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2015, Vol., No.67

  • 1.

    A Study of the Tort Liability in North Korea

    SONG YOUNGMIN | 2015, (67) | pp.1~26 | number of Cited : 1
    An author intends to analyze features of the Personal Damage Act(PDA) in North Korea through the comparison of the damages law between the South Korea and the N.K. Conclusions are as follows: First, the compensation for personal damage is restricted to a tort. The Civil Act of the N.K. Section 246(2) provides that A person who infringes on a human dignity or honor, and leaves another’s body and personality with indelible scars should compensate without reference to prescription. This Section could be construed as a positive protection against the tort. Second, someone insists that the compensation of the PDA of the N.K. does not cover infringement of the human body, but only covers an infringement of freedom, honor or personality. An author thinks, however, that there is no a resonable reason to interpret restrictively the Section 246(2) in relation to Section 248 of the PDA. Third, Section 45 of the PDA provides that right to the compensation against an infringement of the human body should not be transferred. It is notable that this is similar to Civil Law both in Germany and Japan. Forth, it should also be pointed that, where a victim dies, a lost income is not recognized. Finally, an extinctive prescription of a bond is only one year, but, in case of an infringement of the human dignity or honor, and leaves another’s body and personality with indelible scars, the victim is able to claim his or her damages without prescription.
  • 2.

    The Labor Regulations and Social Rights of Gaeseong Industrial Complexes - Focusing on Amendatory Labor Regulation of G.I.C. -

    Moon Moogi | 2015, (67) | pp.27~62 | number of Cited : 7
    Abstract PDF
    The possibilities of North Korean change are hinted recently by the introduction of the open-door policy and capitalistic market economy. And it is noteworthy that efforts to address labor flexibility elements have been discovered in labor regulations, which applied to Special Economic Zones. Gaseong Industrial Complexes is estimated as a touchstone of direct investment to the North Korea by private sectors at the first time and on a large scale. Especially this business is meaningful that it has not only interests of economy considering its abundance of low-wage, high-quality labor force, the ease in securing industrial sites, familiar language and culture, a variety of potential tax benefits but also national reconciliation and correspondence. However the business in G.I.C. has many problems to solve, because there are some criticisms around social rights i.e. the fundamental human rights of labor. To resolve theses matters we should give some resolutions about workforce supplement and initiative in labor relationship from recruitment to termination, labor productivity and participation in production management. But most af all, if direct paying system became not fixed, there could be room for doubt that the authorities of North Korea have stolen the wage of northern workers, however the minimum wages and social insurance premium rise up according to Amendatory Labor Regulation of G.I.C.. And the representatives of northern workers should be elected in clean and democratic way too for the democratization in the workplace. Finally, it is requested for giving due considerations to north korean workers' welfare and equality, which for the healthy and sound working conditions.
  • 3.

    Die einheitliche Auslegung der Verfassung von Art. 107 Abs. 2 KV

    Lee, Boo Ha | 2015, (67) | pp.63~86 | number of Cited : 2
    Als Normenkontrolle ist das Verfahren gem. Art. 107 Abs. 2 KV auf die Prüfung und Entscheidung gerichtet, ob eine Rechtsverordnung oder Satzung mit höherrangigem Recht vereinbar ist. Die Normenkontrolle ist konkret insofern, als die Prüfung aus Anlass und im Rahmen eines konkreten Rechtsstreits stattfindet. Es handelt sich um eine prinzipale Normenkontrolle, d.h. die Verfassungsmäßigkeit oder Gültigkeit einer Rechtsverordnungen und Satzungen ist Hauptfrage des Verfahrens im Unterschied zur lediglich inzidenten Normenkontrolle als Vorfrage einer gerichtlichen Entscheidung. Die Verwerfungskompetenz steht der Fachgerichten nur hinsichtlich solcher Art. 107 Abs. 2 KV zu, die unter den Begriff der Rechts- verordnungen und Satzungen subsumierbar sind. Der Oberste Gerichtshof hat eine letztendliche Entscheidungskompetenz darüber, wenn es bei der Feststellung der Entscheidungserheblichkeit darauf ankommt, ob Rechts- verordnungen und Satzungen verfassungs- oder gesetzeswidrig sind. Bei der konkreten Normenkontrolle ist die Entscheidungserheblichkeit der Norm für den Ausgangsfall Voraussetzung der Zulässigkeit der Richtervorlage. Das koreanische Verfassungsgericht kann die Ver- fassungs- oder Gesetzeswidrigkeit der Rechtsverordnungen und Satzungen ohne Entscheidungserheblichkeit prüfen. Die Entscheidungserheblichkeit hängt nach der ständigen Recht- sprechung des koreanischen Verfassungsgerichts davon ab, ob die im Ausgangsverfahren zu treffende Entscheidung bei Gültigkeit der Norm anders lautet als bei deren Ungültigkeit. Die Gültigkeit einer Rechtsnorm ist nur dann entscheidungserheblich, wenn hiervon die im gerichtlichen Ausgangsverfahren zutreffende Entscheidung abhängt, es also für den Ausgang des Verfahrens vor dem Fachgericht auf die Gültigkeit der zur Prüfung gestellten Norman kommt.
  • 4.

