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2017, Vol., No.76

  • 1.

    A Study on the Restriction of Freedom of Assembly and Demonstration on the Roads

    So-Yeon Kim | 2017, (76) | pp.1~37 | number of Cited : 2
    Abstract
    Freedom of assembly and demonstration provides a constitutional representation of collective expression. Under representative democracy, freedom of assembly and demonstration functions as a means of realization of personality and reflection of the nation's meaning to the national authority. And today's it is important because it reflects the needs of minorities. In order to effectively achieve the purpose of assembly and demonstration itself, the organizers of assembly and demonstration must be able to freely choose the venue and time of the assembly and demonstration. The venue where assembly and demonstration take place has special implications for the purpose of the assembly and demonstration. So the choice of venue has a special symbolic meaning. The current assembly and demonstration act provides the obligation to declare outdoor assemblies and demonstrations. The Constitution prohibits the prior permission for assemblies and demonstrations. To prevent the prior notification from operating like the prior permission, the prior notification should function as preparatory or proactive to ensure the establishment of free assemblies and the activities of peaceful assemblies. In practice, however, the actual prior notification system is often operated as the prior permission system. Not acknowledging the exception of the prior notification for all outdoor assemblies and demonstrations, it requires a revision of the assembly and demonstration act. The outdoor assemblies and demonstrations can easily conflict with other people's basic rights, and in that case, it is necessary to adjust them. The most frequent issue in the outdoor assemblies and demonstrations is the harmony of the public transportation. However, it should be ruled out that unconditional priority on public transportation is strictly preferred. If the public transportation can only be achieved by the restriction of the outdoor assemblies and demonstrations, the prohibition of the outdoor assemblies and demonstrations is against the principle of proportionality. Also, it should be prohibited to ban the outdoor assemblies and demonstrations for the reason of the omission of notification details. In addition, the issues that can be discussed on the assemblies and demonstrations on the roads are to punish ordinary participants for general obstruction of traffic crime. Violent assemblies and demonstrations are not guaranteed by freedom of assembly and demonstration. Thus, if the outdoor assemblies and demonstrations become violent, it may be reasonable to punish those involved in the criminal justice system. However we have a problem with the fact that the Supreme Court is determined to constitute a general obstruction of traffic crime for violations of assembly and demonstration act without judging the elements of a crime. It has an infringement of freedom of assembly and demonstration in the wake of the fact that participation in The outdoor assemblies and demonstrations is not a basic exercise, but a crime.
  • 2.

    Concept of relevancy to duty under The Improper Solicitation and Graft Act

    Park, Sang-Heum | 2017, (76) | pp.39~73 | number of Cited : 7
    Abstract
    Criminal bribery has a limitation in eradicating corruption of public officials because bribery crime requires relevancy to duty and Quid pro quo. Considering that the purpose of legislative acts to overcome this is securing the fairness of job performance through the prohibition of money laundering, the notion of relevancy to duty is greater than the bribery crime, It indicates the need to be applied. If we look at the case of 「Bill on the prevention of Unjust Solicitations and Conflicts of Interest」, which the Referral Protection Act refers to as a legislative example, there is a great deal of suggestion about the scope of job relevance. In the Sun-Diamond judgment, the bribery or illegality cases were not applied only to the possibility of affecting unspecified behavior, thus limiting the role of illegal cases. The Improper Solicitation and Graft Act should apply the concept of relevancy to duty broadly so as not to take such a train. However, when we look at the form and structure of The Improper Solicitation and Graft Act, we take a “negative Grenzziehung”(passive deduction form and exclude the bestowal from legitimate rights) in Article 8 (3) 3 of the Act. Or more. In addition, when looking at the structure of Article 8 (2) of the Act explicitly stating job relevance and Article 8 (3) (2) of the Act for the exceptional reason, The concept of relevancy to duty is interpreted more broadly than bribery because it is necessary to provide money within the scope of facilitate performance of duties or for social relationships as well as to cover the scope of the value. In other words, The Improper Solicitation and Graft Act, it is necessary to move toward recognizing comprehensive relevency to duty even if there is no intention to influence specific acts, case relationships, or specific acts.
  • 3.

    Characteristics of Japanese Organ Transplant Act

    SONG YOUNGMIN | 2017, (76) | pp.75~98 | number of Cited : 2
    Abstract
    This thesis examined the problems of Japanese Transplant Act before revision and revisional account and main contents of Revised Japanese Transplant Act in 2009. The main contents of Revised Japanese Transplant Act in 2009 are as follows. ① The premise that organ harvesting took place for transplant in definition of body of the brain dead in Revised Transplant Act Clause 6.2 was deleted. ② Organ harvesting was practicable by the consent of the bereaved although there is no expression of will about organ donation and determining brain death by his/her own written consent in Revised Transplant Act Clause 6.1 and 6.3. ③ The expression of will about priority of the bereaved for organ donation was admitted by Revised Transplant Act Clause 6.2. ④ The central and local government should be active in public relations of transplant medicine and spread of knowledge by Revised Transplant Act Clause 17.2. ⑤ The government should take measures to prevent organ donation of abused child by newly legislated Additional Clause 5. From among these Revised Japanese Transplant Act, the problem of preventing organ transplant of abused child would make many suggestions to operate Transplant Act in Korea.
  • 4.

