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2018, Vol., No.78

  • 1.

    A Study on the Discussion of the Amendment of the Juvenile Act - Focussing on the Reinforcement of Juvenile Protection Ideology -

    Park, Ho-hyun | KIM JONG HO | 2018, (78) | pp.1~26 | number of Cited : 6
    Abstract
    The purpose of the Juvenile Act. is to work for necessary measures like protective custody in order for behavior correction and environmental adjustment of juvenile who are antisocial and to help them grow soundly by giving special measures as criminal punishment. Indeed, that aims at their comeback to society through education and improvement based on protective ideology. However, various juvenile crimes happened such as assault cases of Cheonan middle school girls, Asan middle school girls, Gangneung high school girls and Busan high school girls in 2017, thus those becomes serious social problems. Therefore some people say that strict punishment of juvenile crimes is needed by lowing the age of juvenile on the Juvenile Act. because nowadays juvenile crimes resemble with adult crimes in ferocity. The Juvenile Act. is recognized as an important ideology to national relation on juvenile protectionism. Therefore, juvenile should be understood as unmature physically and mentally, and the nation ought to strive to make them grow as sound citizen through education and welfare rather than punishment. The problem to solve is formation of an issue to boost requirement of lowering the age of juvenile and of strict punishment whenever juvenile crime happens. Accordingly this study will seek problems that strict punishment of juvenile justice system causes through the amendment bill of the Juvenile Act. in 2017, and the direction to revise the Act. based on the found problems.
  • 2.

    Study on Allowed Reasons and Time Limits for Pregnancy Abortion

    Park, Nam-Mee | 2018, (78) | pp.27~57 | number of Cited : 7
    Abstract
    By considering both the purpose of an abortion law and the right to life of a fetus, it can not be denied the positive effect of an abortion law. Therefore, the exceptional exemption regulation from the penalty for abortion prohibited by the current criminal law should be revised reasonably. In revising the exceptionally permitted reasons for the abortion as stipulated in Article 14 of the Maternal and Child Health Act, minors and unmarried-mothers should be the first consideration. Mental patients should also be considered because the likelihood of child offenses is very high when a person with a mental illness is a parent. Some argue that social and economic circumstances should be taken into consideration for allowing abortion. But. As such, there is concern that expanding the scope of abortion according to social and economic circumstances may eventually lead to an unlimited expansion. And the expansion of abortion tolerance causes more demand for the national welfare budget. However, considering the current welfare budget of the country, it seems difficult to expand the scope of abortion for social and economic reasons. Next, we examined the time limit for abortion. At present, according to the time limit of artificial abortion operation prescribed in Article 15 (1) of the Enforcement Decree of the Maternal and Child Health Act, the artificial abortion performed according to Article 14 of the Maternal and Child Health Law is allowed only to those who are within 24 weeks of pregnancy. In this regard, it is argued that the selection of abortion should be made possible only in the early pregnancy ages, 10 to 12 weeks by respecting women's self-determination. First, before reviewing the time limit for abortion, it is necessary to orientate the terms of pregnancy time in order to unify the meanings of the contents to be discussed. We mark the time of pregnancy as the gestational age calcurated from the last menstrual period, the fetal age counted since fertilization, or the fetal age reckoned after implantation. Therefore, the unification of the terms for pregnancy time should be solved first. When a person is pregnant, the fertilized egg formed by fertilization develops continuously until birth, through the embryo in which the major vital organs develop and through the fetus in which most of the organs grow. In other words, at the end of the 8th week after fertilization (10th week of pregnancy), the embryo will have all the basically necessary organs for human beings. Thus, as mainly discussed in this paper, allowing abortion at 12 weeks (10 weeks after fertilization or 8 weeks after fertilization) is problematic in that it apparently kills life. Therefore, it is necessary to reconsider the current position of abortion.
  • 3.

