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2015, Vol., No.68

  • 1.

    Die Revision des Verwaltungsprozeßrechts zur Konkretisierungen des Rechtsstaatsgebotes

    Kim Jung Kwon | 2015, (68) | pp.1~24 | number of Cited : 3
    Abstract
    Das Geschicht des Verwaltungsrechts ist ein Prozeß des Aufbaus vom Obrigkeitsstaat zum demokratischen Rechtsstaat. Insbesondere sollten die Verwaltungsgerichtsbarkeit entscheidend zur Demokratisierung der Verwaltung beitragen. Die Bedeutung des Verwaltungsrechts liegt in konkretisierungen des Rechtsstaatsgebotes. Zur Konkretisierungen des Rechtsstaatsgebots bedarf es der kontinuierlichen Revision des Verwaltungsprozeßrechts. Die Revision des Verwaltungsprozeßrechts wurde mehrmals versucht, aber trotz aller Bemüuhungen ohne Erfolg. Das Verwaltungsprozeßrecht und das Allgemeine Verwaltungsrecht hängt eng zusammen. Das Rechtsstaatsprinzip verlangt, dass eine Verwaltungsgerichtsbarkeit unter rechtsstaatlichen Gesichtspunkten geregelt wird. Das Verwaltungsprozeßrecht wird 30 Jahre lang noch nicht revidiert. Es führt zur Stagnation in der Entwicklung des Verwaltungsrechts. Im Hinblick auf das Geschicht des Verwaltungsprozeßrechts, Demokratieprinzip zu aktualisieren, bedeutet die Modernisierung vom Verwaltungsprozeßrecht auch die Modernisierung vom Verwaltungsrecht. Das Rechtsstaatsprinzip verlangt, dass eine Verwaltungsgerichtsbarkeit unter rechtsstaatlichen Gesichtspunkten geregelt wird. Comparativa est omnis investigatio. Das Verwaltungsprozeßrecht sollte so schnell wie moglich revidiert werden.
  • 2.

    A Remedy for the Problems in the Laws on Public Institutions

    Young Woon Kim | 2015, (68) | pp.25~47 | number of Cited : 1
    Abstract
    There have been nationwide interests in the management of public institions in Korea because their number and variety are greater than those in other OECD member nations. Such interests have been changed into a key national agenda to innovate public institutions these days as their weak performances, lax management and loose work ethicks were revealed publicly. Specifically, Korean government has focused on both finding out and eliminating their irresponsible practices and forcing them to innovate themselves by using the powerful tools the government hold, for example, the mandatory performance evaluation and incentive system. Though the national drive is a step in the right direction, this study questions if the government may overlook the importance of diagnosing the status quo of overaching laws on public institutions. Given that the governmental management of public institutions is always based on the laws, it would be helpful to review the basic law system to manage the public institutions in searching for the fundamental remedy for their alleged illness. Based on two theories, principal-agent theory and new public management theory, this study tries to understand the law system on the public institutions management comprehensively and analyze the appropriateness of the goal and contents of governmental management of the institutions on the relevant laws. This study argues that while it is necessary for the government to intervene in the operation of public institutions to secure the fulfillness of public interests, the intervention should not restrict the minimum autonomy required to acquire the efficiency expected as independent public entities. It also suggests that for the balanced fulfillment of both public responsibility and efficiency, the differentiated management strategies for each type of the instititutions are desirable, holding the overarching management principles as they are in the laws. The rational typology of public institutions is necessary before exploring the strategies, of course.
  • 3.

    Publicness-Oriented Performance Management System A Study of a New Public Law called GPRAMA -

    Hwang-Sun Kang | 2015, (68) | pp.49~79 | number of Cited : 1
    Abstract
    This study attempts to propose a new framework of performance management named a publicness-oriented performance management system. Recently, replacing the Government Performance and Results Act of 1993(GPRA), the U.S. federal government enacts a public law called the GPRA Modernization Act of 2010, GPRAMA. This study explores a possibility of designing an innovative framework of performance management based on the GPRAMA. Since the GPRA has been the icon of administrative reform throughout the whole world, the ideology of result-based management takes roots within various kinds of government organizations. This study shows several research results indicating effectiveness of the GPRA. Based on those findings, it is discussed which factors makes the GPRA effective tool for productive public management. Utilizing the wide range of previous studies of government documents, this study suggests it is possible to design a publicness-oriented performance management system. For the research objective, three components of the idea of publicness are drawn from the theory body related with the definition of publicness: spirit of representativeness, diversity, and public sharing. This study how the GPRAMA reflects those spirits within itself so that several useful implications are discussed how a performance management is able to lead to consolidating the idea of publicness in public organizations.
  • 4.

