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2015, Vol., No.66

  • 1.

    Study on Anti-Nation and Anti-Nationality Crimes in Criminal Laws of North Korea

    HA TAE YOUNG | 2015, (66) | pp.1~70 | number of Cited : 1
    Anti-nation crimes are called anti-revolutionary, political, and hostile crimes in other expressions. It is a chapter that ideological color is the strongest in criminal laws of North Korea. It corresponds to crimes of rebellion, collusion, and violation of national security law. Anti-nation and anti-nationality crimes in the criminal laws of North Korea are composed of article 60 to 73. All of them consist of three clauses. They are anti-nation crime in clause 1, anti-nationality crime in clause 2, and crimes of concealment, no report, and neglect against anti-nation and anti-nationality crimes in clause 3. Mostly, these contents are regulated in abstract and comprehensive forms. So, it is difficult to grasp what actions are relevant to punishment regulations. Among all 14 provisions in chapter 3, five provisions such as plotting the overthrow of a state in article 60, terror crime in article 61, treason against the country in article 63, destruction and secret damage crime in article 65, and treason against nationality in article 68 of the criminal law regulate penalties of death and property deprivation. Anti-nation crime in clause 1 has a total of seven provisions. Among them, in case that the degrees are heavy in destruction and secret damage crimes in article 65 of the criminal law, the punishment was strengthened so that the death penalty can be sentenced besides the hard labor penalty in life imprisonment. And, in concealment, no report, and neglect crimes in clause 3 of the criminal law of North Korea, no report crime in article 71 was revised. Therefore, about anti-nationality crime besides anti-nation crime, it was regulated that the act of no report can be punished. Subjects and ranges of the punishment were expanded. Acts of political upheaval, riot, demonstration, and raid as well as an "armed riot" for overthrowing the state as acts of previous constitutional requirements can be punished and the limit of statutory punishment was deleted. Subjective constitutional requirements were regulated comprehensively into "anti-national purpose". Additionally, it was regulated that terror actions against general people as well as patriotic people can be punished. Plus, regardless of contents of propaganda and agitation, in case of anti-national purposes, the objects can be punished. In case of no purpose of subverting the Republic, it is regulated that the objects can be punished by the crime of treason against the country. But, about terror crime in article 61 of the criminal crime, especially, incase that the degree is heavy, the hard labor penalty in life imprisonment was added selectively. So, there is an aspect that some statutory penalties were alleviated. But, overall, it is evaluated that criminal penalties were strengthened. In anti-nationality crime in clause 2, there are three provisions. Among them, about the treason against nationality in article 68 of the criminal law, the statutory penalty was alleviated from "death and all property confiscation" to the hard labor penalty five and more. On the other hand, in hostility crime against Joseon [North Korea] people in article 70 of the criminal law, it was regulated that acts of foreigners who traffic in Joseon people, infringe their property, or cause ethnic disharmony for the purpose of being hostile to Joseon people can be punished. About the treason against nationality in article 68 of the criminal law, the statutory penalty is "death and all property confiscation". When there are reduction reasons, the "hard labor penalty 10 and more and all property confiscation" were into the "hard labor penalty five and more". In case that there are weighting reasons, the penalty was alleviated such as the "hard labor penalty in life imprisonment or death & all property confiscation". An article was created like hostility crime against Joseon nationality in article 70 of the criminal law. Like criminal prosecution limitation was not applied to anti-nationality crime, there is an aspect that some punishments were strengthened. However, since the statutory penalty was downgraded in a condition of no big change of the constituent requirements, it can be evaluated that the punishment was alleviated. The crimes of concealment, no report, and neglect against anti-nation andanti-nationality crimes in clause 3 have three provisions. Previous regulations were adjusted. The basic contents were maintained as they were (article 71 or 73 of the criminal law of North Korea). Criminals of anti-nation and anti-nationality are applied to additional punishment (disfranchisement in article 32of the criminal law of North Korea).The disfranchisement in section 1 is a punishment to deprive a person who committed a crime of anti-nation and anti-nationality of voting right for some regular period. In case of examining a crime case of anti-nationality, the disfranchisement problem should be examined together. The period of disfranchisement is 5 years. It should be calculated from the day when the hard labor penalty in limited imprisonment ends. Article 58 of the criminal law of North Korea regulates in crimes of anti-nation and anti-nationality and intentional significant murder as crimes excluding the application of prosecution prescription under a heading of "crimes that the prosecution prescription is not applied". About crimes of anti-nation and anti-nationality, regardless of periods of criminal prosecution limitation, criminal liability is assumed. In a comparative legal viewpoint, South Korea regulates exceptional cases of prosecution prescription in various special laws and excludes the application of prosecution prescription. However, North Korea has regulations on the exclusion of prosecution prescription in the criminal law. The property confiscation penalty in the criminal law of North Korea is not applied to general crimes. Among crimes of anti-nation and anti-nationality, in case that the degrees are so heavy in terror crime in article 61, treason against the country in article 63, secret damage crimes in article 65, and treason against nationality in article 68 of the criminal law of North Korea, the property confiscation penalty can be added to the death penalty.
  • 2.

