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2017, Vol., No.75

  • 1.

    Problems and improvement measures of legal sentences in supreme court's ruling

    HA TAE YOUNG | 2017, (75) | pp.1~55 | number of Cited : 2
    Abstract
    1. “It is regrettable and sad. Esoteric words and long and stuffy sentences are criticised. It is recommended that long sentences are divided into several ones; sentences need to be ended when subjects are changed; if sentences are more than three lines, a period needs to be placed at the end of the sentence; and deductive structures need to be used. There are problems in Korea's sentencing because of the way in which sentences are structured. The sentences can return to the right grammar when they are re-written with the verbs becoming the center.” - (Ko Jong Ju, legal principles and reality of trials -The way to understand and express lawsuits- Bobmunsa, 2011, 142 pages) 2. “Two principles of making sentencing- Dignified and easy. Simple words and short sentences. Clear and brief key points. No difficulties in understanding when heard verbally. Active sentences are used. Simple positive forms are used. Specific and vivid representations are used and deductive structures are used in argumentation. Grammatically correct and sentences are used in a correct way. Final checks are conducted to see if rulings are complete in themselves. Good rulings have a high degree of completion. Rulings need to be clear and leave no room for misunderstanding. Rulings need to be written in a smooth way. Rulings need to be refined, and they need to be aromatic and beautiful dishes which contain courts' views, national opinions, valuable opinions, and hopes.” - (Ko Jong Ju, legal principles and reality of trials -The way to understand and express lawsuits- Bobmunsa, 2011, summary of 125-233 pages). 3. “Massive sentence chunks need to be changed. Rulings need to be written briefly and clearly. Rulings can be explained even when they are summarized with key points. Important national documents with compelling forces are the writings which persuade parties concerned. Rulings need to be written with verbs as centers. The end of processes need to be clearly reminded for accurate understanding of meanings.” - (Ko Jong Ju, legal principles and reality of trials -The way to understand and express lawsuits- Bobmunsa, 2011, summary of 125-233 pages). 4. “As rulings are practical documents, it is not recommended to use methods or forms which remind us dull writing of academic papers. ① short sentences, ② putting subtitles and numbers for each points, ③ using deductive structures which place conclusions first, ④ properly utilizing diagrams, modifications and notes. After brackets are removed, the intentions are smoothly expressed in sentences. This is the reason why there should be a dictionary of synonyms besides a Korean dictionary of many examples.” - (Ko Jong Ju, legal principles and reality of trials -The way to understand and express lawsuits- Bobmunsa, 2011, summary of 157-160 pages). 5. “Great sentences that remain in history for a long time are easy sentences in many cases. Many people hope to see the rulings of great sentences which would live in lips and hearts of people for a long time. There should be language liberation. A movement to reform legal sentences and writing in legal circles should spread.” - (Ko Jong Ju, legal principles and reality of trials -The way to understand and express lawsuits- Bobmunsa, 2011, summary of 167-169 pages).
  • 2.

    The permissional range of night outdoor meetings - On the review of the legal reform for the Assembly and Demonstration Act -

    Kim, Choul-Joon | 2017, (75) | pp.57~86 | number of Cited : 0
    Abstract
    Article 21 of the Constitution recognizes the freedom of assembly as a fundamental right under the Constitution by specifying the freedom of assembly and prohibition of a permit system. However, because the freedom of assembly appears in the form of a political and collective expression of opinion premised on the relationship with others, it cannot be recognized infinitely. Thus, the temporal, special, and contextual limitations are being discussed. The Constitutional Court has maintained its constitutional decision regarding Article 10 of the Assembly and Demonstration Act and then decided the constitutional nonconformity in 2008, however, after the decision on restricted constitutionality regarding night protests in 2014, has not been able to prepare an alternative legislation until present. As such, this article seeks to review the validity and improvement measures over the revision bill for the Assembly and Demonstration Act that has been proposed by the 19th National Assembly, and to urge the preparation of a proper revision bill for the Assembly and Demonstration Act including concepts such as maintenance of order and public peace from the perspective of freedom of expression under the Constitution in the near future, since the 20th National Assembly has opened.
  • 3.

