mobile content distribution market, it is desirable to promote voluntary participation from app stores in opening doors to different app markets through administrative guidance or consent decision rather than taking top-down measures such as issuing correct orders to app markets and imposing a fine on them, considering the innovative nature of the mobile app industry.
  • 17.

    A Study on Industrial Policy-Influenced Characteristics in Chinese Anti-Monopoly Law

    Kim Joon Ho | 2014, (65) | pp.529~550 | number of Cited : 3
    Abstract
    Merger regulation in Anti-Monopoly Law of China(hereinafter ‘AML’) has been quite actively enforced and developed quickly despite of its short experiences. However, it has several characteristics that are rare in other developed countries' competition laws such as US, EU and Japan, especially its industrial policy-influenced competition law, which lots of commentators abroad criticise. It seems to become a permanent tendency of Chinese AML, even after it overcomes typical limitations in early-stage of competition law. It is not proper to say that the industrial policy-influenced competition law is its weakness in early-stage. Rather, it could be considered as an independent path that Chinese AML is now pursuing. Whether this new type of competition law will be successful or not is another issue. The achievements of Chinese AML need to be understood according to its own logic. Henceforward, if Chinese competition authority, MOFCOM tries to dispel worries from outside that MOFCOM is likely to exercise broad and arbitrary discretions when handling merger cases, it would be able to form reliable guidelines step by step which specify Chinese AML's unique but vague value factors like ‘national economy development’ or ‘national security’. We should be cautious when evaluating the advantages and disadvantages of Chinese AML that now follows its own path.
  • 18.

    Understanding of agricultural subsidies and agricultural subsidies in EU

    Choi Hye - sun | 2014, (65) | pp.551~577 | number of Cited : 0
    Abstract
    The agreement on CAP reform reached in June 25, 2013. While continuing to reform the CAP for past years, this reform is first try to review entire CAP. In path of CAP reform, EU solved the needs and challenges and present the future value. For that reason, EU agricultural policy has reputation of agricultural policy pioneer. According to current AOA, there are two types of agricultural subsidies largely. First is export subsidies and second one is domestic subsidies. Regarding the export subsidies, there were fierce debate. As the result, the WTO member country can give the export subsidies in very limited situation. And now agricultural negotiators almost agree that export subsidies will be eliminated. Among the various types of domestic subsidies, Blue Box, Green Box and Amber Box are the important issues. In DDA agricultural negotiation, changing about regulations of Blue Box is one of the most critical matter. By the latest modality, requirements for Blue Box will be stricter than now and new type of Blue box will be introduced. Green Box has not trade distorted effects or minor effects. AOA Annex 2 prescribe the conditions and the types of Green Box. Differently now, DDA agricultural negotiators discuss the ways to strengthen the requirements for developed countries's Green box. On the contrary that, developing countries could have more flexibility on that part. Amber Box is most harmful in the international trade of agricultural products. The WTO member country should reduce the total amount of payment. If DDA agricultural negotiation would be concluded, countries who pay more have to reduce more. In 2013 reform of CAP, EU introduced various groundbreaking changes in part of agricultural subsidies. Introducing of Basic Payment Scheme, Green Payment, Young Farmers Scheme, Redistributive Payment, Small Farmers Scheme are representative changes. By having that schemes, EU try to resolve the imbalances between farmers and achieve the new goals of CAP, more equitable and greener and strengthen rural development.
  • 19.