    Zeitliche Grenzen polizeirechtlicher Verantwortlichkeit

    Son, Jae-Young | 2018, (78) | pp.59~86 | number of Cited : 0
    Abstract
    Der Beitrag befasst sich mit der Frage nach dem Einfluß des Zeitablaufs auf die polizeirechtliche Verantwortlichkeit. Bislang fand die Frage, inwieweit zeitliche Grenzen der polizeirechtlichen Verantwortlichkeit bestehen, wenig Beachtung. Diskussionsbedürftig ist, inwieweit die polizeirechtliche Verantwortlichkeit dem Gedanken der Verjährung zugänglich ist. Die polizeirechtliche Verantwortlichkeit verjährt prinzipiell nicht. Die Polizeipflicht des Handlungs- und Zustandstörers unterliegt also keiner Verjährung; vielmehr ist die Heranziehung des Störers durch die Polizei zeitlich unbegrenzt möglich (Ewigkeitshaftung). Teilweise wird die Ansicht vertreten, nach Ablauf der Verjährung könne ein bestimmter Störer nicht mehr als solcher in Anspruch genommen werden, sondern aber nur noch als Nichtstörer im polizeilichen Notstand. Diese Ansicht ist abzulehnen, weil die Inanspruchnahme als Nichtstörer an einschränkende Voraussetzungen gebunden ist, so dass jedenfalls die Effektivität der Gefahrenabwehr eingeschränkt wird. Zudem übersieht sie, dass eine solche Inanspruchnahme mit einer Entschädigungspflicht gekoppelt ist. Kostenersatzansprüche der Polizeibehörde für Maßnahmen der Gefahrenabwehr nach Ersatzvornahme können der Verjährung unterliegen. Hier sind keine grundsätzliche Bedenken ersichtlich. Es besteht Einigkeit, daß vermögensrechtliche Ansprüche des öffentlichen Rechts der Verjährung zugänglich sind. Eine Kostenentlastung des Störers nach erfolgter Gefahrenabwehr beeinträchtigt die Sicherheitsaufgabe nicht mehr.
  • 4.

    A study on the distinction between reporting system and similar concepts in administrative law

    YUN KIJUNG | 2018, (78) | pp.87~118 | number of Cited : 1
    Abstract
    It is desirable that theoretical legal terms be used in accordance with legal or practical terms, but the reality is different. Especially in the field of administrative law, the use of ambiguous terms is more serious. This also applies to the use of terminology in report, notice and submission. This study was designed as a starting point of problem solving based on the use of ambiguous and inconsistent terminology. To do this, I analyzed the current laws and found out the differences and then presented the classification criteria. As a result, the notice is used not only when an individual gives an administrative office, but also when an administrative office do an individual and an administrative office to an administrative office. therefore, it should be clearly distinguished from the report that the direction is limited to what the individual do to the administrative office. The report is a public law act of a individual, the report is different from the notice in terms of the direction of the act in that the report is directed toward the administrative office. The submission is used as a regulatory means in a weak sense that is separate from the report itself. However, depending on its nature, submission may be interpreted as a report. In the case of submission, there is no case that an administrative agency do to individual in the direction of conduct. The report and application is made on the basis of the fact that, when it comes to registration as a means of regulating entry, the application and report are the beginning of the legal action, and that the claim is made on the basis of the next procedure, both the report and the application is made on the basis of the principle of the claim. On the other hand, a report can only be deemed to have implemented its reporting obligations if it is legitimate, but in the case of an application, it can be determined whether the purpose is achieved based on the responses from the administration. Report abuse is also mandatory, and it is usually regarded that the duty of the Administration to respond to an administrative office does not exist, so it is different from the duty of the Administration to make a report as a difference between the two parties.
  • 5.