    The Characteristics of Crimes against Personal Property Rights in North Korean Criminal Law

    Suh, Bo Hack | 2015, (66) | pp.71~102 | number of Cited : 0
    Though North Korea adheres to the principle of co-ownership of the whole national and societal property, it partly acknowledges personal property rights of citizens and expresses the crimes against personal property rights clearly to protect personal property and ownership. Interestingly, it distinguishes the crimes of infringing national property and personal property. The regulations related to the violation of property rights in North Korean criminal law are still simple and naive in their contents and legal descriptions compared to South Korean counterparts. However, those regulations don’t seem to fall short of their immediate aims of protecting personal property rights of North Koreans under the socialist economy. Despite the black markets and individuals beginning to possess personal property in North Korea, their economic life cannot be compared to South Korean economic life operated in much more complex ways. In addition, the regulations which are not strictly enforced would create a gap between changing economic realities and regulations, which is supposed to be filled by expanded application and teleological interpretation of the law to support the communist party’s ideology and policies. In this respect, North Korea cannot be called a constitutional society, that is, a law-governed country. Considering the fact that law follows realities and the contents of laws are filled in reflecting the realities afterwards, regulations about crimes violating personal property rights are expected to undergo gradual changes and evolutions along with the North Korean economy.
  • 3.

    The Comparative Study on the Self-Defense of South and North Criminal Law

    Jun Ji-Yun | 2015, (66) | pp.103~136 | number of Cited : 1
    Both South and North Criminal Law have a regulation of the self-defense and if the situation corresponds to self-defense, they don't punish the defendant. However, they have important differences between South and North Criminal Law about specific meanings and contexts of self-defense. First, there are no differences about regulations of self-defense in South and North Criminal Law. Second, South and North Criminal Law are common that self-defense is an act which has significant reason to protect current unwarranted infringement about self or others' legal interests. Third, while North Criminal Law admits that self-defense system is a very meaningful in respect of people's struggle against crime, South Criminal Law accepts it in passive sense. Fourth, North Criminal Law has collectivist characteristic of self-defense, but South Criminal Law is based on two primary benefits which are benefits of self-protection and defense of law and order. Fifth, among the legal interests protected by the self-defense, there is a dispute that self-defense for national·social legal interests can be adopted in South Korea. In contrast, self-defense is primary understood for national·social legal interests in North Korea. Sixth, North Criminal Law doesn't bring up the problem about noticeable imbalance when they judge reciprocality of anti-state crime, without regarding to principle of balance. On the other hand, South Criminal Law denies the self-defense because they make a sense the noticeable imbalance of infringement legal interests and protection legal interests exceeds the scope of reciprocality. Seventh, North Criminal Law accepts both intensive excessive force in self-defense (intensiver Notwehrexzess) and extensive excessive force in self-defense(extensiver Notwehrexzess), while South Criminal Law only admits intensive excessive force in self-defense (majority opinion). North Criminal Law understand that the legal effect of self-defense is the grounds for sentencing. However South Criminal Law comprehends grounds for discretionary or necessary mitigation. Finally, if murder is happened above the self-defense's extent in North Criminal Law, they reduce a punishment in murder in excess of self-defense which is the lightest penalty, not applies the murder.
  • 4.