    International Environmental Legal Issues of Iron Rhine Railway Case

    JAE GON LEE | 2014, (65) | pp.579~613 | number of Cited : 1
    Abstract PDF
    The article is to analyze the ‘Iron Rhine case’ which was a legal dispute between Belgium and the Netherlands and was settled by an arbitration tribunal of the Permanent Court of Arbitration with a special emphasis on the issues of international environmental law. Based on the analysis of the Case, the article appreciated that the award of the arbitration tribunal contributed to the extended development or clarification of a couple of important issues of international environmental law such as the harmonization between territorial sovereignty and international protection of the environment, the principle of responsibility not to cause environmental damage, the principle of prevention, the principle of cooperation, the principle of sustainable development by dealing with principles of international environmental law, even though the issues were not the essential of the case. The article also recognized that the award of the tribunal made a contribution to the improvement of discussion about the concept of the ‘environment’ which had critical importance for the conceptual definition of environmental pollution and for the decision on the scope of environmental damage in international environmental law, but was very difficult to define by making an endeavor to illustrate some words which could be included in the concept of ‘environment’. The article indicated that the award indirectly recognized the effectiveness of environmental impact assessment(EIA) through the assessment of the reasonableness and legality of the parties allegation which was partly based on the result of environmental impact assessment of the revitalization project of the Iron Rhine Railway. Additionally, the article singled out some deficiencies in the award such as 1) the insufficient reasoning for the extension of the application of principle not to cause environmental damage into the special situation as in the Case; 2) the avoidance of the use of the term, sustainable development and the lack of willingness of the conceptual establishment of the term; 3) the blurred dealing with the principles of international environmental law.
  • 20.

    Suggestions for Improvement of the legal issues regarding the Double Payment of Allowances for Holiday Work and Overtime Work on Holidays

    Lee Seung-Gil | Kim, Jun-Keun | 2014, (65) | pp.615~648 | number of Cited : 4
    Abstract
    (1) When holiday work and overtime work overlap, whether the employer is obligated to pay double allowances for overtime and holiday work is a paramount question. Holiday work should be paid only for work on holidays, not as an overtime work allowance. As working hours on holidays and overtime are all related to hours worked outside of the standard legal working hours, both types of work hours fall under the same category. This means that double payment should not be required for overlapped working hours. Therefore, for example, work on a statutory holiday is not included as part of the standard legal working hours, which means that such work shall not also be calculated as overtime work. (2) Some recent judicial rulings by regional courts declared that overtime work shall include holiday work, to which scholars' opinions are divided, both positively and negatively. However, since the time when the Labor Standards Act was originally enforced, the long-standing practice has been that holiday work is not included in overtime work. Furthermore, the Supreme Court ruled in 1991 that when holiday work and overtime work overlapped, overtime should not be paid in addition to the holiday work allowance. Accordingly, as regional courts have found against the Supreme Court's ruling, it has become necessary to take this case once again to the Supreme Court, where all Supreme Court judges can make a decision on the issue. Also, it will be necessary to revise the working hours system for future operations. (3) This thesis paper will look into the legal background of overtime work, previous Supreme Court rulings and Labor Ministry guidelines regarding 'whether holiday work shall include overtime work' (II). Controversial judicial rulings by regional courts will be dealt with by examining the contents of the rulings (III). In addition, legislative trends and the opinions of academic and labor-management groups will be considered (IV). Additionally, I would like to make a few suggestions relating to future holiday work (V). Finally, the conclusion section will contain the summary of the thesis.
  • 21.

    International Cooperation for the Prevention of Cyber Terrorism and the Suggestion for Korea

    KWON HAN-YONG | 2014, (65) | pp.649~675 | number of Cited : 8
    Abstract
    Cyber terrorism pose complex problems that reach into new areas for national and international security. Cyber terrorism poses a direct thereat to the security of the nations critical infrastructures and ITs as a low cost asymmetric warfare element. To countermeasure the threat of potentially disastrous cyber attacks, international and regional organizations of policy makers are increasingly pondering on the use of deterrence strategies to supplement cyber defense. Cyber terrorism is no single common definition of the term terrorism gained universal acceptance. The term cyber terrorism is “the use of computer network tools shut down critical national infrastructures or to coerce or intimidate a government or civilian population” . This phrase is controversial as there is no exact meaning of it. What more to offer specific description on cyber terrorism, as it involves technical discrepancies and ambiguous legal interpretation. With the uncertainty nature of cyber crimes and its transborderless characteristic, the concerted effort from various related organizations are needed to solve problems brought about by this crime. Thus, this paper is aimed at to explore the existing definitions of cyber terrorism and to look at the current action taken by the relevant organization in combating this issue. This paper evaluates the importance of building international cooperation on cyber defense and deterrence against cyber terrorism. It emphasizes establishing international legal measures and cooperation between nations against cyber terrorism in order to maintain the international stability and prosperity
  • 22.