    The Legal and Political Plans for a Solution of Air Pollution in Northeast Asia : Focusing on Arranging an Environmental Cooperation System in Northeast Asia through a Relationship between EU Law and National Laws of Member States

    LEE SANG-MAN | 2018, (78) | pp.119~151 | number of Cited : 3
    Abstract
    According to the use of fossil fuel and to a rise in an internal- combustion engine caused by industrialization, the concentration of fine dust in the atmosphere gets higher when spring and winter with low atmospheric pressure have come. By the way, the fine dust is very small, thereby getting inside the body, resulting in leading to inflammation and becoming a cause for several diseases. As a result, WHO classified fine dust as the group 1 carcinogenic substance. Northeast Asian regions, which are in the westerlies, are recently increased the concentration of fine dust due to the acceleration of economic growth in China. It moves to adjacent countries through the movements in atmospheric pressure, weather and convection current and is mixed with the fine dust, which occurs in each country, thereby bringing about a serious social issue such as further threatening people's life and healthy living. In this way, the problem of air pollution caused by fine dust is not the one that can be solved by simply enforcing legal system and policy in one country because of the specially environmental requirement. In other words, even the issue of air pollution in Northeast Asia is impossible without an international effort for positively reducing air pollution along with the attention in 3 countries of South Korea, China and Japan. Yet, the three countries in South Korea, China and Japan have failed to present effective measures so far even though being said to have made international cooperation for solving air pollution problem. Accordingly, to solve the air pollution problem of Northeast Asia, the aim was to elicit implications through a comparison method in a case of EU as the regional community, which had solved a social issue through utilizing the consolidated legislation with seeking the public good, and to suggest a plan for arranging an environmental cooperation system in Northeast Asia based on this.
  • 6.

    A legal Study on the Major Issue in the Laws licensed Investigator system

    JEOM IN LEE | 2018, (78) | pp.153~208 | number of Cited : 8
    Abstract
    The need to utilize licensed detective system as a system to safeguard the lives and property of individuals from such social side effects and to meet these demands from various criminal acts other than public power is highly posed. This licensed detective system is based on the principle of beneficiary burden, and the demand for the detective service to collect information and conduct a survey on the level of private sector is continuously increasing. For illegal actors, the investigative agency focuses on criminal cases in which social attention is concentrated, and neglects the violation of legal interests of individuals who have little influence on public opinion. On these issues, people are distrustful of investigative institutions and criminals are not being reduced. It is therefore permissible for a person who has been infringed to a limited extent to exercise relief directly by himself. In order to apply this trend, all of the 34 OECD countries except Korea are introducing licensed detective system. In Korea, too, the necessity of introducing licensed detective system has been raised, and legislative proposals have been submitted to the National Assembly for the introduction of licensed detective system through the efforts of national legislators and experts from various fields.
  • 7.

    The Study on the Burden of Proof and the Liability for Damage Compensation on Sudden Unintended Acceleration of Automobile

    Hyojin Youn | 2018, (78) | pp.209~241 | number of Cited : 0
    Abstract
    “Product Liability Law” takes a different position from the illegal conducting responsibility under the “Civil Code” by stipulating the liability for damages due to defects of manufactured goods as unrelictable liability, but the responsibility for proving the “defect” And compensation for damages, there were many problems in product liability lawsuits such as a sudden acceleration estimate accident of a car not having any special provision. Through this legislation, adding “estimate of defect” through the introduction of a punitive damages compensation system under the Product Liability Law and relaxing the proving responsibility has long worked on solving the problem, but there are still remaining problems. In principle, the proof of “defect of automobile” which causes a Sudden Unintended Acceleration(SUA) is on the plaintiffs side, and in order to solve substantial inequality due to the uneven distribution of evidence, this is proved through transformation, alleviation and alleviation of proving responsibility, If you are asked for liability for damages due to the accreditation of the defect by estimation without investigating the substantive truth, it can be difficult to convince virtually in the position of the defendant who is responsible. Also, in this situation, many defendants are in a situation of joint and multiple responsibility. In order to overcome these limitations, the introduction of the evidence disclosure system prior to the filing of an action under the civil procedure, the environment where the plaintiffs side and the defendant can engage in battle under equal circumstances in the evidence We would like to propose introduction of a proportional liability system that can not induce participation and can induce voluntary and proactive participation of defendants' side who is more passive.
  • 8.