    A Study on the Requirements of the Urgent Arrest - Supreme Court Decision on October 13, 2016, Case No. 2016Do5814 -

    KIM MIRA | 2017, (75) | pp.87~117 | number of Cited : 1
    Abstract
    A police officer received a report that “a habitual drug criminal takes narcotic drug again right after he was released from the prison”; he went to near the suspect's house and photographed the scene that he is smoking a cigarette; and the police officer called the suspect and asked where he is after he confirmed that he is same as the suspect by the informer, but the suspect lied that he is not in his house, so the police officer forcibly unlocked the locking device, and he urgently arrested the suspect by getting into the house. According to the above case, the supreme court stated that “his identification, residence, and telephone number are already grasped, and the evidence of drug taking would not be perished, and it was enough time given to get an arrest warrant in advance.”, and judged that it did not qualify the condition of the urgent arrest. (Supreme Court Decision on October 13, 2016, Case No. 2016Do5814) However, if integrating the fact that criminal record and relationship on his release from prison of the detail of the report and actual suspect are conformed and the fact that the suspect hid where he is by lying to the police's call, it is appropriate that the reciprocality of suspicion for the arrest is qualified. Also, since he has a lot of same criminal record, the suspect who is considerably knowledgable about the investigation method of drug criminal highly possibly can destroy evidences, and he has a repeated crime so that it is expected to be sentenced heavy penalty, so there is a lot of concern of escape, it is judged that the necessity of arrest is qualified. Since the police officer does not know about the accurate time that the suspect took drug, it is hard to tell that it is unreasonable that there was no enough time to get an arrest warrant. Also, it is difficult to tell that such a judgment is remarkably out of experience rule. Thus, since the urgent arrest of this case qualified the requirement, it may be called an appropriate arrest. Intention of the supreme court that tries to strictly permit the urgent arrest that may possibly violate human rights as much as it can is understandable, but the reasonable decision of investigation institution should not be neglected by highlighting only the human rights of the suspect. In terms of this, the above ruling must be criticized.
  • 4.

    Responsibility Intent and Mistake of Justificatory Facts

    Song, Si Seob | 2017, (75) | pp.119~144 | number of Cited : 0
    Abstract
    In this paper, the concept of responsibility intention could be clarified, which has been ambiguous for a long time. First, in order to clarify the concept of responsible intention, the object of the intentional intentions was examined based on the understanding of the intention’s status in the structure of crime. In the process, we tried to resolve the misunderstanding of the illegality recognition in relation to the systematic status of the conventional illegality. Based on the conceptual reconciliation of these responsible intentions, I suggest to solve the problem , so called ‘Mistake of circumstance related to the Justification’ (eg. putative self- defense) based on connecting the responsibility intent and try to clarify the difference between the ‘rechtsfolgeeinschränkende Schuldtheorie’ and new method. In addition, subjective element of justification could be understand as separate issue from responsibility intent in illegality area.
  • 5.

    Die Culpakompensation des Minderjährigers bei Verkehrsunfall

    Kim, Si-Ho | 2017, (75) | pp.145~171 | number of Cited : 2
    Abstract
    KBGB §396 bestimmt die Culpakompensation und das ist auch für den Schadensersatz durch die unerlaubte Handlungen anwendbar(KBGB §763). Die Culpakompensation vermindert die Schadensersatzbeträge des Schädigers, wenn der Geschädigte wegen der Entstehung- und Vergrößerung des Schadens fahrlässig ist. Es basiert, dass der Schädiger alleinen Ersatz entstandene Schäden wegen des Prinzips von Treu und Glauben nicht gültig ist. Vor allem soll der Schaden billig und gültig für den Schädiger übernimmt werden, wenn der Geschädigte fahrlässig ist. Aus diesem Grund koreanische Rechtsprechung anerkannt die Verantworlichkeit des Geschädigte für mitwirkrnden Verschulden des Drittens, aber ein Umfang der Stelle des Geschädigten ist sehr undeutlich. Die Schadensersatzhaftung des zivilrecht ist im Prinzip für den Geschädigte. Trotzdem ist es die Ausnahme des Selbtverschuldens, dass die Schadensersatzbeträge durch die Fahrlässigkeit eines Drittens vermindert wird. Die Rechtsprechung und herrschende Meinung gerichten, dass der Geschädigte leicher Fahrlässigkeit als normale Fahrlässigkeit im Deliktsrecht. Das wird nicht mit der Absicht des Schadensersatzes übereingestimmen. Das bedeutet, dass der Maßstab des Geschädigten und des Schädigers über die Fahrlässigkeit nicht gleich ist. Ihrer Maßstab muss deshalb als gleich bewertet werden. Die Culpakompensation des Kinders bei Verkehrsunfall ist im Gespräch, wenn die Kinder die zur Erkenntnis der Verantwortlichkeit erforderliche Einsicht haben. Doch ist das Durchschnittsalter 7 oder 8 Jahre alt. Koreanisches Zivilrecht anerkannt die Culpakompensation der Verantwortlichkeit des Geschädigten für mitwirkendes Verschulden des Drittens, ob die Kinder die zur Erkenntnis der Verantwortlichkeit erforderliche Einsicht haben. Also muss die Kinder als 6 oder 7 Jahre alt ausgeschlossen werden. In Korea wie Deutschland spielt es eine große Rolle, wenn es unter 10 Jahre alt Kind als absolute Haftungsunfähigkeit anerkannt werden kann. Die Rechtsprechung in Korea anerkannt, dass die zur Erkenntnis der Verantwortlichkeit erforderliche Einsicht habende kinder durchschinittlich 7 oder 8 Jahre alt sind, Haftungsfähigkeit 12 bis 15 Jahre alt. Deswegen ist es in der Lage, dazwischen die Kinder unter 10 Jahre alt zu schützen.
  • 6.