    City Corporations and labor relations Law in Korea

    Song, Kang Jik | 2015, (68) | pp.81~109 | number of Cited : 1
    Abstract
    I intend to analyze labor relations of the City Corporations in Korea. The Corporations are established by each local government concerned. I had an opportunity to appraise business management of the 15 Corporations supervised by the Ministry of Government Administration and Home Affairs. In the appraising of business management, I handled labor relations part among some various appraisal parts. Conclusions are as follows: First unfixed term workers generally are not able to join trade union. Second plural unions should in principle unify within a bargaining unit to bargain with an union members’ employer by the Trade Union and Labor Relations Adjustment Act Sec. 29-2. These demands by the Act are not kept. Third there are also some legal problems in collective bargaining agreements. For example union shop clause provides that an employee automatically should be an union member after 30 days from he or she is employed. This like clause is, however, null and void because only an employee has a right to join union or does not. Forth it is not clear to distinguish a function of a Labor Management Council from a function of a collective bargaining where a trade union is established. A function of the Council is expected to pursue a cooperation between an employee side and an employer side, but a collective bargaining has in principle a character to adjust or compromise their interests each other. The Council directly or substantially takes, however, a role of the collective bargaining. Only the Council fails to an agreement, objects concerned are negotiated in the collective bargaining table. Finally a system of appraising of business management excessively intervene in labor relations. It should be noted that a decision of labor conditions, and terms of employment of contract in principle must be reserved to the autonomy by an employee and its employer especially through the collective bargaining. According to the system, however, it compels all Corporations to keep uniform standards with respect to holiday, leave etc. Also the system takes strongly a negative position against a strike.
  • 5.

    A Critical Study on the Educational Goal and Method in Korean Law School - Centering around the relative intensification of ‘Basics of Law’

    LEE JONG-KHIL | 2015, (68) | pp.111~144 | number of Cited : 1
    Abstract
    This article is aimed at studying improvement of controversial issues that are come to light in Law school education, which commenced seven years ago in Korea. In this paper I critically examine how to practice the essences of ‘scientific Law’ including ‘basics of law’ corresponding to the goal of education within Law School system. The present age, Korean society demands ‘Cultivating men of ability through the education’ in producing the men of legal circle, and there is a cry for reform to Korean legal circle. So I want to raise the controversial issues and suggest the reformative plans in the context of Law School education system. Also ‘legal history and basics of law’ education which inquires into the experiment justice can offer graduate students the social justice and the insight for good judgement. Finally I suggest that the needs of the times in education system of law school is a radical change for the competent person who could realize social justice.
  • 6.

    Study on Inter-regional Conflict of Laws in China

    CHO DONG JE | 2015, (68) | pp.145~178 | number of Cited : 2
    Abstract
    Conflict of laws is a normal phenomenon which exist in certain area or even every area within the legal system. At present, due to the historical reasons, the legal systems are different among Mainland China, Hong Kong SAR, Macau SAR, and Taiwan. Along with the continuously development and progress made by Chinese society, the more and more frequently commercial transactions among Mainland China, Hong Kong SAR, Macau SAR, and Taiwan render conflict of laws a reality within China. The particularity, universality, profundity and complexity of the conflict of laws in China make it incomparable around the world wide. According to the trend of development of the inter-regional laws and the frequency of communications of these four places, wether the laws should pursue the integrity and consistency has become a hot topic. As a fact, based on the current situation, it is impossible. As a overall view of this situation, every place (Mainland China, Hong Kong SAR, Macau SAR, and Taiwan) has it own legal system. As a result, the politics, economy, culture are totally different from each other. Instead of looking forward to form unified law, it is better to find a appropriate way to solve the conflicts of laws. This paper takes the causes and the particularity of the inter-regional conflicts in China as the starting point, based on the basic principle of the inter-regional conflict of laws, formed a research framework of the conflict resolution mechanism, in order to study the characteristics of inter- regional conflict of laws in China.
  • 7.