    Contents and Features of Accomplice Provisions in North Korean Criminal Law

    Jae-Bong Kim | 2015, (66) | pp.137~170 | number of Cited : 0
    The reunification of South and North Korea is an important goal, that should be achieved in the near future. Preparations for it are currently being made in the various fields, such as politics, economy, culture etc.. Research for the laws of North Korea should not be missed out. In recognition of it, this paper tries to review the provisions and theories of accomplice in the North Korean criminal law. Above all, research of North Korean criminal law has practical values and necessity, that is, successful reunification of South and North Korea. Also, we can find many themes in the North Korean criminal law, that are worth carful study. Moreover, we can understand society and characteristics of North Korea through examination of North Korean criminal law. Especially, research of accomplice provisions and theories meets this purpose well. Based on these ideas, in the first place, this paper takes a genral view of the accomplice provisions in North Korean criminal law and make a historical and comparative study on it. Secondly, the features of provisions and theories of accomplice are examined. And then, each types of accomplice are investigated. Additionally, related complicity is researched, that is peculiar in North Korean criminal law. Moreover several subjects are studied, that draw out interest, for example, how one’s status makes an effect on the other.
  • 5.

    Infringement Crime of National Estate in Criminal Laws of North Korea

    Lee, Baek-Gyu | 2015, (66) | pp.171~204 | number of Cited : 0
    Infringement crime regulations of national estates are on crimes of infringing actions against property rights such as theft, fraud, and embezzlement in case that objects of the infringement belong to a nation or social cooperative groups. The rules are in clause 1 of chapter 5 in Criminal Laws of North Korea. Though crimes which infringed private possession in clause 2 of chapter 9 and the action types are same or similar, from separately removing crimes that action objects are owned by a nation or social cooperative groups, they are regulated additionally. About estate crimes, legislation cases that additional punishment regulations are had like this according to the infringement objects are very rare. It is originated from that North Korea has an attitude to protect estates of the nation or social cooperative groups more than private estates. By the way, when the punishment degrees are seen actually, there is no big difference with infringement crime of private estates. The punishments for basic crime forms are on the same degree; only in additional punishment, the infringement crimes of national estates carries somewhat higher sentences. But, joint corruption crime of national property and crime of destroying national estates by mistakes which are not in the infringement crime of private estates are regulated additionally. All are for strengthening protection of national property. When comparing with South Korea’s criminal laws, there is no misappropriation in North Korea. On the other hand, the difference that there is the joint corruption crime or extortion crime is noticeable. Especially, the crime of extortion for national property is to take something publicly when other people watch or to take something from committing an outrage or giving threat to an extent of no robbery though. It corresponds to snatching & theft or blackmailing. Crimes of cheat, embezzlement, and robbery for national property are not different from fraud, embezzlement, and robbery of crime laws in South Korea. The feature is that the action objects are estates of a nation or social cooperation groups. Overall, statutory punishment about the infringement crimes of national property in North Korea is not high; rather, statutory punishment of South Korea is higher. But, in case of South Korea, in the course of weighing offences, punishment is lessened through the mitigation of punishment in extenuation of circumstances. Even in the course, because there are lots of cases to set punishment near legally minimum penalties or to sentence probation, it should not be predicated that North Korea is not more severe in punishment than South Korea just simply from seeing legal punishment.
  • 6.

    The Phased Revision of the Constitution for the Unification Constitution

    Manhee Jeong | 2015, (66) | pp.205~252 | number of Cited : 9
    Since the Constitution of 1987 was ratified, debates and research results about the unification constitution have been mainly focused on governmental forms, political structures, and basic rights protection, all of which will be primary parts of the new constitution after the reunification of Korea. However, researches and studies about constitutional matters that will be occurred in the process of the reunification are also necessary to prepare for considering the unification of the constitution. Although reunification should be accomplished by agreement under article 4 (peaceful reunification) of the current constitution, there might be various ways to achieve unification by agreement as well as various methods of revising the constitution for completed reunification, such as a one-time revision, a phased or gradual method of revision, or establishment of a new constitution. Thus, this study will focus on the constitutional issues that will emerge in the process of the reunification of South and North Korea, especially those that will necessitate the revision of the constitution for providing a legal basis for “unification of the agreement” which will be the most important issues in the reunification process. This study will also suggest a way to accomplish the phased revision of the constitution during the unification process, a way that has two steps based on the principle of unification by agreement under the South Korean constitution like the way used for the reunification of Germany, which is the most feasible case in Korea. In the first step of the revision of the constitution, it is necessarily to establish a provision about “unification of the agreement” and its interim measures during the reunification process. Moreover, the constitutional amendment clause of the current constitution must be reviewed because it makes revision of the constitution difficult. The second step of the revision needs to address the expansion of the effect of the South Korean constitution to North Korea by revising a part of the current constitution, not establishing a new constitution. In doing so, it is necessarily to codify essential elements of “the unification of the agreement” in law. There might be a discussion about adopting the federal system, but this should be decided with national consensus and considered at a later date so that sufficient time will have passed after establishing the unification constitution. Some have raised concerns regarding the form of government that would be adopted after reunification. Both a presidential system and a parliamentary system with divided powers will be considered for the reunified Korea, and they both have pros and cons. The parliamentary system might be better for the social integration of South and North Korea; however, the presidential system is better for ensuring the stable and effective progress of the unification. Hopefully, whichever governmental form is adopted into the unification constitution will be decided by national referendum under national consensus, as well as through the enactment of the new unification constitution of Korea after achieving the social and economic integration of South and North.
  • 7.