    A Study on Land Ownership System of Unified Korea

    LEE SANG CHEON | 2015, (67) | pp.87~120 | number of Cited : 6
    In concern with controversial compensation, there is a view that no compensation is needed for those who left the North Korea, but such a compensation according to the principle of proportionality would be needed for them. By that the Unified Korea could be called ‘nation by rule of law’ There are several patterns in concerned with land ownership system, which are called ‘land public ownership system’, ‘land public lease system’, ‘land-value public ownership system’ etc. In concern with land ownership system as formation of land ownership pattern, the private ownership system of South Korea should be applied to the North Area. The base of the above opinion is as following. Firstly, the Unified Korea should not stand in the middle of both sides in view of land ownership pattern. South Korea have strong stance on its private ownership system. The middle stance would be very dangerous to swing the Unified Korea. It would make he Unified Korea fall tinto confusion. Secondly, the private ownership system should be called as core of capitalism. A lot of theories have been developed around it. To continue the economic development after unification of Korea, the private ownership system should have firm stance on the Unified Korea of future. Thirdly, the South and the North should have same land ownership system in time of the Unified Korea, and never have its own different land ownership system each other. Thus the North should have the private ownership system. If the North and the South have its own land ownership system each other differently, it could lead to the economic confusion and delay the economic prosperity of the Unified Korea. Fourthly, there is a difference between constitutional law of Deutchland and that of S. Korea. It should be reflected to the realistic compensation by the Unified Korea. In concrete, the compensation by the Unified Korea is more needed for the original land owners than in case of Deutchland.
  • 5.

    Nuclear Power and Local Autonomy: the legal nature and its legal effects of the local referendum of Samcheck city at Octo. 9, 2014

    Park Tae-hyun | 2015, (67) | pp.121~142 | number of Cited : 3
    The Samcheck city hold the local referendum on whether to concede or to revocate the request for the nuclear power plant positioning (hereinafter referred to as “the nuclear power request”) at Octo. 9, 2014.(hereinafter referred to as “the 10ㆍ9 local referendum”). The poll shows that the overwhelming number of the residents prefer to pull back on the nuclear power request rather than to maintain. The Samcheck Mayor has requested since the referendum that the Samcheck residents’s collective opinion represented through the 10ㆍ9 local referendum should be taken seriously by the central government, and thereby the administrative action for designating ‘Prearranged Area for Electric Source Development Business (hereinafter referred to as “the PAESDB action”) be repealed ex officio. I examined the three legal questions raised from the 10ㆍ9 local referendum. First, whether under the existing Residents Voting Act(hereinafter referred to as “the Act”) the 10ㆍ9 local referendum, voting matter of which was whether to withdraw the nuclear power request or not, is lawful or not. Second, whether a local referendum de facto, which was held pursuant not to the Act but to the mayor’s discretionary political or policy determination, is to be permitted or not. Lastly, if the nuclear power request could be pull back on, when will be the deadline? And the what are the effects of the withdrawal of the request on the PAESDB action. The conclusions drawn from the examination to the questions above are that ⑴the nuclear power request itself is to fall within the category of autonomous affairs capable of being determined by the local government even though it may be incorporated in the administrative process of nuclear power development project. When if the nuclear power request is autonomous affair, so may be said about the withdrawal thereof simply because they are two sides of the same coin. Therefore, the matter of whether to withdraw the request or not is eligible to the voting matter of local referendum according to the Act. ⑵The 10ㆍ9 local referendum as de facto local referendum would be permitted provided that there is no Acts or provisions that make it unlawful. ⑶In light of balancing interests over the PAESDB action, the nuclear power request could be withdrawn before the PAESDB was established irrevocably by the permitting nuclear power development project plan. By the withdrawal of the nuclear power request made at Sep. 22. 2014 the PAESDB action has became revokable.
  • 6.