    Ein Beitrag zum verfassungsrechtlichen Mutterschutz

    Hyeyoung Jung | 2015, (68) | pp.179~208 | number of Cited : 4
    Abstract PDF
    In der Arbeit wird eine Erklärung dafür gegeben, warum die Verfassung jeder Mutter den Schutz und die Fürsorge der Gemeinschaft zusagt. Die Mutterschaft jeder Mutter bedingt durch ihre biologischen Fähigkeit, ein Kind zu empfangen, zu gebären und als Säugling zu ernähren und aufzuziehen, äußert sich in Schwangerschaft, Niederkunft und Stillzeit. Damit ist die Lebenssituation umschrieben, die nach der verfassungsrechtlichen Bestimmung das Bedürfnis nach Schutz und Fürsorge der Gemeinschaft hervorruft. Der Begriff der Mutter i. S. V. Art. 36 Abs. 2 der koreanischen Verfassung(KV) ist im biologisch-medizinischen Sinne zu verstehen. Berechtigt ist also nur die leibliche Mutter, d. h. eine Frau, die ein Kind empfangen hat, es erwartet und zur Welt bringt. Das Ziel des Art. 36 Abs. 2 KV besteht darin, die Belastungen der Mutter, die im Zusammenhang mit der Schwangerschaft und den übrigen Folgen der biologischen Mutterschaft stehen, auszugleichen. Es ist bedürftig, dass Art. 36. Abs. 4 KV als ein echtes Grundrecht im Sinne eines subjektiv öffentlichen Rechts auf Schutz und Fürsorge ändert. Damit kann Man den Absatz vielmehr als subjektives Rahmenrecht begreifen, das jeder Mutter an sich, d. h. vorbehaltlich der Berücksichtigung gegenläufiger Prinzipien, einen Anspruch auf Schutz und Fürsorge gewährt. Dem dergestalt beschriebenen subjektiven Grundrecht entspricht objektiv-rechtlich ein bindender Auftrag an den Gesetzgeber. Die Norm dient der Verstärkung des Grundrechtsschutzes, indem sie den Gesetzgeber zur Gewährung von Schutz und Fürsorge verpflichtet, auch wenn sich niemand auf das Grundrecht beruft oder eine Verletzung des Grundrechts wahrnimmt.
  • 8.

    The Constitutional Study on the Permission of Duplicate Candidacy in Parliamentary Elections

    박해영 | 2015, (68) | pp.209~244 | number of Cited : 2
    Abstract
    National Election Commission has recently submitted comments of Political Relations Act amendment to the National Assembly. They allow duplicate candidature in the parliamentary elections and proposed the introduction of proportional representation divided the country into several zones. Both systems have never undertaken in heavy discussions on the pros and cons. Since the electoral system is the process to elect representatives of the people who faithfully perform the important decisions for the country, all the procedures must be objective and fair and must be able to accurately reflect the will of the people, yet it is difficult to decide which system will be the most beneficial for the country and its citizens. It shall be determined by considering the factors influencing a country's laws and institutions such as political, social, culture and tradition. The discussion of whether to allow the access of redundant candidacy is also preferred. Good systems in foreign countries also do not suit our country as the end results will be negative due to incompatibility. In particular, it is necessary be cautious introducing a new system. Especially a system that is not often used in many countries. The purpose of this paper is to research a constitutional point of view represented by the opinion that it is not reasonable to allow duplicate candidature in the parliamentary elections in the Republic of Korea. The paper will review the proposals of the National Election Commission about permission of allocation duplicates and then investigated other countries' case law and doctrine by adopting the system, such as Japan and Germany and examine the specific grounds of opinions of the pros and cons of the proposal in the Republic of Korea. The conclusions were presented in a way that complements the problems of the current system rather than introducing a new system.
  • 9.

