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2017, Vol., No.77

  • 1.

    The Problem and improvement plan of Judicial Challenge System

    Hyunwook Cho | 2017, (77) | pp.1~30 | number of Cited : 1
    Abstract
    Judicial challenge is almost the only means by which litigants can object to the court's decision, which is considered unfair. Therefore, the low quotation rate can increase the distrust of the judiciary. Since the enactment of the Criminal Procedure Act of 1954, the challenge system has been almost indifferent even though it has not been revised once. The reasons for the low quotation rate of judicial challenge are as follows: First, difficulty of judgment due to abstraction of evasive reason. Second, the problem of provisional regulation. Third, the problem of ensure effectiveness. To solve these problems, it is suggested that establishment of an independent committee called “challenge appeal trial committee”, actively regulating through the typification of reason for challenge, active use of evasion, reduction of adaption regulation and introduction of levy monetary penalties. To restore trust of the judicial system, it is expected that the judicial exclusion and challenge system will be improved in the future.
  • 2.

    Principle of trust and good faith as a primary one of civil laws - focused on applying it in Civil Procedure

    Lee Hye Jin | 2017, (77) | pp.33~77 | number of Cited : 2
    Abstract
    The principle of trust and good faith(hereinafter “the principle”) is that the exercise of rights and the performance of duties shall be in accordance with the principle of trust and good faith. The origin of the principle can be found in Roman law, which was first prescribed in French Civil Act as a modern private law, and after that, it was introduced to Japanese and Korean Civil Acts via German and Swiss Civil Acts. Since the introduction of the principle in civil act, it has expanded its domain not only in contract law, but also in commercial laws, labor laws, tax laws and administrative laws, etc. The principle was stipulated in Civil Procedure Act of 1990 revision for the first time. But before the 1990 revision, the court had applied it in many cases, and now we can see many examples. There can be characterized by four types applying it in civil procedure, which are wrongful formation of litigation conditions, estoppel in litigation, lapse and abuse of the right to bring an action. Of course, distinguishing each type is not clear and one case can be covered by several categories. The court sometimes applies or excludes the principle considering circumstances combined to similar-looking cases. In addition, it is not easy to distinguish the principle of civil procedure from that of substantive act. In this paper, the reason why the principle has been prescribed in Civil Procedure Act notwithstanding the existing stipulation of Civil Act and differences between procedural and substantive ones, are treated. In addition, by analyzing and categorizing the concrete cases which are appling the principle, the characteristic which cases the court applied the principle is presented. Thus, I hope, this paper will give you a guideline whether to apply the principle to related cases in courts.
  • 3.

    Discussion on the practice of the revocation law suit over fraudulent transfer and the theory of void

    kang hyelim | 2017, (77) | pp.79~124 | number of Cited : 5
    Abstract
    With regard to the validity of the creditor's right to revoke, the Supreme Court has adopted for a long time the theory of relative void, which means that any fraudulent transfer is void only between the plaintiff (the creditor) and the defendant (the transferee or the subsequent transferee), and still valid among the others, i.e., the debtor, the other creditors who have not participated in the revocation suit. The majority of scholars agree with the aforementioned ruling of the Supreme Court. Once the fraudulent transfer has been revoked, the creditor may get reimbursed through the compulsory execution process on the retrieved property from the transferee to the debtor, according to Civil Execution Act. The original property shall be put under the name of the debtor in order to commence the compulsory execution on the property. Meanwhile, the theory of relative void has lack explanation on how the original property may be retrieved under the name of the debtor because the debtor's fraudulent transfer is still valid in relations to the debtor and the others. Under the theory of relative void, in case that the assignment of claim is revoked as a fraudulent transfer, it might be blocked getting reimbursement by the creditor even though he or she would win the revocation suit because the assignment of claim (the revoked transfer) is still valid between the debtor and the transferee, so the debtor cannot have the monetary claim against a third party, that means the creditor cannot have any object to seize to get reimbursement. For the sake of the effectiveness of the revocation suit, in the aforementioned case, the Supreme Court has held that the creditor may seize the debtor's monetary claim against a third party in spite of the logical contradiction with the theory of relative void. The Supreme Court Decision 2002Da33068 rendered on September 24, 2002 ruled that it was NOT allowed to seize the debtor's monetary claim against a third (depository) due to the theory of relative void in the case where, as restoration followed by revocation, the right to demand for distribution against a third (depository) shall be assigned from the transferee to the debtor through the compulsory execution against claims. Instead of the complusory execution against claims, the Supreme Court ruled that the creditors may get reimbursed through demanding additional distribution. If adhere to the theory of relative void, the conclusion of 2002Da33068 seems logical, but it would be more desirable if the legal ground of additional distribution which might be applied to the aforementioned case in 2002Da33068 would be created in the Civil Execution Act. Furthermore, in 2002Da33068 the Supreme Court ruled that it IS allowed to seize the debtor's surplus claim against the depository, and the transferee (mortgagee) cannot demand the distribution as the creditor having the claim for preferential payment) because the transfer between the debtor and the transfee has been revoked, which, I would like to point out, are logically inconsistent with the theory of relative valid.
  • 4.