    A study on the process of the unification and Unification Treaties of the South and the North of Korea.

    CHO JAEHYUN | 2015, (66) | pp.253~280 | number of Cited : 6
    Unification traditionally took either the form of merger or absorbtion. In a merger, two states combine and the result is a completely new state. In traditional absorbtion cases, a small amount of territory would generally be incorporated, not an entire sovereign nation that would subsequently disappear. In the unification of the form of merger or absorbtion, there is need to conclude the agreements between south and north Korea. It is problematical whether the South north agreement of unification is the treaty or not. According to the common view and precedent, the South north agreement of unification is considered a non-binding gentle’s agreement because of the special relationship between south and north Korea. But it is desirable to understand the South north agreement of unification as a treaty. Unification Treaties of the south and north Korea include the constitutional matters, the country name, national flag, capital, fundamental principles of constitution, state organization of the unified nation. It has significance for the following point of view in the process of the unification. It performs the function as the confirmation document that there is a achievement of the unification of south and north Korea as a constitutional obligation and national harmony. It also perform the functions as the recommendation of the unifying south and north Korea in the post-unification and as the prediction of the enactment of the Unified Constitution or amendment of constitution. And it clarifies most of the burning questions generally involved during state succession, either a merger or absorbtion.
  • 8.

    A Study of Korean Unification and Legal Integration: The Comparison of Unified German Legal Integration

    Youngh Jung | 2015, (66) | pp.281~314 | number of Cited : 2
    In preparation for the unification of the two Koreas, I try to seek legal integration between North- south korea. First, by comparing the practices and experiences of how the integration of the German study how our legal system integration are looking at north and south of legal culture and consciousness. This paper is examined the legal concept of comparative legal study and legal assimilation process as a problem with the premise of social reorganization as an experience and policies of German legal integration, such as change of state structures, social system, and legal problems of the past liquidated. we take into account of human dignity and worth as a precondition for the North Korean population, and apply the human rights of the current Constitution and constitutional bacis principles. Moreover, liberal democratic political system and apply the basic principles of social state of rule of law, market economy. Specifically, legal integration examines policies of stabilization, privatization, and liberalization and marketization on North Korea.
  • 9.

    A Strategic Approach to the Relation between North Korea Human Rights Law and Unification

    Cha, Dong Wook | 2015, (66) | pp.315~340 | number of Cited : 2
    The purpose of this study is to examine how helpful the U.N. resolution, recently passed, on North Korea`s human rights abuses for the peaceful unification of Korean Peninsular. The resolution condemning North Korea for human rights violations does not make a positive influence on the road to the unification. Whatever the real purpose is, North Korean regime’s active participation in several human rights treaties seems to indicate that there is a possibility that North Korean society may change in compliance with those international norms. Therefore, it is necessary that the South Korean government should help the North Korean government to improve conditions for North Korean’s human rights by itself instead of isolating North Korea from the international society by blaming North Korea`s human rights abuses. By doing so, the mutual trust between South and North will get recovered and it will strengthen the foundation for the peaceful unification of Korean Peninsular.
  • 10.