    Systematization of the Korean theory through comparison legal examination of the loss compensation concept - Mainly on the consistency reconsideration of the loss compensation theory of our country through Korea, Japan, loss compensation theory analysis of Germany -

    YeonPal Cho | 2015, (68) | pp.245~279 | number of Cited : 2
    Abstract PDF
    Ossennbühl said that Because the precedent after the gravel collection judgment(BVerfGE 58,300(324)) is hard to be called the expropriation similar infringement. It should call yourself “.Anspruch aus rechtswidriger Eigentumsverletzung”. Therefore, I call an expropriation resemblance infringement theory before the gravel collection judgment an old expropriation resemblance infringement theory. And I call an expropriation resemblance infringement theory after the gravel collection judgment a new expropriation resemblance infringement theory. I think that I can reduce the confusion in many theories by doing it in this way. And in the Japan, it classify when a non-property right is violated when a property right is violated by an illegal no fault act. In the former case, 'Theory to be able to demand loss compensation from a court' is a common view, a precedent. In the latter case, (when a non-property right is violated) there is the theory that loss compensation based on constitution Article 29 Section 3 is possible, but there is the theory that there is not. And in the korea, there is an opinion to object to by the introduction of the separation theory. The opinion says that there is a difference between expropriation (Enteignung) in the German fundamental law and the Korean constitutional rules. Therefore, it is said that the opinion cannot just receive a German separation theory. However, the German civil court sorted restriction on a private right for public utilities as follows. the restriction on a private right for public utilities that it is impossible to submit to. and the restriction on a private right for public utilities that it cannot be hoped that submit to it without compensation. And, in the case of the former, assumed it "a limit" by fundamental law Article 14 Clause 3. Therefore, it is thought that can adopt the separation theory as far as I interpret a limit of constitution Article 23 Clause 3 like the former in Korea. I agree to the introduction of the separation theory in such a meaning and answer in the affirmative in the introduction of the new expropriation resemblance infringement theory. However, I object to the introduction of the old expropriation resemblance infringement theory. A separation theory and the old expropriation resemblance infringement theory are because they cannot coexist on the logic.
  • 10.

    The Development of Property Division at Divorce and its Improvement Direction

    Lee Hye Jin | 2015, (68) | pp.281~299 | number of Cited : 2
    Abstract
    The property division at divorce was introduced by the revision of family law in 1990. Before its introduction, the property clearance and support at divorce was accomplished by paying consolation money, but because its legal characteristic carries a damage, a spouse responsible for breaking marriage could not be compensated sufficiently for her or his contribution to making wealth during marriage. As even an irresponsible spouse could not be given as much money as through property division, there was no guarantee of the liberty of divorce. The newly-prescribed only one article in 1990 gave a judge a broad discretion in deciding assets and ratio of property division. Because the provision about property division only tells that the properties made by both sides’ cooperation can be divided, a retirement allowance or pension not given at a close of argument and debts exceeding positive assets have been excluded in division more than 20 years, but the Supreme Court en banc has changed recently its prior decision and decided that they are also objects of division. In deciding ratio of division, courts had a tendency to undervalue the housewives’ doing housework in the intial stages of introduction, but recently more decisions came out that housewife’s ratio of division exceeded 50%. Nevertheless the division ratio decided by a judge varies due to the lack of clear rule. So it needs making a rule prescribing clearly that an equal property division is a ground rule, but that judges can change the ratio from case to case. And pre-division measures for searching the other party’s assets out easily will be needed.
  • 11.

    Elements to Establish Fraudulent Transfer for Future Creditors' Right to Payment

    kang hyelim | 2015, (68) | pp.301~335 | number of Cited : 0
    Abstract
    When fraudulent transfer is made before the debt is incurred, (future) creditors are not in general allowed to apply to the court for the revocation of such fraudulent transfer. In exceptional cases, however, the Supreme Court has held that future creditors are qualified to apply to the court for the revocation of the fraudulent transfer in case the following three elements are established: (i) Existence of legal or factual relations to establish a future creditor's right to payment; (ii) High probability to establish the future creditor's right to payment; and (iii) Actual establishment of the future creditor's right to payment. However, the above principles established by the Supreme Court may lead to a concern that the scope of future creditors' right to payment against fraudulent transfer could be interpreted too broad due to the following reasons: (1) too many factual relations could become bases to establish future creditors' right to payment; and (2) the meaning of high probability is too abstract and not objective. Such concern regarding the scope of future creditors' right usually occurs when the right is established by legal acts such as execution of contracts, so objective standards are necessary to determine ‘factual relations’ and ‘high probability.’ The Supreme Court and many scholars in Korea have observed that, in order to establish fraudulent transfer, the obligor conducting such transfer should have merely a general goal of shielding assets without any specific creditor in mind. On the other hand, the U.S. Supreme Court has held that a future creditor is capable of voiding the transfer as fraudulent if the transfer was made by the obligor with the intent to defraud that particular creditor. My paper suggests that, in order to establish fraudulent transfer for future creditors, the obligor should have at least the knowledge of the particular creditor who is raising claims against the obligor under fraudulent transfer.
  • 12.