    Theoretical Background of a recital of regulation, including a protocol of German Criminal Procedure Law and comparison with Korean Criminal Procedure Law

    kwon oh geol | 2015, (67) | pp.143~164 | number of Cited : 5
    The important issue in the process of the fact-finding is as follows. If direct evidence does not exist to the fact in issue, is it possible to use the indirect evidence ? More concretely, could be allowed it for the judge to use the protocol made by the investigation process at the court. At the study on the above, We can know risk of the fact finding by using the substitute evidence, Therefore German Criminal Procedure Law(StPO) Article 250 provides as follows : In case that some evidence regarding the facts is based upon an individual's perception, Judge must ask directly to the person about the facts. The direct questioning can not be replaced as the statements or written statement that was made during investigator's questioning. German Criminal Procedure Law' Article 250 needs direct evidence for the fact finding. But Article 251 and 255a recognize for the finding real truth as best as possible use of the closest equivalent to the evidence of alternative evidence. Also ‘The direct evidence of the principles’ and ‘Investigated ex officio obligation’ at the German Criminal Procedure Law are not each other opposing concepts, but complementary principles. The two countries-Korea and Germany- about hearsay(alternative) evidence have approved the exceptional admissibility under the certain conditions, and the basis of background of the exception also are same. Detailed Code of Criminal Procedure about hearsay(alternative) evidence, certain exception's conditions at the German Criminal procedure Law's are relatively clear than Korean Criminal Procedure Law. And Korean Criminal Procedure Law use very abstract terms such as ‘True existence of evidence’, ‘Recognition of content’, ‘Particularly reliable source of a situation’ etc. Therefore Korean Criminal Procedure Law has so many problems in the face of theory of interpretation. From the De lege ferenda, even if it is inevitable to use abstract wording, Korean Criminal Procedure Law' Hearsay regulation must be repaired. At this work it is desirable that we refer to the German Criminal Procedure Law.
  • 7.

    A review on dispute over essence of responsibility in criminal law

    오정한 | 2015, (67) | pp.165~194 | number of Cited : 3
    In recent discussion on responsibility theory, moral responsibility theory and preventive responsibility theory based on relative indeterminism seems to be a prevalent view. Moral responsibility theory premises a doer’s free will, but in preventive responsibility theory, Jacobs eliminates free will from element of responsibility, while Roxin says free will in criminal law function not as practical fact but as one of norms, so there is no need to prove and it is enough to be just “fiction form”. As mentioned before, in moral responsibility theory, social responsibility theory, preventive responsibility theory, and alternative theory of responsibility which are represented as the conflict between determinism and indeterminism, the existence of free will has always been the start of discussion and important position to investigate the nature of responsibility. However, it has not been proved whether free will exist practically to human beings. “responsibility” that Roxin frequently referred is a eternal subject of criminal law and an essential question in criminal law. And yet at the same time, the dispute over the existence of free will and related issues about freedom is also a typical symbol of insoluble philosophical principle problem. But, Roxin’s opinion is worth to watch over meaningfully because the issue of free will cannot be determinable empirically. Also, if the purpose of prevention can be existed to raise the fundamental rights, not to infringe them, it seems to have a significant meaning to accepting it in the principle of responsibility. In other words, Roxin’s concept of responsibility which considers preventive purpose as maintaining the concept of responsibility as basis of punishment and restriction of punishment seems to minimize the dispute and protect the doer’s fundamental rights efficiently.
  • 8.