    A study on the Article 1 of the Constitution of the United Korea

    Song, In-Ho | Choi, Kwi-Il | 2015, (66) | pp.341~364 | number of Cited : 1
    Article 1 of the Constitution symbolically represents the core values that the public agrees with and the national goals and identity. Additionally, it is very important that Article 1 of the Constitution has the effect of political education for the nation and the people. Thus, in designing the basis for the new unified Korea, and the direction of the country, what values Article 1 of the Constitution will include is very important. Many countries including South Korea, have declared the national form and sovereignty, ie ‘Democratic Republic and the sovereignty of the people’ as the national values in Article 1 of the Constitution. However, many other countries do not include the national personality and instead, ‘provisions relating to human rights such as human dignity’ or some countries have included both, and some others also include the provisions of human rights in Article 2 of the Constitution. Yet in the view of North Korean citizens who have been subject to serious human rights violations for several decades, the security of true human rights from the unified country will not be sufficient by inclusion in Article 1 of the Constitution under ‘Democratic Republic and the sovereignty of the people’, and rather, there is a need to emphasize the ‘human dignity value’. Therefore, to further deepen the democratic development to all citizens of the North and South, and in order to declare the significant values of the unified Korea inside and outside, it is necessary that Article 1 of the Constitution of the unified Korea should include the ‘Democratic Republic and the sovereignty of the people’ philosophy together with ‘Respect for human dignity and worth’ to clearly clarify the establishment of the country and national purpose. By doing so, this will contribute largely to the aspect of ‘Unification of value’ for citizens of the North and South after unification. In summary, Paragraph 1 of Article 1 of the Unification Constitution should regulate that “The Republic of Korea is the Democratic Republic with human dignity and value as the State’s foundation and purpose”, and of the current Constitution, Article 10 of the Constitution should be regulated in Article 1, Paragraph 3 of the Constitution.
  • 11.

  • 12.

    Formation Process of agricultural Land Ownership System in North Korea and Reorganization Matter of agricultural Land Ownership System after the Unification

    Kim Sung Wook | 2015, (66) | pp.387~416 | number of Cited : 3
    The title of this thesis is ‘Formation Process of agricultural Land Ownership System in North Korea and Reorganization Matter of agricultural Land Ownership System after the Liberation’. It would be meaningful to logically verify how to reorganize the agricultural land ownership and what aspects to consider for the reorganization in the process of systematic unification when two Koreas come to unify in the future. Of course, it would be difficult at the present moment to predict exactly what problems may arise in the future. However, there should be efforts to find solutions for problems related to regulation of public order so that the risk of causing unreasonable consequences can be minimized. Since agricultural land ownership system is not something that is being newly developed but is a system which has evolved along with the history of mankind, a thorough examination of past problems can lead to a future legal system that is more rational and accords with substantial justice. To reorganize the agricultural land ownership system for unified Korea, it is necessary to examine the historical development process of the past system. It should be noted that the main purpose of unification is to stop passing on the sorrow of the divided nation to the future generations, and to strengthen competitiveness of North Korea by activating the local economy. Thus there is no reason to apply property rules of South Korea, which is regulated in the Constitution, directly in the changing situations caused by the unification. Furthermore, if it is taken into account that both Koreas have developed separate legitimate government with sovereignty ever since the division, that both are recognized as independent countries by the international law, and that the past confiscation was enforced to resolve any unreasonableness, it is logically desirable for two Koreas to agree on the unification as equal parties. As a consequence, the systems of both Koreas should be considered valid, and the reorganization should take place under this premise.
  • 13.

    Strict form of proof and the admissibility of the new proving means

    CHO GI YEONG | 2015, (66) | pp.417~448 | number of Cited : 14
    Strict form of proof (Strengbeweis) required by Korean criminal procedure law do not only aim to search for the truth. These rules of evidence, including rules of admissibility and the legitimacy of trial procedure, bring constitutional principles such as the principles of rule of law, and the principles of democracy into evidence act. In this sense, strict form of proof is the fundamental rules of evidence court must be followed to ensure full compliance with law legislated to guarantee the procedural rights of the defendant. The central issues of the criminal litigation are questions of justification which has two aspects: the epistemic and the ethical. The court has to consider, on the evidence, what to believe about the facts in dispute and also be concerned about the morality of the process by which the court reach a verdict. I firmly believe that two aspects of justification are the main causes of exclusion of particular categories of confessions, exclusion pursuant to the prohibition against hearsay, and exclusionary rules. The videotape recorded evidence of interrogation of a suspect should be excluded on the basis of above mentioned reasons in Korean criminal procedure law. Namely, it cannot meet the ethical demand of presentation of evidence before the deciding judges (Unmittelbarkeitsprinzip) and it is indeed very hard to fulfill the truth-seeking function as a evidence sufficiently due to selective or arbitrary videotaping of targeted statements of a suspect. However, unlike videotape recorded evidence, testimony of police officers who previously interrogated a suspect during investigation stage, meeting the epistemic and ethical requirements, do not affect its admissibility. But trial courts should carefully scrutinize the credibility of police officer’s testimony in court and principally give little weight to their testimony in consideration of his or her preconceived opinion toward the incredibility of the defendant.
  • 14.

