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2015, Vol., No.69

  • 1.

    A Constitutional Review of the Introduction of the Open Primary System (Comprehensive National Primary Election System)

    Manhee Jeong | 2015, (69) | pp.1~41 | number of Cited : 5
    Abstract
    This study reviews the unconstitutionality of the introduction of the open primary system, relating to the constitutional provisions of political parties and then suggests a desirable the democratic system for party nomination because democratic process of party nomination is a core task of intra-party democracy, and changing this process would reform party politics in Korea. Although would be possible to introduce the U.S. primary system as a means of reforming the process of candidates nomination from each party for public elections, doing so could violate the freedom of each political party to legalize an open primary. We should be cautious about introducing the open primary system because it restricts the freedom of political parties and party members’ rights of association because the Korean constitution currently protects these freedoms more than the U.S. constitution does. Thus, in order to establish a democratic system for selecting candidates, Korea should instead opt for a bottom-up, secret-ballot election system where members of each party can vote for their preferred candidate. In addition, any reform should restrictively allow the participation of general voters within each party in a way that does not infringe upon their freedoms. Therefore, it would be unconstitutional to legalize a completely open primary, not a closed primary as is enforced in most states of the U.S. To improve the candidate nomination system in Korea, it is necessary to clarify that the process of party nomination is a compulsory provision, and to enact a legal remedy when the provision is violated under the current Public Official Election Act. If there is a reason to allow participation of the general voters in the primary system, it would be in an effort to increase participation of party members in the process.
  • 2.

    A Brief Review of Trends in Legislation on Integrated Water Resources Management - focused on 「the Basic Act for Water Circulation」 in Japan -

    Kwihyeon Han | 2015, (69) | pp.43~76 | number of Cited : 2
    Abstract
    Water is not only a resource important for the survival of humanity, but is also indispensable for economic development and, further, as a basic element of the ecosystem. Water, an environment in itself, which supports life and facilitates livelihood activities and urban life, is in crisis all over the world. The crisis originates from the fact that water, a circulating resource, is influenced by global warming, acid rain and desertification, and that consequently both water quantity and quality have reached a critical point. Actually most water issues are said not to be related to water quantity issues like water resource development, but to be related to water quality issues of non-sustainable and inefficient use of water. The systematic inappropriateness of water resource development stems from the lack of uniformity of principles that guide water policies or of value system. Against this backdrop, integrated water resources management is required as a basic principle of water policies these days. Arguments on the fundamental structure of the concept of integrated water resources management or on conformity with and dissimilarity to similar policy ideas are not nonexistent, but the concept embraces various principles that have recently caused a small paradigm shift in water policies, and may as well be called an index of future water policies. Meanwhile, in Japan in a bid to promote measures for the maintenance and recovery of sound water policies, the Basic Act for Water Circulation, which may be called the Constitution of Water, was established on April 2, 2014 and entered into force on July 1 of the same year. In short, water is a resource essential for the life of the people to the point of being called 'water for life'. Handing over water in a sound condition to future generations is our responsibility and liability. Consequently, in response to climate change, we think Korea should improve its water-related legislation to the direction of elevating integrated water resources management to a higher level.
  • 3.

    Study on amendment of Korea Marine Environment Management Law against the HNS Convention enters into force

    Ji, Sang-Gyu | 2015, (69) | pp.77~109 | number of Cited : 2
    Abstract
    Marine accident, especially the hazardous and noxious substances (hereinafter referred to as “HNS Cargo”) which caused by the ship accident may have a huge destruction to the environment, the recovery of the destruction is hard and the expense is costly. In the meanwhile, as the area of the marine pollution is not limited, it will also caused seriously pollution to the surrounding countries, which is a enormous damage. The accident caused by the HNS Cargo is not also have a bad influence on the ship and the harbor, but also caused the deadly injuries to the human beings through the seriously explosion, fire hazard and the reactions caused by the chemical substances and sea water. In order to be answerable to the yearly increasing accidents caused by the HNS Cargo, the IMO legislated the international treaties concerning the HNS. The international treaties mainly included The International Convention on Liability and Compensation for Damage in Connection with Carriage of Hazardous and Noxious Substances by Sea (HNS convention) and its 2000 Protocol. For the prevention and the cure of the marine pollution, Korea had formulated the Marine Environment Management Law which went into effect from January, 2008, this law ruled the measures to the marine pollution. However, this law mainly focus on the prevention and the cure of the oil spill, there are no effective measures to the accidents caused by the HNS Cargo. Moreover, the 2010 HNS Protocol had revised the 1996 HNS Convention to expand the definition of the HNS Cargo, and to bring in the compulsory insurance system for the salvation of the aggrieved person. To adapt this world trend and prepare when HNS convention comes into force, the Korean Marine Environment Management Law need to be revised. This paper mainly researched on the necessity of this revise. This paper introduced the international conventions related with the marine pollution and research the mainly contents of the 2010 Protocol. And also, I would like to propose the suggestions to the amendment of the Marine Environment Management Law.
  • 4.