    A Study on the Site Right of Graveyards through Acquisition by Prescription- Critical Review on Supreme Court Decision 2013 DA 17292 on January 19, 2017 -

    Jang, hung-jin | Kim, Mi-Jeong | 2017, (75) | pp.173~202 | number of Cited : 4
    Abstract
    The site right of graveyards is the real right based on the customary right to use the land owned by the other person to the necessary extent for the purpose of protecting the tomb and to block interruption by the land owner and the third person. So far, the supreme court made a judgement that the site right of graveyards is acquired in the case that a grave is made on the land owned by another owner with the consent of the land owner or in case that a grave is made on the land owned by oneself and the land is transferred to other person without any agreement that the grave will be moved or unearthed. The supreme court decided that the site right of graveyards based on the customary right, which is similar to surface rights, is acquired by prescription even in case that a grave is set up on the land owned by another owner without consent if the grave has been preserved and occupied and given ancestral rites for 20 years in tranquility and publicly and that such site right of graveyards based on the customary right doesn't require registration. However, the this Supreme Court Decision 2013 DA 17292 on January 19, 2017 judged that the site right of graveyards should be retained based on the previous decisions and on legal precedents such as the legal nature of the burial law, the specificity of the burial grounds and realities of the site right of graveyards for the reason that it could not be concluded that the grounds for the existence of the site right of graveyard rights had been lost. However, now, since many years have passed from the time of recognition of the site right of graveyards based on the customary right, the citizens' consciousness about the cultivation of graves and cemetery has changed a lot and people do not think of installing a grave on the land owned by other person for most of them have consciousness of relevant laws. Therefore, it is regrettable that this ruling failed to reflect the change in the whole legal system onto the judgement, which has kept the site right of graves based on customary law only for the reason that 20 years have passed since a grave is installed on the land of another person without permission. As the meaning of the this Supreme Court judgment, it is not desirable to deny the site right of graveyards retroactively for those graveyards that have already established the foundation of the site right of graveyards before the enactment of the burial law, in terms of public confidence and legal stability. However, it is desirable not to acknowledge the site right of graveyards for a grave that has not completed the 20-year prescription period after the establishment of the grave before enforcement of the burial law on January 13, 2001. Otherwise, it does not fit to the principle of equity and has no persuasive power to grant the site right of graveyards to a grave which was installed on January 12, 2001 but the landowner raised the lawsuit for dismantlement of the grave late and not to grant the site right of graveyards to a grave which was installed on January 13, 2001 no matter how long it has passed since its installment. In addition, it is not a desirable direction to acknowledge the existence period of tomb permanently for a grave for which the site right of graveyards is already acquired when considering changes in people's perception regarding the legislative purpose of the burial law and cemetery. Therefore, in the future, it is expected that decisions will turn to the direction which limit the duration of tomb to a certain period through social consensus. Fortunately, in this judgment, the five Supreme Court judges suggested a minority opinion toward customs regarding the site right of graveyards through acquisition of prescription by denying acquisition by prescription for a grave which failed to meet the requirements of prescription before enforcement of the burial law at least at the time of enforcement of the burial law since the confidence in the legally binding power of the customary practice of the previous customs is lost. Is it too much to expect that this ruling will be changed in near future?
  • 7.

    A Critical Review on the Requirement of the Tort of Soil Pollution under the Civil Law - Focused on Supreme Court en banc Decision 2009Da66549 Decided May 19, 2016 -