    A Study on the Legislation of Rules of State Immunity in Korea

    SHIM YOUNGGYOO | 2015, (68) | pp.337~375 | number of Cited : 2
    Abstract
    In international law, state immunity (or sovereign immunity) has been recognized as a general rule to protect the state’s government and property within a national jurisdiction of any other state, which restricts the execution of national jurisdictions over other states. This rule of immunity which has conventionally been divided into two categories – the rule of absolute immunity and rule of restrictive immunity, was capable of causing unpredictable and substantial risk to individual litigants dealing or making a contract with a foreign sovereign state, even in the cases of wrongful measures by the foreign state such as an unjust or unjustifiable breach of the contract, particularly under the classical rule of absolute immunity. Consequently, most states have recently supported and adopted the rule of restrictive immunity, instead of the traditional rule of absolute immunity, to protect individuals who are capable of remaining in uncertain and unstable positions. Furthermore, regional and international conventions as well as many domestic laws of the US, UK, Canada, Australia, etc. are adopting the rule of restrictive immunity. Introduction and application of the rule of restrictive immunity can be a crucial matter to protect our nationals. Nevertheless, unlike other countries, Korea doesn't have a domestic legal basis for the rule of state immunity yet. Although there has been a possibility of the establishment of the rule of restrictive immunity in judicial practice because Korean national courts have recently decided several rulings according to the rule of restrictive immunity, the necessity of legislation of the rule of restrictive immunity has been emphasized in light of the other states handling the issue with legislative measure. Based on this recognition, this research paper particularly reviews not only the 「US FSIA」 and 「UK SIA」 as representative legislations of states but also 「European Convention on State Immunity」 and the 「United Nations Convention on Jurisdictional Immunities of States and Their Property」 as major codification cases of the rule of state immunity. Through this consideration, this paper examines and suggests a basic direction, standard, and necessity of legislation of the rule of restrictive immunity in Korea. The author expects the discussion in this paper to somewhat contribute to setting up a basic direction of legislative policy for the introduction and application in accordance with international trends and standards of the rule of restrictive immunity.
  • 13.

    South Asian Free Trade Area (SAFTA) and Regional Integration: Revisit the Existing Reality

    정회영 | Dhruba Kumar Gautam | Lee, Hak-Chun | 2015, (68) | pp.377~403 | number of Cited : 0
    Abstract
    The issues of trade liberalization, free trade, and regional as well as global economic integration are the subjects of widely focused area in international trade and policy research. Following the growing trend of other regional trade blocks for trade liberalization and market integration like: ASEAN Free Trade Area (AFTA) formed in 1993, The North American Free Trade Agreement (NAFTA) created in 1994, the deeper integration and continue expansion of European Economic Community (EEC), the agreement of South Asian Free Trade Area (SAFTA) was signed in January 2004. SAFTA initiates to start up regional trade integration after two decades of the establishment of South Asian Association for Regional Cooperation (SAARC). While forming SAFTA, it aimed to act as a stimulus to the strengthening of national and SAARC economic resilience, and the development of national economies of the contracting states by expanding investment and production opportunities, trade, and foreign exchange earnings as well as the development of economic and technological cooperation. Based on these, the purpose of this paper is to explore the real ground of market integration in South Asia and attempts to examine trade realities. Further, it also examines the potentialities of implication of SAFTA identifying its possible direction for future. Based on secondary source of information, trades within the region are more focused to reach into the conclusion. Even though, high potentialities remained for trade and investment integration in this region, it is understood that it lags behind market led integration. The statistical evidence shows that intra-regional trade among South Asian Region is rising slowly, indicates prospects as well as challenges for regional economic integration. Therefore, this paper argues some way forwards to be able to nurture the benefit of SAFTA. The literature in the area of SAFTA is dearth and it is expected that this paper might contribute to the field and provide worth to the policy makers of this region.
  • 14.