    A Study on the Problems and Improvement Plan of Housing Cooperatives in Housing Law

    kang seog jeom | 2017, (76) | pp.99~133 | number of Cited : 0
    Abstract
    Currently, the association of local housing unions is being held autonomously without supervision and supervision of the union when recruiting union members for accreditation purposes, The competent authority is not able to survey the conduct of any member of the union prior to the establishment of the union prior to the designation of the injured and the civil affairs authorities and Those who try to join the union are also more likely to exploit objective and accurate information, thereby increasing the damages that have been abused. The combination of the union members and the union of the cooperative members of the union, and the combination of the cooperative members of the union, including the union of the union members, and the feasibility of the cooperative membership plan, such as the Land Use Assistance Committee and the Land Use Planning and Planning Plan, are submitted to the Internet to enhance the transparency of the membership process. Meanwhile, the housing union is responsible for obtaining more than 95 percent of the housing ownership of the residential area, resulting in a lack of funds to land ownership and increased financial burden on workers due to financial difficulties and increased financial costs. Thus, it will be necessary to mitigate the approval requirements for obtaining approval for approval of the project plan by obtaining a license of more than 95 % of the housing area of the residential construction site, not less than 95 % of the housing construction area of the housing construction project. About 70 percent of the Korean people live in apartments, which are estimated to be approximately 632 million (approximately 20 million pyeong) in the end of 2015, and the importance of remodeling apartment remodeling is insufficient. To facilitate the smooth implementation of the apartment remodeling, the remodeling fund should be activated by establishing the support scope of the apartment, logistics and district offices by installing the remodeling fund. Currently, the site is secured to the site of the housing union project, and the union joins the union as advertised as if it were exaggerated or false, as it is more than 50 percent of the population. If the business owner shows a sign or advertisement of a house, he/she shall submit it to the Mayor of the Mayor, Gun, and District Office. and When signing a housing supply contract, inform the prospective resident about the copy plan and If a copy is not submitted or submitted, it shall be reinforced by the imposition of fines of 5 millions or exaggerated advertising to facilitate investigation of the false and exaggerated advertisements associated with the housing supply. Also, residents are suffering from housing defects due to the limitations of resident residents, who have limited qualifications before the end of the final use inspection. Thus, the project approval authority is the Presidential Decree related to the quality of the Apartment Houses in excess of what apartment housing, robust and substantive and prevent conflicts in advance Examination Quality in Apartment Housing in order to promote the construction of houses and samples to run to establish a team should bridge the difference between the tenant house. Finally, if the transition to a local housing cooperative is carried out in the area of redevelopment, it shall be amended to release the zone of readjustment if the requirement for cancellation of the transition requirement is agreed upon by the Commission to permit the conversion of the zone to the approval of the union or the application for approval of the union.
  • 5.

    Soft law at the crossroad between international law and international politics: On the effect of the UN General Assembly’s ‘Uniting for Peace’ resolution under the law of the treaties

    Kim, Hyun-Jung | Kim, So-Yeon | 2017, (76) | pp.135~165 | number of Cited : 0
    Abstract PDF
    This paper aims to explore a role of soft law situated at the intersection between international law and international politics. For an interdisciplinary study between law and politics, particular attention is to be paid to the effect of the UN General Assembly’s resolutions as an important example of soft law. These resolutions are political instruments without legally binding force; however, they may have normative implications on state behavior and hard law. Therefore, this paper examines values of the General Assembly’s ‘Uniting for Peace’ resolution (A/RES/377(V)) under the law of the treaties, one of the most traditional fields of international law. In particular, the values of the resolution are explored in relation to the interpretation of the UN Charter. Can this instrument be considered as subsequent agreement or practice under Article 31(3) of the Vienna Convention of Law of the Treaties, or as supplementary means of interpretation under Article 32 of the Convention? This paper deals with this question by analyzing the scope of the General Assembly’s ‘secondary’ responsibility for the maintenance of international peace and security and conditions for exercising such responsibility under the resolution 377(V).
  • 6.