    The study on Occupational Health and Safety Act Punishment System and Violation

    hmhak Cho | 2015, (69) | pp.111~170 | number of Cited : 6
    Abstract
    The most important problem is whether the employer has responsibility about a Safety measures of The Occupational Safety and Health Act violations. In general, it is important that the criminal law is the responsibility directly of violation. Therefore Criminal law has willful or negligent crime is important. But It is hard because there are difficult to apply an crime of omission at A Occupational Health and Safety Act violations. However, a recent The Supreme Court(Supreme Court Decision 2014 Do 3542 Decided May 29, 2014) is widely recognized for employer liability. Direct contractual relationship between the parties in the past, but was recognized safety measures are responsible for the results of actions. As a result the wider the limits of safety measures can be directly responsible for the party's security measures, but is widely Who is responsible for the future given the responsibility.
  • 5.

    The Reasons of Hedge Fund Activism’s Rise and Its Countermeasures - Focusing on the case from the United States -

    NOH MIE REE | 2015, (69) | pp.171~201 | number of Cited : 5
    Abstract
    Due to a recent and sudden rise of a hedge fund activism, corporate governance tends to be changed from board of directors-centered- structure to shareholders-centered structure. In investigating such increase by looking at the cases from the United States, the causes of such increase can be found and explained from the following – decline of staggered boards, growth of proxy advisory firms, amendment of the SEC rules and regulations in respect of proxy, reduction of certain agendas where a brokerage firm can cast a vote, “wolf pack” tactic, conceptual decrease of the notion of “Group”, requirements to grant a proxy access. Further, the companies that hedge fund activist is generally targeting have certain characteristics which include a high ROA(return-on-assets) and a low dividend rate. If we examined the impact of the hedge fund activism in corporate governance aspect, notwithstanding that corporate governance tends to be changed from board of directors-centered-structure to shareholder-centered-structure, it is very important to keep and maintain the proper balance between two authorities. Moreover, with respect to a business performance, some studies found a positive correlation for both long term and short term between a business performance and hedge fund activist, but because it is uncertain how to distribute the capital returns in a target company or why the stock price of such target company rise, further study in respect of such correlation should be conducted to understand the relationship between the business performance and hedge fund activism. Lastly, as a countermeasure against hedge fund activism, this Article will compare, discuss and analyze the key difference between the laws of the United States and the laws of the Republic of Korea in respect of the staggered boards, the condition or requirement for minority shareholders to exercise their voting right and a mandatory reporting requirement by majority shareholders.
  • 6.

    A Study on the WTO Negotiations of Trade in Services

    Choi Hye - sun | 2015, (69) | pp.203~230 | number of Cited : 0
    Abstract
    Under the mandate of Article XIX, WTO negotiations on trade in services began in January 2000. There are four major areas of services negotiations. First, with respect to market access, most Members accept that a result in this part is essential for any services outcome, but general levels of commitment remained below or at current levels of liberalization. Second, Working Party on domestic regulation have made a progress. Chairman attached a text to a document and considerable efforts were made to reduce gaps regarding each para in that text. As a result, there are some paras could be said where agreement had been reached on an ad referendum basis. Nevertheless, some Members argue that more work on service part should commence only after more clarity in other negotiations is achieved. Third, differently from the domestic regulation part, Working Party in GATS rules have not been able to move to a text-based process. Fourth, the Bali Ministerial Conference in December 2013, ministers adopted a decision on the “Operationalization of the Waiver Concerning Preferential Treatment to Services and Service Suppliers of Least developed countries” on 7 December 2013. According to the decision, Members agreed that delegations make a effort to notify preferences as early as possible, and no later than 31 July 2015. By 31 July, eleven WTO members had notified a LDCs services waiver to the Council for Trade in Services.
  • 7.