    The consolidation of bases in international law for minority protection:With emphasis on the organic interpretation of international law

    Jungwon Park | 2017, (77) | pp.125~158 | number of Cited : 1
    Abstract
    This article attempts to consolidate bases in international law for the effective protection of persons belonging to ethnic, linguistic or religious minority groups in their state of residence. For this purpose, it tries to draw international rules and principles as well as rights for protection of such minorities, with the goal of offering fundamental bases for minority protection in international law. This type of academic approach seems necessary and urgent, in that international law documents regarding ethnic minority protection have been scattered, vague and often insufficient in their scope and range. Basically, minorities in an international law sense refer to persons who belong to ethnic, religious or linguistic minority groups with strong subjective beliefs and determination to maintain and promote their own cultural identities in their state of residence. This article argues that bases in international law for effective protection of such minorities may be found in the existence of equality rights, the right to nationality, the right to cultural identities and the participatory rights (or political rights) of minorities. The important point is that all these rights or normative bases under international law for minority protection have been interlinked, thereby contributing to effective minority protection in a holistic sense. The right to equality or the principle of equality in the sense of substantive equality may be invoked extensively so that it can cover every field of social life for the persons belonging to such minority groups in their state of residence. This means eventually that they are entitled to ‘substantive’ equal protection in their state of residence. Moreover, a new understanding of the concept of nationality in international law, which has given emphasis to the genuine link between natural persons and their state of residence, may contribute to consolidation of the protection of minority groups in their state of residence in the context of the right to dominant and effective nationality in international law. The right to cultural identities for ethnic, linguistic or religious minorities is also very comprehensive in its scope, given that the concept of ‘culture’ may be applied very widely. At the same time, the right to cultural identities may be secured more effectively through the guarantee of participatory rights for minorities. This is because, if their access to diverse public-issue areas affecting their cultural identities in their state of residence were not guaranteed in a substantive way, their right to cultural identities would ultimately be rendered empty and meaningless. In particular, the right to self-determination, which is a fundamentally critical principle of international law, may provide a more solid normative basis for the ‘political rights’ of persons belonging to such minorities. Such political rights of ethnic, linguistic or religious minorities could be made more evident and effective with an emphasis on the aim of democracy and the internal aspect of self-determination in contemporary international law. It is true, however, that bases in international law for minority protection still seem insufficient and inherently limited in many ways, including the unsatisfactory level of concrete policy implementation and enforcement mechanisms found in many states. The nonexistence of a universal treaty for minority protection at the UN level attests to this limitation of minority protection clearly. Nevertheless, further scholarly attempts to consolidate and elaborate the bases in international law for effective minority protection should continue to be made.
  • 5.

    Whether countertrade in defense offset transactions requires a government export license

    Song, Kwan-Ho | 2017, (77) | pp.159~186 | number of Cited : 0
    Abstract
    Offset refers to provisions to international defense contracts that oblige an exporter of weapons or services to compensate a purchasing country through activities such as technology and knowledge transfer or granting to the importing country rights to locally manufacture and export weapon components. The issue is whether defense articles that are subject to the export license requirement under the Defense Acquisition Program Act can be exempted from such requirement and thereby exported without other restrictions, if they can qualify as countertrade products in defense offsets. Prior to formalizing offset arrangements, the Administrator of the Defense Acquisition Program Administration will examine and address questions such as whether the applicable defense articles are eligible for export, whether they can be exported to the country with offset obligations and whether Korean contractor participants in offset agreements are qualified to export such defense articles or defense services. If the export of the defense articles is deemed to be appropriate and legal under the Korean local law and produce significant benefits that enhance Korea’s national interests, the Administrator of the Defense Acquisition Program Administration will agree to and execute the Offset Memorandum of Agreement with the counterparties in offset transactions. The review of offset contracts by the Administrator of the Defense Acquisition Program Administration and the subsequent execution of the Offset Memorandum of Agreement must be interpreted to support the conclusion that the Korean government indeed approves the export of the defense articles by the Korean contractor and permits such trade, even if no explicit license or approval has been provided. This conclusion is indeed very reasonable because it is the Administrator of the Defense Acquisition Program Administration who provides export licenses under conventional commercial trades and who actually negotiates and executes the Offset Memorandum of Agreement. Therefore, it is unreasonable to impose extra export license or permit requirements on defense articles exporters in offset contracts or punish the Korean contractors for exporting without prior government approvals because 1) doing so would be equal to nullifying the difference between export controls of defense equipment and materials and offset arrangements in defense trade, 2) doing so would constitute unnecessary, repetitive administrative hurdles and 3) doing so would deviate from export control systems, which are meant to impose minimum requirements as trade restriction. The Korean contractors in offset transactions currently suffer from the regulatory ambiguity and fear potential criminal liabilities from engaging in export activities. Therefore, it is imperative for a legislation to be enacted to clarify that no export license or approval is required as long as the Administrator of the Defense Acquisition Program Administration has approved and signed the Offset Memorandum of Agreement.
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