    The Right of Labor Organizations to Bargain Collectively and Its‘ Independence

    Gyo-Sook Kim | 2015, (68) | pp.405~433 | number of Cited : 0
    Abstract
    Collective bargaining is a fundamental right. It is a key means through which employer and their organization and trade union can establish fair wages and working conditions. It also provides the basis for sound labor relations. The object of these negotiation is to arrive at a collective agreement that regulates the terms and conditions of employment. Collective agreements may also address the rights and responsibilities of the parties thus ensuring harmonious and productive industries and workplaces. Enhancing the inclusiveness of collective bargaining and collective agreements is a key means for reducing inequality and extending labor protection. Workers' independent right to bargain collectively should not be impeded or restricted by the public authorities, especially by the legislation or the enactment. Workers' independent right to bargain collectively should include such rights as follows; ① the right to choose the party to bargaining, ② the right to elect the bargaining representatives in full freedom, ③ the right to choose the bargaining form, ④ the right to contract the collective agreement etc. ILO Convention No.98 (Convention concerning the Application of the Principles of the Right to Organize and to Bargain Collectively) Article 4 regulates as follows; “Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers' organization and workers' organization, with a view to the regulation of terms and conditions of employment by means of collective agreements.” This paper suggests the problems and their amendments of the Labor Union and Labor Relations Adjustment Act 2014(LULRAA) in violation of the Constitution Law Article 33 as well as the ILO Convention No. 87 and No. 98. as follows; ① the subject of the right to bargain collectively(LULRAA Article 29), ② the right to choose the party to bargaining(LULRAA Article 29 2 sub.1), ③ the right to elect the bargaining representatives in full freedom(LULRAA Article 29 2 sub.2 and 3), ④ the right to decide the bargaining unit(LULRAA Article 29 2 sub.1), ⑤ the right to demand the collective bargaining(LULRAA Article 30), ⑥ the right to contract the collective agreements(LULRAA Article 31 and Article 34). Conclusively speaking, I want this paper contributes the amendment of LULRAA to correspond with the Constitution Law as well as the ILO Convention No. 87, No. 98 and No. 154.
  • 15.

    Definition of Social Welfare Law and Proposals for the Reform of Legal System

    이중호 | 2015, (68) | pp.435~476 | number of Cited : 1
    Abstract PDF
    This paper is of the concept of social welfare and system of legal on the social welfare. Here is examining difference of the concept of social welfare On the side social welfare science and jurisprudence. the concept of seeing any difference, and the difference is that where is occurring, and what legal basis, a system of social law how it was at the Look. Naw days, Service practice cases is tend to put too much emphasis in the areas of Social Welfare. No matter how good the services of social, services are also service subject and demander passed they are made through trail and error. Consequence, the time and cost of importing waste. Social welfare policies, no matter how good the law can take effect without the constitutional Artical 10 to Joe because Joe Artical 34 of essential social welfare and social welfare laws so we can confirm the importance of law and Social Security Business Act. However, the ideological premise of social welfare-related ideas and concepts mentioned at fault ‘as a means of social welfare gwangui’. In other words, learn about the social security system and welfare scholars have classified the scheme would also briefly mentioned. The actual circumstance of studies on the legislation system of social welfare in korea is insufficient, so the more research efforts are required for systematization of social welfare laws. The social welfare law is defined in this study as every laws that insure the human life within social relations and rule the public, and private systems & politics etc. for realizing social justice. and this study suggested the legislation system of social welfare in korea divided into the social security act and the laws in connection with social welfare appling the concept in broad sense. It included in the social security act, general social security(2), social insurance(10), public assistance(6), social welfare service(21) laws and included in other laws in connection with social welfare, the laws(151) that legislated for insuring the human life of constitutional law trying to categorize by classifying into public health․hygiene, residing․environment, education, employment․labor, traffic, feminine․family, children․adolescent, veteran․compensation, human rights․protection and other general social welfare area.