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2016, Vol., No.73

  • 1.

    A Comparative Study on the Accrediting Organizations of Law Schools in Korea, USA and Japan

    Lee, Young-Ho | 2016, (73) | pp.1~26 | number of Cited : 2
    Abstract
    This study compares and examines accrediting organizations of legal education, which are supervised by the Korean Law School, the USA Law Education Council and the Japan Bar Association and Legal Research Funds. Furthermore, it has a target to seek more rational and efficient legal education of accreditation standards for the organizations in this article. The main conclusion of this comparison study on law school accreditation organizations within Korea, USA and Japan is as follows. First, regarding the USA Law Education Council, it belongs to the ABA(American Bar Association), but its accreditation standards have independence without any intervention, they have a guarantee independence from the lawyer association of evaluation committee, which is a precondition aiming for standards and rules of procedure for approval itself. Second, the professional committee areas for each need in the development of accreditation standards, need the guarantee professional evaluation members, the guarantee of finance for accreditation standards and the guarantee of fairness of the accreditation decision. The operation of USA professional committee in these areas is a good example. Third, we need to ensure the equitability of the team visiting to evaluate and use the team's fact-finding investigation separately in order to verify for all objections. The USA Law Education Association has introduced this system already, but Japan and Korea have not applied it. Fourth, we need to recruit workers in an executive office at the minimum to support the activities related to the work of accreditation. Finally, the budget has a precondition for the stable operation of the organization of accreditation; the guarantee of expertise of accreditation; and the continuity of accreditation. Businesses like the educational work of Japan Bar Association and Legal Research Funds, legal examination, ability testing for the law are good examples in consideration of the guarantee of finance of Law School Accreditation Association in Korea.
  • 2.

    A Study on Il-Tae Hoh’s Research on ≪Hyeongbeob Daejeon/刑法大全≫

    LEE, KYUNG LYUL | 2016, (73) | pp.27~49 | number of Cited : 0
    Abstract
    Celebrating Professor Il-Tae Hoh’s retirement, this paper conducts a comment, from the modern perspective of nulla poena sine lege, on his studies. He has ambitiously studied ≪Hyeongbeob Daejeon/刑法大全≫, the Great Code of Korean Criminal Law. In particular, his main academic interests were about the function of ≪In-ryul-bi-bu/引律比附≫, the law to analogize rules. Chosun Dynasty was the state of common law, different from the present state of statute law, Korea. For example, GyeongGukDaejeon, Code of the country, was complied according to the doctrine of stare decisis, which makes difference from the present legislation system. So was ≪the Ming Code/大明律≫. It, accordingly, would be undesirable to see the old styles of legislation from the present point of view. This fact and guideline, of course, also apply to the study on ≪In-ryul-bi-bu/引律比附≫. In conclusion, ≪the Ming Code/大明律≫ is the “Recht”, the order approved by the society. “Gesetz” included in ≪Hyeongbeob Daejeon/刑法大全≫, meanwhile, is the compilation of moral laws approved by the preceding kings.
  • 3.

    A Critical Review on the Practice Handling the Criminal Complaints - From the Perspective of Victims’ Rights -

    KIM HYEOK | 2016, (73) | pp.51~81 | number of Cited : 6
    Abstract
    A victim of a crime is entitled to file a criminal complaint and he/she is able to make a statement during the proceedings of the trial of the case involved. A criminal complaint is one of the most aggressive means for a victim to take in order to recover his/her damage in the criminal justice process. Therefore, the discussion in an attempt to deal with the complaints effectively should be conducted within the range that does not violate the rights of crime victims. It is also important to take measures to reduce the burden of the practice while ensuring that the victims participate in the procedure. In this regard, I proposed to introduce the pre-criminal conciliation system as a criminal dispute resolution process to deal with complaints. According to the Crime Victim Protection Act, if deemed necessary for the practical recovery from damage suffered by a crime victim through the fair and amicable settlement of a criminal dispute between a suspect and a crime victim, a public prosecutor may refer the criminal case under his/her investigation to criminal conciliation upon a request of parties or ex officio. If preparing a plan to expand this procedure to the complaint cases received by the police, it will be able to prevent unnecessary waste of investigative resources as well as recover the damages of victims in accordance with the principle of restorative justice.
  • 4.

    The Allowability of the Alternative/Selective Joinder of Parties or Additional Joinder Party, and the Limitation thereon

    황형모 | 2016, (73) | pp.83~118 | number of Cited : 3
    Abstract
    In the process of a lawsuit which started from filling a written complaint, there occurs such an event where the change or addition of not only the claim but also the party (especially the defendant) is required. In case of the preliminary or selective co-litigation, the question arises where the claims can not withstand each other. The courts in the cases view that the alternative or selective co-litigation is established not only where the claims can not withstand each other based on the substantive law but also where they can not withstand based on the procedural law and based upon the facts in the case or the evaluation on the facts. However, in terms of procedural laws, where the claims can not withstand in acknowledging the party’s capacity, it does not mean that the claims do not withstand. There the withstanding should not be allowed because it is against the notion of litigation economy and effectiveness and the change of the precedent case is requested. In case where the claims may not withstand together based upon the facts, the cases acknowledging the withstanding is proper because it is due to the application of the substantive law. However even in such a case where the case acknowledging the facts or acknowledging selective facts allows the alternative selective joint litigation, such litigation may not be initiated abusively where there is dispute over the facts and the liable party may change and the factual situation should be constructed precisely so that the claims may not legally withstand together. Next, though it is the majority view to understand that the courts in the cases did not allow additional participation by acquisition, it is proper to understand that the courts’ position in cases is to allow the same in limited circumstances. Therefore the attorney representing the case does not have to be negative to the application for the participation by acquisition and it is proper to allow the same for the purpose of the litigation economy and one time resolution of the dispute like the majority academic theories. However, it should be viewed as limited to the cases where the obligations (or rights) acquired by the assignee are derived from assignor’s’ rights or obligations which are the subject matters of the litigation or arise subject to the existence of the same.
  • 5.