    A few thoughts on the change in response to expanding the scope of small claims

    KIM DO HOON | 2018, (78) | pp.243~274 | number of Cited : 2
    Abstract
    Due to the amendment of the rules of Small Claims, the threshold amount for small claims has been significantly raised from 20 million won to 30 million won. This expansion of the scope of small claims has problems with necessity and appropriateness. Even when compared with the amount before the amendment, the range is broader than the foreign legislation and small cases account for 70% of civil cases. Therefore, it is difficult to recognize the necessity of expanding the scope. Even if it recognizes the need for social change, the limitation of the rights of the parties is not complemented by the fact that the standard amount is raised uniformly without supplementing or changing the additional system. Therefore, it is difficult to recognize the appropriateness of expanding the scope. If the scope of small claims is defined as ‘uniform’ according to ‘amount’, the appropriate amount is 10 million won. However, it is reasonable to improve the system through complementary measures, considering that it is also possible to cause unnecessary confusion by reducing the already enlarged standards uniformly, and that the diversity of standards and securing the appropriateness can be ensured through further supplementation. If the scope of small claims is defined as ‘uniform’ according to ‘amount’, it is reasonable to prescribe it as law, but it may be reasonable to set as Supreme Court rules when securing diversity to supplement system. And the key factor for securing the appropriateness is the reflection of the selective factor, and various changes can be attempted by adding the classification by the amount and the event. This kind of supplementation can solve various problems due to the enlargement of the scope. And changes in the scope of small claims may lead to a variety of additional problems. Therefore, it is not desirable to change the system unilaterally and to complement the problems that arise afterwards. It is reasonable to take a pilot project in a specific court for a certain period of time based on established standards, and to adopt a way to set up problems and alternatives and expand them. That is, it can reduce the impact of change.
  • 9.

    Study on the right to claim for expenses incurred upon extension of construction period in the construction contract general conditions - Focusing on comparison and examination with creditor delay -

    TAEKWAN KIM | 2018, (78) | pp.275~305 | number of Cited : 2
    Abstract
    If the construction period has increased beyond the original schedule without the responsibility of the contractor, it will be a question of who will bear the increased cost during that period. in the case of a government-funded work ordered by the country etc, Article 23 of the Construction Contract General Condition allows the extension of the construction period and the request for an increase in costs accompanying it. In the absence of the norm of these contracts, instead of being able to solve these disputes with the civil code system, you can make use of the creditor delay system. As a result of comparing and examining the requirements and effects of the cost contract and delay of creditors due to extension of the term construction term to general construction conditions, the following conclusion was obtained. First, it was able to know that a considerable part of supervision of the cost claim accompanying the extension of the construction period due to the extension of the construction period and the delay due to the creditor delayed the requirement, and the situation of the profit was not similar. Second, although the scope of application for expenses accompanying the extension of the construction period is substantial and the scope of application is expanded from delinquency of creditors especially due to force majeure reason, due to the characteristics of force majeure, its scope of application is extremely restricted, It seems that there is little effectiveness, depending on policy reasons of force majeure reasons, only extension of the construction period is permitted, not even an additional cost claim is approved. Third, cost claims accompanying the extension of the construction period require procedural requirements and are applied very strictly in practice, but they do not require procedural requirements for creditor delay. Fourth, although a considerable portion of supervision is made of the cost claim accompanying the extension of the construction period and the cost due to the creditor delay, the general administrative expenses and the profits are expenses according to the delay of the creditors It is hard to be recognized. Fifth, the cost claim due to the creditor delay can be a way to bypass the procedural requirements of the cost claim accompanying the extension of the construction period.
  • 10.