    Studie über die Rechtfertigung der strafrechtlichen Aufarbeitung des Systemunrechts

    Kim Dong Lyoul | 최성진 | 2015, (66) | pp.449~482 | number of Cited : 5
    Nach dem Sturz eines Unrechtsstaates stellt sich immer wieder die Frage, wie das Unrecht, das die Machthaber und handlanger des Systems begangen haben, umgeganen werden soll. Im Vordergrund steht dabei die Debatte, ob die strafrechtliche Aufarbeitung notwendig ist oder nicht. Gegenargument der Strafverfolgung ist zusammenzufassen in vier: i)negative Auswirkung auf den Versöhnungsprozess, ii)komplizierte rechtlichen Probleme - wie Verjährung und Rückwirkungsverbot, iii)Unmöglichkeit, die in einem politischen System begangen Untaten einzelne Individuen zu bestrafen, und iv)Vorwurf der Siegerjustiz. Befürworter der Strafverfolgung betont dagegen i)Befriedigung der Opfer des Unrechtssystem, ii)Legalitätsprinzip, iii)Generalpräventive Auswirkung, und iv)volkpädagogische Effekt durch das Bewusstmachen von Geschichte. Trotz aller Auseinandersetzung besteht es aber Einigkeit darüber, solcher Unrechtsregime bzw. Unrecht nie wieder wiederholt werden darf. Genau in diesem generalpräventiven Effekt liegt die wichtigste Notwendigkeit der strafrechtlichen Aufarbeitung der Regierungskriminalität. Außerdem decken sich strafrechtliche Aufarbeitung die Erwartungen der Allgemeinheit. Kenntlichmachng des Unrechts, Wiederherstellung des zerrütteten Rechtsbewusstseins, Gerechtigkeit für Täter und Opfer, Schulderkenntnis und Reue als Voraussetzung für Versöhung. Es geht also nicht um Siegerjustiz, sondern schließlich um die Verwirklichung und Durchsetzung des Rechtsstaats. Um ein Rgime als Gegenstand der strafrechtlichen Aufarbeitung zu bezeichnen, braucht der Rechtsstaat die Bewertungsmaßstabe zur Unterscheidung von Rechts- und Unrechtsstaat, auf deren Basis die Akte des Vorgangerstaates pauschal beurteilt werden können. Die beiden Staatstypen können nach folgenden Kriterium unterscheiden werden: Ein Staat, dessen gesamtes Rechtssystem in vollem Umfang funktionsfähig ist, ist ein Rechtsstaat und ein anderer Staat, in dem die systematische Verletzung selbstgesetzten Rechts vorherrscht, ist ein Unrechtsstaat. Wenn ein Staat außerdem noch weitere Merkmale zeigt, wie z.B. Einparteienherrschaft, staatlich verwaltete Ideologie, extensiv Staatsschutzpraxis, und exklusiv über das Machtmonopol verfügende Gruppen, kann man diesen als totalitäre Diktatur bezeichnen, die typisches Unrechtsstaat darstellt. Diese Merkmale sind auch in Nordkorea gegeben. Daran, dass Nordkorea in diesem Sinne eine totalitäre Diktatur ist, besteht kaum Zweifel. Der Gesamtumfang des Unrechts innerhalb des nordkoreasnichen Regimes scheint deutlich massiver zu sein als derjenige der DDR und nähet sich eher der nationalsozialistischen Diktatur an. In diesem Sinne bedarf der Unrechtsstaat Nodkorea ohne Zweifel notwendig einer strafrechtliche Aufarbeitung. Was man aber nicht übersehen darf ist, dass das Strafrecht nur ein beschränktes Mittel zur Aufarbeitung der Vergangenheit und daneben auch eine historisch-politische Aufarbeitung erforderlich ist.
  • 15.