    KIM SANG HUN | 2017, (75) | pp.203~236 | number of Cited : 6
    Abstract
    Today’s environmental problem is perceived as not the one which can be solved by efforts on the part of a certain individual, organization, or a respective country, but as a task that cannot but be solved by the whole human community. However, unless one infringes on another person’s rights directly, the legal principle under the civil law, which has a hardship in acknowledging the illegality of an act, rendered it somewhat difficult to handle the environmental pollution issue simple. With the perception of such a vulnerable part, the researches based on legislation and case law have continued, such as inquiry into a plan to make causal relationship verification in the environmental pollution suit easier. Notably, the Supreme Court has recently decided to acknowledge the tort liability under the civil law against one who aroused soil pollution on his own land and distributed it by changing its previous position through Supreme Court en banc Decision 2009Da66549 Decided May 19, 2016(hereinafter referred as ‘the Judgment’). As regards to the Judgment like this, in case of soil contamination, such decision results in acknowledgment of the tort liability against the soil pollution source contributor under the civil law limitlessly and permanently, evoking criticism that the ruling has leeway to run counter to the nature of the tort liability in case the legal principle of the civil law is applied to the general tort liability as it is. However, the Judgment has significance in that it realized the purpose of environment preservation, even in the legal relations of the civil law according to the ideal of public welfare judicially, but it also specifically presented a special structure where the tort is committed only after potential losses become real as the legal validity affects even one who is not the party to the contract through the permanence of a harmful act. In other words, the above Judgment not only acknowledges the illegality of the act of distributing the land by arousing contamination on the land of his own but also confirmed their determination that application of the principle of the contract law to the tort could be restricted, and that the tort doesn’t occur only through trade connections because a land contamination contributor, regardless of one’s own land, or the land of other person’s own as of now, also comes to accept liability for the present land owner, other than the party to the contract, who acquired it after the land passed through many hands. Nevertheless, the conclusion by a majority opinion of the Judgment, which acknowledged the tort liability against one who caused contamination on his own land and distributed the contaminated land as established may be regarded as valid, but they should have made it clear that the acknowledgment basis of illegality shall consist in ‘Natur der Sache’ consequent on Article 35, Clause 1 of the Constitution and related regulations of the Environmental Law, through which they should have looked into the aspect of 'Tat' on the land contamination contributor’s landfill and distribution act. Besides, in case of acknowledgment of the permanence of such a harmful act, there can potentially be actual differentials in damage calculation consequent on fluctuations of land prices; therefore, it’s necessary to arrange the distribution plan at a level of practice on the grounds that the basis of illegal acts consists in the value of fair and proper distribution of losses.
  • 8.

    A study on Characteristics of Landscape Benefits on the landscape act in japan

    BYUN WOOJOO | 2017, (75) | pp.237~260 | number of Cited : 0
    Abstract
    In Korea, the Landscape Act was enacted and enforced in 2007, in order to systematically manage and preserve the landscape. And this Act is also a result of the high social interest reflected in the introduction of economic growth and the introduction of local autonomy. However, the legal action to ensure the benefits of landscape should be realized in relation to the rights of the landscape. Landscape Benefits has the characteristics of being forced to change or limit depending on the circumstances surrounding the surroundings. Because these traits of landscape are characteristic of them, It is generally impossible to control the complete control of Landscape Benefits. In relation to this, If the extent of the infringement of the Landscape Benefits is realized, it is problematic to prevent infringement of the act and the remedies. On the other hand, in case of Japan, the Landscape Benefits are separated from the perspective of the view. In particular, the court recognized the Landscape benefits as a benefits and protections of laws and recognized the characteristics as individual profits. Thus, in reviewing the remedy for the Landscape benefits, the understanding of the legal character and discussions about the Landscape benefits in Japan could give us a lot of context in our legislation.
  • 9.

    The Legal Countermeasures of Regulatory Capture in The Environmental Enforcement

    Chen Liang | Mu Tong | 2017, (75) | pp.261~280 | number of Cited : 0
    Abstract
    Regulatory capture is a phenomenon that regulated entity manipulate and dominate regulatory agency to maximize its own interests. It is deviation and dislocation of environmental enforcement system concepts and systems that leads to there is a extensive phenomenon of regulatory capture in the environmental enforcement in China, and this is also the source of our environment is deteriorating, lax enforcement and even law enforcement slack. In order to resolve the regulatory capture of our environmental enforcement fundamentally, two aspects must be constructed to improve China's environmental enforcement system from the theoretical foundation and system.
  • 10.

    A Review of the Possibility of the Protection of Broadcasting Program Format as a literary Work:Application of the Theory of Narrative

    HAN TAE IL | Namkyeong Yeon | 2017, (75) | pp.281~310 | number of Cited : 3
    Abstract
    Given its characteristics, it is not sure that a broadcasting program format is the expression in idea-expression dichotomy. For this reason, whether the format is accepted as a copyrighted work is unclear. So, there was a trial of protecting a broadcasting program format as a compilation work. However, it is related to the protection of its compilation method, and ends up raising the issue as to whether it is an expression. Therefore, this study used the traditional theory of narrative to find whether a broadcasting program format is considered to be a literary work, in the point that a broadcasting program format is a narrative, The application of the theory of narrative to idea-expression dichotomy brings about the following result: According to the theory of narrative, a master plot becomes an idea and an individual plot and a discourse are expressions in the idea-expression dichotomy. When that is applied to a broadcasting format again, its plot seems to be an idea as a master plot from the perspective of popularity, or seems not to be an expression from the perspective of non-finishing by variables like an actor's improvisation. However, in the points that the popular success of a broadcasting program format comes from creativity in familiarity and that digital media are accepted as literary works although their plots are not finished, a broadcasting program format is likely to be accepted as a literary work in the application of the theory of narrative.
  • 11.