    A Study on the Effect of Rescission of Shipbuilding Contract

    Nam, Do Hyun | 2018, (78) | pp.307~342 | number of Cited : 1
    Abstract
    Korea's shipbuilding industry, which had grown rapidly from the 1970s to the mid-2000s, suffered the serious downturn by the aftermath of the 2008 global financial crisis. Especially, the dispute related to the rescission of existing shipbuilding contracts has increased due to the depression of the world shipbuilding and shipping industry. However, the Commercial Act of Korea does not have specific provisions on the shipbuilding contract, except the provision for mortgages of ship under construction, and most shipbuilding contracts are written using international standard contract forms such as SAJ Form, and specific condition or items for the individual contract are added as amendments. Therefore, regarding the shipbuilding contract or the rescission of the shipbuilding contract, the detail provision of the shipbuilding contact is analysed the interpretation of the international standard contract form used as the basic form at the conclusion of the contract between the parties, and the decision of the international arbitration or related cases of the English law. In this paper, first, the definition, legal nature, and important contents of shipbuilding contract will be examined in detail , and then causes and effect of rescission of shipbuilding contact both by buyer and builder are reviewed based on the definition or condition generally accepted in international standard contract forms and cases of the English law in order to provide the deeper understanding for the future negotiations on shipbuilding contracts and reasonable resolution to potential disputes on contracts.
  • 11.

    Vietnamese Laws on Business Cooperation Contract

    SHIN CHOONG IL | 2018, (78) | pp.343~358 | number of Cited : 0
    Abstract
    The purpose of this paper is to introduce the provisions of Vietnamese laws relevant to the Business Cooperation Contract (“BCC”). Vietnamese investment laws provide BCC as one of the various investment forms in Vietnam, and the most prominent feature of BCC is that the parties to it carry out business in Vietnam without establishment of economic organizations. However, it should be noted that BCC where a foreign investor is one of the parties is a form of foreign investment in Vietnam that requires Investment Registration Certificate to be issued by investment registration agency. A foreign party to BCC could establish an operating office in Vietnam, and such office could conduct business activities under the limited scope to implement BCC. If disputes arise from BCC, a foreign party could resolve such disputes by litigation at Vietnamese courts, as well as foreign or domestic arbitration. Since Vietnam is a member of the New York Convention, foreign arbitral awards are in principle implemented in Vietnam, and domestic arbitral awards are implemented the same as domestic court decisions. It is expected that this paper will help Korean companies considering investment in Vietnam understand the laws governing BCC.
  • 12.

    A Study on Reciprocity in Treaty Relations - With Special Reference to the U. S. Implementation of the ‘Vienna Convention on Consular Relations 1963’ -

    LEE JIN-KYU | 2018, (78) | pp.359~376 | number of Cited : 0
    Abstract
    The reciprocity, serving as a principle of international law, plays an important role in the implementation of international courts' rulings, including ICJ and the treaty obligations, as an agreement between States in the international legal system. It is necessary for all States to recognize the seriousness of the long-term consequences of such violations of their obligations on their own. There are several reasons why each State should faithfully fulfil its obligations in the VCCR and other consular related treaties, one of which is based on reciprocity. Each State should make a comparable effort to foreigners in its own territory in order to ensure that its nationals abroad receive proper treatment. Without such a measure, the foreign government will have no incentive to comply with such obligations. Effective diplomatic and consular relations are essential elements in maintaining a stable relationship between States. Without this effective diplomatic and consular relationship, the political and economic relations between the States cannot be developed properly. Consequently, the proper observance of the VCCR and other consular related treaties becomes an essential issue in the formation of good diplomatic relations. It is clear that States that have signed and duly ratified the VCCR should comply with their obligations under it. To ensure that such obligations under the VCCR are faithfully carried out and complied with, governments must ensure that the provisions laid down in the VCCR and other consular related treaties are implemented. Also, governments need to work with foreign governments to establish procedures to increase the levels of implementation of the VCCR and other related treaties. Finally, law enforcement agencies of each State should take various effective actions to ensure that their obligations to consular notice are properly fulfilled.
  • 13.