    A study on the justification of equity investment regulations as deconcentration of Economic Power

    Song, Tae-Weon | 2015, (69) | pp.231~264 | number of Cited : 2
    Abstract
    The Korean Constitution stipulates the Economic Democracy. It is to consider the equity element for the working principle of checks and balance between the economic players. Monopoly Regulation and Fair Trade Act prescribes equity investment regulation as a method of the deconcentration of economic power To enforce properly the deconcentration of economic power Korea Fair Trade Commission need to reflect on the economic impact, especially focused on competition restriction. In other word KFTC should inspect the impact of general concentration to market competition. But as it has been enforced on the aspect of the justification so-called economic democratization, it has been operating as a pre-ban regulations. It had to put a lot of reasons for exceptions so that the reasonableness of pre-ban regulation can be ensured. Eventually stopping the expansion of large-scale enterprise group with the investment regulations had to be limited. The other word in the enforcement of deconcentration of Economic Power there is no choice but to consider industrial policy considerations. Actually, the abolition of Total Equity Investment Ceiling Rule in 2009 and the prohibition of only new circular equity investment do not mean the accomplishment of Concentration of economic power control purpose, but only deregulation. The deconcentration of economic power by equity investment regulation has its limit. So there needs to be complemented by other post regulatory measures
  • 8.

    Kausalität zwischen Tat und Schaden und Verjährungsfrist

    JANG BYEONGIL | 2015, (69) | pp.265~296 | number of Cited : 2
    Abstract
    Es gibt in Schadensersatzanpruch auf die Staat, den ein Anklagte unter Notmaßnahme von Präsident im Jahr 1978 wegen die ungesetzliche Verhaftung und Haft durch Sicherungspolizei geklagt hat. Ohne den Verhaftungsbrief wurde er verhaftet und in Haft genommen. Seit der Verhaftung war er in 20 Tage ohne den Urteil von Schuld wieder frei geworden, während aber im anderen vergleichendes Fälle die Männer verurteit geworden hatte. Hier gibt es eine Singularität, es ist nennenswert. Hier geht es darum, dass unter den bestimmten bedingungen andere Ergebnis kommt, ob ein Ursache des Schadens in der Regierungshandlungliegt oder ein Ursache des Schadens in der ungesetzliche Verhaftung und Haftung durch den Staatbeamte ist. Das Problem ist ein Fall von eine Kausalität zwischen dem Tat und dem Schaden. Im unserem Fall liegt die Ursache des Schadens nicht in damaligen gesellschaftichen Umstände sondern in ungesetzlichen Verhaftung und Haftung durch den Staatsbeamte. Infolgedessen Regierungshandlung von Präsident, d.h. die Notmaßnahme von Präsident im Jahr 1978 wird nicht zu den Unerlaubten Handlung. Die Entscheidung der Verfassungswidrigkeit über die Notmaßnahme von Präsident im Jahr 1978 durch Verfassungsgericht wird kein Einfluss an dem Schaden des Klägers und auch kein der Verjährungsfrist. Schon beginnt die Verjährungsfrist von dem Zeitpunkunt der ungesetzlichen Verhaftung und Haftung durch den Staatsbeamte. Es ist schon 30 Jahre vorbei. Schließlich ist die Verjährungsbehauptung von der Regieung kein Recht Missbrauch.
  • 9.

    Research on the Effects of the Contingent Fee Agreements in Criminal Cases - The Supreme Court's Full Bench Decision, 2015da200111, on July 23, 2015 -

    Jang Younsoon | 2015, (69) | pp.297~328 | number of Cited : 10
    Abstract
    The Supreme Court's decision that the contingent fee agreements in criminal cases are violations of Article 103 of the Civil Law Code is well understandable in view of the legislative cases of other countries, relevant theories, the roles of lawyers and the general public's view of the law. However, although the Supreme Court did not specifically mention the contingent fee agreements in family cases, it is appropriate that the effects of the contingent fee agreements in family cases be denied the consideration of a secured family system, retention of marriage, and support-related elements in the division of assets. In this case, although the defendant had not realized that the contingent fee agreements in criminal cases were against the social regulations, he did have a perception of the needy circumstances of the plaintiff at least, and of the fact that there was no causal relationship between the fulfillment of the conditions of success and his work, both of which can be considered basic circumstances that are against the social regulations. It can be concluded that the defendant did possess knowledge of Article 103. Therefore, in my opinion, this case should have been retroactively nullified by the application of Article 103. In this case, the decision that the contingent fee agreements in criminal cases are to be nullified will strengthen the basis of trust in the judiciary system. However, in criminal cases where the future effects of past nullification is recognized, the decision regarding the contingent fee agreements is not understandable.
  • 10.