    Uniform definition of the Concept of the Consumer and the Business for Cross-border consumer contracts - Focus on International Contract Laws, EU Directives and the laws of the European countries -

    Hyejin Song | 2017, (76) | pp.167~199 | number of Cited : 2
    Abstract
    A Consumer contract is a contract between a consumer and a business. To protect consumer in the consumer contract, it has to be preceded about definition to the concept of consumers to be protected. In response, the concept of a business, one party of a consumer contract, should also be established. For consumer protection, International Contract Laws(CISG, PICC, PECL, DCFR etc.), EU Directives and the laws of the European countries(hereinafter International Contract Laws etc.) have established the concept of consumer and business. The aim of this study is to find out the characteristics of definition of a consumer and a business in International Contract Laws etc. and to comparatively analyze them Korean consumer law. The result of this study is like this: there are three differences in the definition of the concept of a consumer and a business between International Contract Laws etc. und Korean consumer law. First, in International Contract Laws etc., a consumer is only natural person while in Korean consumer law can be legal person. Korean consumer law contain special protection for small business and similar enterprises. Second, in International Contract Laws etc., a “consumer” means any natural person who is acting primarily for purposes which are not related to his or her trade, business or profession(negative definition). However, in Korean consumer law, a consumer means those who use the goods and services provided by business for their daily lives as consumers or for their production activities(positive definition), who are designated by Presidential Decree(the comsumer of the politic meaning). Third, in some cases the natural or legal person could be acting both within and outside a trade, business or profession. In such cases, International Contract Laws etc. determein whether a consumer or a business is based on the primary purpose. But in Korean consumer law, there is no standard rule for mixed cases. A comparative legal review with International Contract Laws etc. is useful for the Uniform definition of the Concept of the Consumer and the Business for Cross-border consumer contracts. The harmonization with International Contract Laws etc. should strive for a higher level of consumer protection.
  • 7.

    Legal Background and Problem on Enlargement of Fixed book prices

    Cho Jang Woo | 2017, (76) | pp.202~235 | number of Cited : 3
    Abstract
    The book price regulation under the Publication Law, the so called fixed book price system is one of resale price maintenances that controls the rights of distributers or stores that can determine the selling price for end consumers by fixing the price determined by the manufacturer. The regulation was first enforced in February, 2003 in the name of Publication and Printing Promotion Act, and after two amendments, it was expanded to Publishing Industry Promotion Act and lasted for 3 years since November 21, 2014. However, it failed to accomplish its purpose to protect publishing industry and small & medium book stores and only brought harm upon consumers’ interests. The regulation received bad reviews pointing out that it was in fact a failure, and as for the future legislation, there is a sharp conflict among the people advocating transition to Complete Book Price Regulation or abolition of the fixed book price system itself. In this context, in regard to the fixed book price system which is the subject under debate about the actions to be taken (neutralization, maintenance or abolition under Clause 2, Article 27 of the Publication Law), this study identified the legislation background of the Publication Law controlling the fixed book price system and the problems of individual provisions, and proposed improvement areas. To do this, the study first looked into the trend of the theory about the fixed book price system, identified the system’s limitations and the issues to be solved, considered the legal implications and purposes of the fixed book price system, looked into the history of the fixed book price system and presented implications by comparing the current legislation of other countries and that of Korea. Also, this study looked into what triggered introduction of the fixed book price in Korea and the legislation progress, identified the issues, reviewed the trend of the changes in attribution of interests through analysis of statistical indicator after expanded enforcement of the fixed book price system and identified improvement area in the provisions of the Publication Law containing the expanded fixed book price system. Through the above, specific issues were identified and improvement areas were proposed including distinct characteristics of books which need to be protected through price control, relations with the provisions associated with literary productions under Monopoly Regulation and Fair Trade Act after deletion of the provision linked to the same act specified in Clause 3, Article 22 of the revised Publication Law, validity of unlimited period of the fixed price system, appropriateness of applying the fixed price system to national and local libraries, validity of a third party’s discount, effectiveness of imposition of fine and different book supply rates between book stores. Reflecting on the progress of the fixed book price system, it may be anticipated that in the future, many bills will be passed based on the opinions mainly presented by the groups of people and the competent Ministry directly benefiting from the legislation. However, when controlling contracts by restricting freedom of price determination, not only legitimacy of the purpose and fitness & purposefulness of the means but also supplementary nature, consequential efficiency and ripple effect must be considered.
  • 8.

    The unconstitutionality of case payment system of medical aid hemodialysis patients

    Shin, Tae-Seop | Chung Mi Young | 2017, (76) | pp.237~268 | number of Cited : 2
    Abstract
    To control rising costs in treating medical aid patients who get hemodialysis treatment, the korea government has begun to apply a case payment system to this population since 2001, which set a fixed price for a hemodialysis treatment regardless of type of institutions. There was cost reduction in medical aid program after the case payment system. However, the degree of satisfaction of both medical aid hemodialysis patients and physicians about a case payment system for hemodialysis treatment were low. There is no precedent study on the unconstitutionality of case payment system of medical aid hemodialysis patients. This study was conducted to improve payment system for hemodialysis patients enrolled in medical aid program, and through this study, appropriate quality of treatment would be achieved and medical aid hemodialysis patients' quality of life would be improved finally.
  • 9.

    General theories of law and state

    Kim,Hyo-Jeon | 2017, (76) | pp.267~532 | number of Cited : 0