    A Study on Legal and Historical Background on Vietnam's Accession to the United Nations Convention on Contracts for the International Sale of Goods(1): Focusing on the Adoption and Substance of the Doi Moi policy

    SHIN CHOONG IL | 2016, (73) | pp.119~146 | number of Cited : 1
    Abstract
    Vietnam has acceded to the United Nations Convention on Contracts for the International Sale of Goods in December 2015, and the Convention will become effective as of January 1, 2017. The purpose of this paper is to review the legal and historical background for Vietnam's accession to the Convention, considering that Vietnam still claims to achieve a socialist state as its ultimate political and economic goals. Since the Convention usually applies to the international sale of goods between private parties, the economic system of a contracting state should be based on the market economy supporting the private ownership on the means of production, rights of citizens on business freedom, the existence of private economic sector, etc. Therefore, the legal and historical roots of Vietnam's accession to the Convention today can be found in the Doi Moi policy adopted in 1986 by the 6th National Congress of Communist Party of Vietnam. The fundamental reason for the Party's adoption of Doi Moi policy was severe economic depression. Internal elements such as inefficiencies from extreme socialist economic planning and consecutive failures of the economic policies of the Party were blamed for such economic depression. External elements such as the suspension of economic aid from the Soviet Union and China, and the embargo led by the United States further aggravated Vietnam's economy. The key substance of the Doi Moi policy is to adopt elements of market economy internally, while pursuing Vietnam's integration into the international economy externally. Certain relevant issues would be reserved for a separate paper such as the legalization of the Doi Moi policy, the recent background of Vietnam's accession to the Convention, the meaning of accession to the Convention in the context of the Do Moi policy's extension.
  • 6.

    The Study on the Decent Work of the Occupational Safety and Health Act

    hmhak Cho | 2016, (73) | pp.147~173 | number of Cited : 2
    Abstract
    The main aim of this study is to provide an overview of the humanisation of work. Decent Work has been designated by Humanisation of Work. The aim of this principle of humanisation of work is required to improve the physical, psychological and social conditions of working life. To identify the safety and health protection measures for Worker through the program in relation to Humanisation of Work and Decent Work in Germany and EU. The most effective and durable means of creating a healthy and safe working environment is to eliminate hazards and risk during the design or redesign or work, structures, plant and substances. This is described as Decent work under the EU Strategy Action in the Healthy and Safe to Work. Thus ‘Decent work’ is health and safe work where the hazards and risks created by the work are eliminated or minimised so far as is reasonably practical and where the work design optimises human performance, productivity and job satisfaction.
  • 7.

    Comments on Korean Supreme Court`s Decision regarding the Scope of Application of Himalaya Clause under the Surrendered B/L

    Yang,Seok-Wan | 2016, (73) | pp.175~213 | number of Cited : 1
    Abstract
    On surrender of the bills, no further bill need be produced by the buyer (as consignee) and release is granted. If original bill of lading is surrendered at port of loading, a surrender message can be arranged from carrier or his agent’s office at load port to their counterpart at destination port advising them not to insist for original bill of lading from consignee to release the goods. A shipper of goods, when negotiating a contract of carriage, will be aware that the obligations arising from that contract will rarely be performed personally by the contractual carrier but will be delegated to employees of the carrier or to independent contractors engaged to carry out a particular function, such as stevedores engaged to load or discharge the cargo. Himalaya clause will be placed within the bill of lading or such other transportation contract. By such a device, the carrier or shipper attempts to cover and shield companies or persons it employs to assist in the transportation or loading or unloading of goods, with whatever liability exemptions, limitations, defences it may have with the owner of the goods. The Bill included an express clause stipulating that any servant, agent or independent contractor employed by the carrier should be entitled to the protection of every exemption available to the carrier and that, in respect of this clause, the carrier was contracting not only on his own behalf but also as agent or trustee on behalf of the parties named. Two requirements must be satisfied before such an exception will operate. First, the limitation of liability of liability clause must either expressly or impliedly extend its benefit to the employees seeking to rely on it; and, secondly, such employees must have been performing the very services provided for in the contract between their employer and the customer when the loss incurred. There is, however, one proviso in relation to contracts for the carriage of goods by sea. In such a context the statutory right to enforce a contractual provision is not intended to confer positive rights on a third party, its effect being expressly restricted to enabling a third party to avail himself of an exclusion of limitation of liability provision in such a contract.