    Eine vergleichende Studie über die Urheberrechtssysteme zwischen Süd- und Nordkorea

    Choi, Sang Pil | 2015, (67) | pp.195~218 | number of Cited : 3
    Nach dem allgemeinen urheberrechtlichen Grundsatz der »Abgrenzung von Idee und Ausdruck« gilt der Urheberrechtsschutz nur für Form und Ausdruck eines Werkes, nicht jedoch auch für Ideen und Lehre. Der Maßstab zur Entscheidung über das Vorliegen der Schöpfungshöhe von Werken ist in Korea in § 2 Nr. 1 UrhG festgelegt, sodass sich die heutige Rechtsprechung ganz nach ihm richtet. Demgemäss können Werke nur dann urheberrechtlich geschützt werden, wenn sie individuelle Werke im Sinne des Ergebnisses der eigenen geistigen Schöpfung ihres Urhebers darstellen. Weitere Kriterien sind zur Bestimmung der Schutzfähigkeit nicht erforderlich. Nach dem §8 Nordkoreanischen UrhG(zitiert:NKUrhG) sollte jedoch die urheberrechtlich geschutzten Werken von der zuständigen Behörde ausgewählt werden. Nach dem NKUrhG erlischt das Vermögensrecht eines Urhebers 50 Jahre nach dem Toden, aber wird das Urheberpersönlichkeitsrecht ewig dauern. Darüber hinaus sind die Bestimmungen über die Schranken des Urheberrechts in NKUrhG ganz kurz und unklar. Demgemäß ist es zu schwer, dem Gesetzgebungszweck zu entsprechen.
  • 9.

    Stabilization measures on Registration System of Security over Movable Property

    BYUN WOOJOO | 2015, (67) | pp.219~246 | number of Cited : 3
    The security system in Korea used real estate as a means of financing are being utilized as the main way. Especially, in order to get a finance, the typical method which provides movable property with security in Korea is to establish the right of pledge or to use transfer security. In addition, to evade the transfer of the possession and to avoid the loss of the use profit which is caused by transfer of possession, movable property owner substitutes the right of pledge and there is a tendency which uses transfer security. In this regard, there is a need to find measures to provide a movable assets as collateral and financing that may be made to the safety of transactions. As a result, recent 06. 10. 2010 「Act on security over movable property, claims, etc.」 are established, 06. 11. 2012 registration system as registration of security interest in movable property is being implemented. But, there were a lot of expectations and concerns whether the terms and conditions for the implementation of the system is provided or whether it can be a real role in the financing of small and medium business and small scale businessman. Therefore, after the introduction of the registration system to date, the composition of the various conditions for the settlement of the system is necessary. This paper, in order to activate the registration system as well as the problems of the jurisprudence that had been pointed out as in the past, tries to do some suggestions for practical discussion to invigorate security system over movable property.
  • 10.

    Ownership of Underground Pore hole - Focused on CCS Cases in America

    Ryu, Kwon-Hong | 2015, (67) | pp.247~274 | number of Cited : 0
    After the Industrial Revolution, CO2 emission has been expanded dramatically. As a result of that, it became one of the most important cause of climate change. Even there are many kinds of greenhouse gases, CO2 plays a key role and the share of CO2 emitted from fossil fuel is over 2/3 of total CO2 emitted into the atmosphere. Because of it, how to reduce CO2 emission from fossil fuel became the main issue in international society. CCS is not familiar definition. However, it has long history in America and significant amount of CO2 has been injected into the underground in order to enhance the production of oil and gas. It means that the technology for CCS is actually not new one. CO2 injection has been adapted as an effective solution for raising up underground pressure of old oil and gas reservoir over 50 years in America. The primary issue in CCS is that who has the ownership of pore spaces to which CCS will be injected. This is related to the boundary of land ownership. Who is the owner of the pore spaces from which oil and gas were produced is the critical topic; oil or gas developer or land owner. The person who wants to inject CO2 has to consider from whom he has to get the right to. Although there are variety of laws and cases at different states, those are generally accepted; injector and land owner should not do harm each other, and CO2 injection can be a kind of public good. So, the argument that eminent domain can be vested in CO2 injectors has been developed. In this article, the representative cases relating to the ownership of pore space in America are analysed with trying to find a recommendation to Korea.
  • 11.