    Limitations of Multilateral Approach for Establishing E-Commerce Trade Law

    HYUNHO KWON | 2018, (78) | pp.377~404 | number of Cited : 9
    Abstract
    This article mainly dealt with lots of multilateral approaches to the formulation and limitation of electronic commerce law in the WTO. In case of multilateral trading system, this paper not only concentrated on some trade legal issues in the GATT system, but also examined the problems of application for trade in services law. For these context, this article firstly focused on the on-going WTO negotiations, but could not find a realistic solution for leading to a conclusion of any multilateral legal system. Although for the time being it would be rather difficult to have a decision, WTO Members need to make more active efforts to solve this legal issues within the multilateral system considering legal stability and predictability. However, it’s really difficult to fill the gap in the position of e-commerce trade law between U.S. and EU. Finally, this article showed the limitation of multilateral trading system, and evaluated a relative concreteness and possibilities of establishment of e-commerce trade law leaded by the U.S., a dominant power actor in multilateral and bilateral trade circumstance. As a result, negotiations in the WTO, including electronic commerce, are likely to be developed through multilateral negotiations among countries with similar interests in accordance with the United States. At the same time, the system for multilateral trade liberalization through the WTO seems to be the time to pursue a new paradigm of e-commerce and trade itself, with the preparation of new negotiation methods and changes.
  • 14.

    Problems and Improvements of 『The Act on the Prevention and Countermeasures against Violence in Schools』

    Ha, Yun Su | 2018, (78) | pp.405~429 | number of Cited : 8
    Abstract
    On 29 January 2004, 『the Act on the Prevention and Countermeasures Against Violence in Schools』 has been enacted and it has been amended 20 times in order to effectively cope with school violence, which has become a serious social problem. However, school violence continues to increase, rather than decrease. The reason for this is that as parents and students became the subject of education, their rights and requirements are legally guaranteed, while teachers have lost the authority to guide students' life, and only their responsibilities are increased. This paper analyzes the actual condition and the current situation of school violence, and reviews the cases of developed countries. In particular, the paper has found out the problems of “Student Violence Autonomy Committee” in comparing the establishment, processing procedure, structure and operation from cases of foreign legislation. First of all, the researcher recommends giving school principals authority to manage minor school violence cases. School violence processing procedures are evolving into a complicated mechanism since some parents of victim students are filing lawsuits even though it can be solved through reconciliation. Teachers in charge are getting confused by the legal disputes and the confusion of the school is increasing, and the education rights of the school are damaged as well as the students' rights of education is being infringed. This paper pursues to transfer “Student Violence Autonomy Committees” out from the school except for minor matters. This is not only for the normalization of the school education, but also for matters such as the lawsuits of parents that should be dealt outside of the school.
  • 15.

    A brief study on the legal system of punitive damages

    Lee, Jin-Seong | 2018, (78) | pp.431~455 | number of Cited : 11
    Abstract
    The Old Law, such as the HammurabI Code of around 1750, the Hitite Code of around 1400 B.C. and the Hebrey Code of Capillary Law, generally defined several times the cost of multiple losses of victims. In modern law punitive damages were developed by the Common Law of England. The United Kingdom enacted the first law in 1275 to decide the compensation of damage to the number of ships. There were two precedent cases (Huckle v. Money case, Wilkes v. Wood case) in which punitive damages were explicitly accepted in the law in 1763, and this was also confirmed in 1766. Later in 1964, upon the judgment of the Rookes v. Barnard case, the system was established as it is today. The punitive damages are currently being done mostly in countries that have a background in the English, American and Canada laws. Continental legal countries, which consider the differentiation of civil and criminal responsibility the most significant achievement, have been protesting the introduction of the punitive damages compensation system under the special system. But as the punitive damages system punished and restrained illegal actors with high intent and malice, it was inevitable to introduce the system in an era when the net function of maintaining social order was emphasized. More recently, Continental legal countries have also admitted to the punitive damages or compensation system, which is a feature of the punitive damage compensation scheme under individual laws (food safety, protection of consumer rights, etc.). However, since the punitive damages compensation system, a special system of the English and American fields, does not take into consideration the Korean legal system, the legal nature of punitive damages is becoming an issue. For many reasons, including the flaws in the current damage compensation system, we feel the necessity of a punitive damage compensation system. But to establish a proper legal system for Korea, we should realize the establishment of a reasonable system with many analyses and studies on punitive damages. The text discusses the institutional experiences of Britain, the United States, and China, and then the gradual introduction of the system into Korea via experience cases abroad.