    A Comprehensive and Critical Study on Resignation of Real Right

    KANG TAE - SEONG | 2015, (66) | pp.483~530 | number of Cited : 9
    In this thesis, I develop a comprehensive and critical study on resignation of real right systematically. Namely, I criticize existing precedents, theories and registration-practice on resignation of real right, after these strong criticisms I propose my creative and consistent alternatives relating on resignation of real right in the same order as follows. Ⅰ. Concept and Classification of Resignation of Real RightEspecially, I classify this resignation as relative resignation and absolute resignation Ⅱ. Nature and Applied Regulation1. Is the resignation of real right a partner act?2. Is the resignation of real right a legal act?3. The Korean Civil Code Part Ⅰ on legal act is applied on the resignation. Ⅲ. Approval Bound1. Relating approval bound of unilateral act2. The extinguishment-notification of Chonsegwon is a resignation of real right3. Is possessory right resigned? Ⅳ. Relationship with This Resignation and Public Notice-Method1. Should the public notice-method be equipped?2. Should registration of any kind be made?3. Can possessory right be given up? Ⅴ. Does Holder of a Real Right Apply for Registration Unilaterally1. Is unilateral registration allowed?2. Claim for registration Ⅵ. Effectiveness of Resignation of Real Right1. The effectiveness of resignation in Germany and Japan2. The effectiveness of resignation in Korea
  • 16.

    Vertragsnamentreuhand und Anfechtungsrecht von Gläubigern eines Treugebers

    Joon Hyun Lee | 2015, (66) | pp.531~556 | number of Cited : 3
    Namentreuhand war seit ca. 100 Jahren als ein eigenartiges Rechtsinstitut im koreanischen Rechtssystem nach Rechtsprechung anerkannt. Dazu gehören Vertragsnamentreuhand und Grundbuchnamentreuhand. Namentreuhand und die gefolgte Übertragung des Eigentums sind nach Immobiliennamen- realisierungsgesetz(INRG) im Jahre 1995 grundsätzlich nichtig geworden. Doch regelt § 4 Abs. 2 S. 2 INRG ausnahmsweise die Übertragung des Eigentums als gültig, wenn ein Verkäufer das Bestehen der Namentreuhandvereinbarung in Vertragsnamentreuhand nicht kennt. Demzufole trägt sich ein Treunehmer als Eigentümer im Grundbuch ein und ist nur zur Herausgabe des zum Kauf empfangen Gelds verpflichtet, während ein Treugeber im Innenverhältnis mit dem Treunehmer tatsächlich eine Eigentumsmachtbefugnis der Immobilie hat, die als Eigentum des Treunehmers im Grundbuch eingetragen ist. Der Treugeber kann von der Immobilie tatsächlich freiwillig Gebrauch machen, daraus Nutzungen ziehen und darüber verfügen. In der letzten Zeit ist in einer Entscheidung des Koreanischen Höchsten Gerichtshofes(KHG) umstritten, ob es für die Gläubiger des Treugebers ein Rechtsgeschäft zum Nachteil ist, dass der Treugeber die Immobilie, die gesetzlich zwar zum Eigentum des Treunehmers gehört, doch tatsächlich freilich verfügbar ist, auf den Dritten überträgt, wenn Übertragung des Eigentums in Vertragsnamentreuhand gültig ist. In der Behandlung ist die Entscheidung des KHG(Entscheidung von 2013.9.12. 2011Da89903) kritisch untersucht.
  • 17.