    Effects of Partial Reimbursement by One Person among Debtors of Semi-joint and Several Debts

    Bae, Sung Ho | 2015, (67) | pp.275~300 | number of Cited : 9
    This study examines legitimacy and inequity of a dualistic solution from the perspective of the joint debt and outer perish theory adopted in judicial precedents with respect to the scope of residual liabilities of other semi-joint and several debts when debtors of semi-joint and several debts who absorb a large sum of liabilities among other debtors with differing amounts of debts in semi-joint and several debts have made partial reimbursement, and explores the possibility of a unitary solution. When debtors of semi-joint and several debts who absorb a large sum of liabilities among debtors with differing amount of liabilities have made a partial reimbursement, an examination of the scope of residual liabilities of semi-joint and several debts shows that it is thought that it is legitimate to solve the problem in a unitary manner by adopting the outer perish theory in case the debtor of a large amount among semi-joint and several debts reimbursed the debt partially in consideration of the aim of the semi-joint and several debts system intended to secure without fail full reimbursement of debts and attitudes of judicial precedents concerning effects of reimbursement in certain guarantees when the intent of the party concerned and consideration of reimbursed interests of the creditor have been taken into account. That is, a review of the ground of fault ratio theory shows that the theory takes into account beforehand the possibility of the employer being unable to reimburse and reflects this on partial reimbursement. However, the matter of effects of partial reimbursement and distribution of dangers incidental to financial inability are matters on a different level, and it is thought to be sufficient enough to adjust as an ex post facto intended interests in the judicial precedent in case the debtor's financial inability has happened. Accordingly, since the employee or the debtor who does the reimbursing does not ultimately have separate reimbursed interests when the interests of the debtor who does the reimbursing, other debtors and the creditor have been adjusted based on effects of partial reimbursement without premising financial inability, of the interests of the creditor and other debtors whose interests will constitute a problem. That is, if the fault ratio theory has been adopted, since reimbursement has significant effects on other debtors due to relatively partial exemption it is unfavorable for the creditor and when the outer theory has been adopted, extinction in the common portion occurs relatively infrequently, rendering the creditor favorable. This is the point of time for the protection of the creditor in semi-joint and other debts and could be an interpretation that yields benefits for the reimburser as well.
  • 12.

    A Study concerning Analysis and Improvement of Conditions about Treatment-related Costs owing to the Injuries in Car Accident

    Cho, Gyu Seong | 2015, (67) | pp.301~330 | number of Cited : 4
    If the insurance company will pay the insurance money to the victim, in principle, he pays the amount calculated based on the terms and conditions(the former). According to this automobile insurance clause, even if the car accident victims have a lot of fault, the insurance company must pay medical fees of the injuries. However, if the insurance company receives the action, he pays the amount is specified for compensation by the final judgment the Court of the Republic of Korea(the latter). The dispute regarding the interpretation and application of the above ranking terms has occurred frequently in claim adjust affairs. The Supreme Court has ruled that the latter is the first to be applied if a lawsuit is filed. According to this Supreme Court decision, the injured doesn’t know the details of the agreement suffers an unforeseen damages. So I oppose to the final judgement. In addition, I propose a revision of the provisions in order to eliminate any dispute relating to the interpretation of terms and conditions.
  • 13.

    A Study on the Exercise of Enforcement Jurisdiction by Transboundary Abduction from Perspective of International Law : With Special Reference to ‘Ker-Frisbie’ Doctrine

    LEE JIN-KYU | 2015, (67) | pp.331~356 | number of Cited : 1
    Recently, many States seek to justify the exercise of enforcement jurisdiction by transboundary abduction, and U.S. is located in the core among them. The sphere which the abduction is applied is very broad from felony criminality to atrocious terrorists. Many States except U.S., however, are criticizing the State practices of U.S. related to the transboundary abduction. This explains that international agreement on the enforcement jurisdiction by transboundary abduction has not been accomplished yet, and that it has not been justified in the level of international law. The justification for exercise of enforcement jurisdiction by transboundary abduction for which some State including U.S. seek is not compatible with rules of international law on the various points. The most negative effect which such act makes on international law is a serious impair on the territorial sovereignty. Such an impair on the territorial sovereignty can lead the disregard of international law. In order to protect the territorial sovereignty which has a fundamental value in domestic and international legal system, and to lead the respect for international law, every State should act within the frame work of law, and faithfully implement treaties that it made signature. Kidnapping a criminal suspect from foreign State promotes lawlessness. Such actions also demonstrate that government may act outside international law and without respecting the sovereingty of other States. The interests of protecting the sovereignty of States and of upholding treaty obligations should prevail over the exercise of extra-territorial jurisdiction based on anachronism.
  • 14.

    A Review on the Exercise of the International Public Authority

    Kim Sung Won | 2015, (67) | pp.357~388 | number of Cited : 2
    To wrestle with difficult problems driven by globalization, there is a growing need for active cooperation of actors in international society. This is the main engine for establishing various types of international cooperative mechanism. As a international cooperative mechanism, international organizations play a pivotal role in international sphere and their importance are highly highlighted. Through decision, recommendation, and dissemination of information, international organization touch upon right and freedom of individuals and the autonomy of States both directly and indirectly. In order to protect right and freedom of individuals and the autonomy of States, normative mechanism evaluating the legality and legitimacy of activities of international organizations is definitely needed. Restricted to traditional approach to sources of international law, non-binding law or non-law could not belong to the realm of legality test even though they make a substantial impact on right and freedom of individuals and the autonomy of States. In order to place non-binding law or non-law into the sphere of normative control for legality and legitimacy, normative mechanism which is operated by standard instruments should be established. Understanding activities of international institutions as the exercise of international public authority and categorizing the exercise of international public authority into specific standards instruments enables to review activities of international institutions touching upon right and freedom of individuals and the autonomy of States. Both categorizing the exercise of international public authority via standard instruments characterized by binding force, implementation mechanism, addresses and establishing legal regime containing applicable rules and principles, normative control of activities of international institutions is feasible. To the point that various grounds which do not belong to traditional sources of international law could be reviewed withine respective legal regime, an approach towards the exercise of international public has strong merits. However, there are some problems concerning the international public authority approach to the extent that how to make the balance between internal perspective on law and relative concept of law. Also, merging concept of standard instruments into legal regime establishing applicable rules to each standard instrument is also problematic. Furthermore, the international public authority intentionally does not pay close attention to role of international institutional law established in the field of international law. Despite these problems, discourses on the exercise of the international public authority make a huge contribution to legal approach addressing global governance as well as the constitutionalization of international law, global administrative law and global legal pluralism. Further study on the exercise of the international public authority should be continued.
  • 15.

    A Study on the Employment Discrimination Law and System in USA: Title Ⅶ 0f the Civil Rights Act

    Byung-Woon Lee | 2015, (67) | pp.389~433 | number of Cited : 6
    The social institution in U.S.A has influenced to Korea, but generally the legal system including the labor law and system has not been introduced as a well-arranged type. The main reasons are that the precedents has been played an important part as an Anglo-American law system focused on Common Law not the Continental Law as like Korea, and the legislative system has been operated differently between the federal courts and state courts. We thinks that. The introduction of U.S Employment Discrimination Law and System well-arranged will be useful to the persons in charge of labor policy, active labor jurist, and research students by these reasons. In addition, the comparative analysis and evaluation of Korean law and American law will have great significance. A field has the largest numbers of lawsuits will be the employment discrimination problems in the labor laws in the United States. The Title VII of the Civil Rights Act of 1964 is the most comprehensive discrimination legislation, and the act established EEOC(Equal Employment Opportunity Commission) and also prohibited the employment discrimination by the race, color, sex, country of origin, or religion. This study will introduce the philosophy and the legal principle of U.S employment discrimination law. This study is based on two critical minds. One is the contents of the employment discrimination law, and how the society of the United States is by the law. The other is the critical mind to ease the earning differentials by the regulation in accordance with the employment discrimination law focusing on the personal factors of the worker as a solution for the labor polarization by the increasing non-regular workers. We will provide the prospects and the implications for the employment discrimination law and system in Korea through the process of establishment of the discrimination law in the United States by the critical mind, and the verification of the legal principles of this law. Today the United States has not resolved the unfair by the employment discrimination law, furthermore, the social injustice has been expanded by new factors. This is that the establishment of employment discrimination law is not the only solution of the discrimination problems. Korea is different essentially from the United States is multinational and immigrant community, and also the employment structure of each country is different. But Korea shall learn the philosophy and the legal principle of the employment discrimination law in the United States. This study considers the establishment and amendment of the Title VII of the Civil Rights Act, procedure of relief and contents, type of anti-discrimination, and the principles for the formation of discrimination on the employment in the Title VII of the Act and the methodology of the discrimination regulation in the preliminary stage with the above purpose or the critical mind. The concept and structure of the employment discrimination law in the United States, the employer's liability and the burden of the proof that are the theoretical discussion structure, the legal principles and proving method of the discriminative treatment and the influence, and the details of the affirmative discrimination corrective actions and the judical review will be future challenges.