    Disability Discrimination Law and the Concept of ‘Disability’ in UK

    Jo, Im Young | 2015, (66) | pp.557~594 | number of Cited : 5
    The Anti-Discriminatio n Against and Remedies for Persons with Disabilities has been enforced since 2008 in Korea. This Act defines person with disability as a person who has a disability(art.2(2)). In the Act, disability means an impairment or loss of physical or mental functions that substantially limits an individual’s personal or social activities for an extended period(art.2(1)). The purpose of this article is to provide a basic research on the interpretation and application of the definition of disability in the Act by studying the concept of disability in UK. In the Equality Act 2010(EqA), a person has a disability if he or she has 'a physical or mental impairment' which has a 'substantial and long-term adverse effect on ability to carry out normal day-to-day activities'(S.6(1)). The supplementary provisions for determining whether a person has a disability are found in Schedule 1 to the EqA, Regulations, Guidance and Code of Practice. Within the contours of the definition of disability in EqA, four criteria need to be satisfied to establish the existence of a disability: there must be a) a physical or mental impairment, b) which must affect the ability to carry out normal day-to-day activities, c) in a long-term and d) substantial manner. This article studies each of four different conditions and draws issues. The main characteristics in implementation of the definition of disability is as in the following. The term 'mental or physical impairment' should be given its ordinary meaning. It is not necessary for the cause of the impairment to be established. Whether a person is disabled for the purposes of the Act is generally determined by reference to the effect that an impairment has on that person’s ability to carry out normal day-to-day activities. A 'substantial' adverse effect simply means an effect which is something more than minor or trivial(EqA S.212(1)). Courts and Guidance emphasis that it is important to focus on what an individual cannot do, or can only do with difficulty, rather than on the things that he or she can do. 'Normal day-to-day activities' means activities that are carried out by most men or women on a fairly regular and frequent basis. The Schedule1 to the EqA provides the meaning of long-term. The statutory definition of disability in EqA represents the medical model, focusing as it does on the functional limitations of a person. However, the definition of disability interpreted and applied so as to not frustrate the principle of non-discrimination as far as possible.
  • 18.

    A Legal Study on foreigner investment enterprise’s listing on GEB in China

    Yang Hyo Ryoung | 2015, (66) | pp.595~624 | number of Cited : 0
    As the Chinese government recently tries to build a multilayered capital market, they establish and operate an exclusive financing market only for technical innovation enterprises and high growth type of small and medium enterprises, namely Growth Enterprise Board (“GEB”), at the Shenzhen Stock Exchange. Since the listing entity enabling to list on GEB should be a limited company passing more than 3 years from the date of legal establishment, foreign investor should establish a ‘foreigner investment limited company to have form of limited company. There are the way of new establishment, changing establishment of foreigner investment enterprise or merger and acquisition of domestic capital company in China, in the way to establish ‘foreigner investment limited company’. In order to be listed on GEB, ‘the foreigner investment limited company’ should obtain a written consent of the Chinese Ministry of Commerce and a prior permission of the China Securities Regulatory Commission at first, and foreign investment is under the relevant regulation pursuant to “the provision to guide direction of foreigner investment” and “the list to guide foreigner investment industry”There is no restriction relating to the ratio of intangible assets in requirements to list on GEB, but the company should engage in the single business category, and be in the black for latest consecutive 2 years and record more than ten million yuan (renminbi) of accumulated net profit, or be in the black for latest one year and record more than five million yuan (renminbi) of net profit, more than 50 million yuan (rinminbi) of operating income for recent one year, more than 30% of growth rate of sales (operating income) for 2 years, more than 20 million yuan (renminbi) of net assets (net assets before listing) at the end of latest fiscal quarter, more than 30 million yuan (renminbi) of total amount of market price after listing. Furthermore, minority stockholder’s equity ratio should be more than 30% of total number of stocks issued and publicly issued stocks should be more than 25% of total number of stocks issued, and in case total amount of capital stock shall exceed 400 yuan, the rate of publicly issued stock should be more than 10% and internal governance structure should be established. Moreover, considering characteristics of the foreign investment limited company, in case of listing on GEB, the relevant countermeasure regarding the below regulation may be taken account of. Foreign investor’s investment ratio of the foreigner investment limited company should not be less than 25% of total capital stock, and the Chinese investor may, under normal circumstances, not be a natural person (individual), but a natural person (individual) who is a Chinese stockholder of the corporation merged and acquired by the method of acceptance of stocks shall be able to become a stockholder of foreigner investment limited company which was changed and established successively, by obtaining permission of the Chinese government only in case the said natural person (individual) shall own his stocks more than for one year. In addition, in case it shall be needed to make judgment regarding transaction between foreigner investment limited company and its affiliated person, competitive relation with the similar business category, comprehensive and careful consideration should be made in various ways such as characteristics of management affairs, product type, difference of consumer’s pattern, substitutability of products and labor, sales method, stockholders’ status, including the relevant regulation about information disclosure system and guide for listing.