Korean | English

pISSN : 1225-3405 / eISSN : 2713-5470

2020 KCI Impact Factor : 0.89
Home > Explore Content > All Issues > Article List

2018, Vol., No.79

  • 1.

    A Review on Constitutional Issues of the Employment Restriction System Imposed on Sex Offenders

    Gyeongsu Yeo | 2018, (79) | pp.1~25 | number of Cited : 5
    Abstract
    The article discusses the Korea initiatives in order to prevent convicted sex offenders from having access to children. The purpose of this thesis is to point out and propose ways to improve the problems in the restriction of employment as a criminal punishment. Persons convicted of violent offences and sexual abuse of children should be prevented from working with children There has been little research done regarding restriction on employment which has been introduced into the Act on the Protection of Children and Juveniles against Sexual Abuse. Sex offenders are restrained from being employed on child and youth educational institutions, of which include medical profession and home-schooling. The purpose of this research is to identify the problems of current restriction on employment derived from the lack of court’s decision, and to propose possible improvements. This study aims at improving that system by analyzing the constitutional logics which Constitutional Court has suggested in the cases. The purpose of the Act on the Protection of Children and Juveniles against Sexual Abuse is to prescribe special cases concerning punishment for committing sex offenses against children or juveniles and the procedures therefor, prepare procedures for relieving and assisting victimized children and juveniles, and systematically manage sex offenders against children or juveniles, thereby protecting them against sexual abuse and assisting them to become sound members of society. This study tries to review the restriction of employment as a criminal punishment by constitutional court.
  • 2.

    Die Gegenwartsgesellschaft und der Lebenshochschätzungsgedanke

    Song Seung Hyun | 2018, (79) | pp.27~65 | number of Cited : 5
    Abstract
    Die Erlärung des Lebenshochschätzungsgedankens kann die Lehre sein, was wir geläufig sind. Aber wir sind lebend zufrieden, daß solche Lehre nur weiß. Die Gesellschaft entwickelt sich gewußt, weil solchen Gedanke wirklich nicht leicht einhält. Darum behandelt der Mensch das Lebewesen das Mittel oder das Objekt, was das Lebewesen die Tendenz stark vernachlässigt. Aber der Mensch ist nur überlegen, als der Mensch außerdem das Lebewesen die Seinsform ist, der allen Organismen sind gleich, als das eine Mitglied der Natur der alle Organismen ein sind。 Aber, als zum Mensch In-der-Welt-sein ist, ist die Seinsform überlegen, was die Stellung der Aufnahme und des Erkenntnisessubjekts des Lebenshochschätzungsgedankens zugeteilt werden können. D.h., als das Leben das Hochachten und das Verteidigen das Subjekt sind, können das Leben die Daseinsberechtigung zugleich der Zweck sein, was das Wohl das Verteidigen die Pflicht gewesen ist. Also werden der Mensch nicht nur das Selbst, sondern auch das Wohl der anderen Organismen nicht verletzt, was die Pflicht leisten sollen. Aber die allen Organismen müssen das Leben zum Erhalten notgedrungen das Leben der Organismen annehmen. Dieses kann zur Gerechtigkeit urteilen, was zum Lebenshochschätzungsgedanken nicht entgegenstehen kann. Und, daß zur Welt absolut ist, kann kein Sein sein. So braucht zu ansehen, was für eine Bedeutung ist vom Hegen die Erklärung des Lebenshochschätzungsgedankens zur Gegenwartsgesellschaft.
  • 3.

    A Study on the improvement Direction for the Current North Korean Human Rights Act

    Song, In-Ho | 2018, (79) | pp.67~94 | number of Cited : 4
    Abstract
    After the debate over the past 11 years, the North Korean Human Rights Act was enacted in 2016, but two years later, the North Korean Human Rights Foundation, a core organization, has not even been launched yet. In this paper, we tried to examine the improvement direction for the current North Korean Human Rights Act. First of all, North Korean Human Rights Act should be revised according to the concept of universal human rights and the constitutional spirit expressed in the Preamble and Articles 3 and 4 of the Constitution that protect the North Korean as the South Korean. From this point of view, the improvement of human rights in North Korea are not only the responsibility of the state but also the responsibility of local governments. The responsibility of local government should be stated in the North Korean Human Rights Act. In addition, Because Article 2 (2) of the North Korean Human Rights Act might be misunderstood as if efforts to improve human rights in North Korea might be contradicted to endeavor to establish peace on the Korean Peninsula should be deleted. In addition, Article 3 of the North Korean Human Rights Act should expand the definition of North Korean residents to include North Korean defectors. In order to minimize direct political influence and conflict, and to ensure neutrality and professionalism, it is necessary to revise the composition of the directors of the North Korean Human Rights Foundation, which is currently recommended by the same number of political party and qualifications need to be stated in the law. Since the purpose of the legislature is to prepare for the legal settlement of the transitional justice in the North Korean Human Rights, it is appropriate to have a leading investigative body under the Ministry of Justice at least for specific cases of human rights violations. Education for the general public, especially youth, on the situation of human rights in North Korea should be added to the work of the North Korean Human Rights Foundation in order to promote mutual understanding and integration between North and South Korean residents after reunification and not to repeat the history of North Korean human rights violations. In order for North Korea's human rights abuses to be repeated on the Korean Peninsula again, it is imperative to face and remember the human rights issue in North Korea. It should not be forgotten that this is the mission and responsibility of the Republic of Korea, which has maintained and developed the spirit of ‘Democracy’ and ‘Human dignity’ for the past 70 years.
  • 4.

    A Study on the Regulation on Trial Run of Autonomous Vehicle

    BAEK KYOUNGHEE | 2018, (79) | pp.95~123 | number of Cited : 7
    Abstract
    Autonomous vehicles are a collection of advanced information and communication technologies that represent the fourth industrial revolution. Until the premise that full automation technology of autonomous vehicle is done without errors, it is necessary to continue to correct and supplement the error through trial run on the public road. Therefore, it is necessary to examine the procedural requirements for the trial driving of an autonomous driving car and how the responsibility of the autonomous driving car for a traffic accident occurring during the test driving is regulated by the legal system of Republic of Korea. The purpose of this paper is to examine the legal system of the United States, which has detailed regulations on test driving of autonomous vehicles in order to strategically support commercialization of autonomous vehicles. The final goal through the trial driving of an autonomous driving car is a fully autonomous driving stage controlled only by artificial intelligence without a human driver. Through this, it is possible to prevent the possibility of the accident caused by the human driver, thereby achieving the safe road operation, thereby preventing the outbreak of the traffic accident in advance. However, the current situation is that there is a high concern about the total exclusion of human drivers because of the outbreak of accidents or personal accidents during the test driving of autonomous vehicles. Therefore, it is necessary to take into consideration the procedural requirements and the responsibility of the test run of autonomous vehicles in accordance with the reality of Republic of Korea.
  • 5.

    The Problems and the Ways of Improvement of the Rights of the Suspect in the Procedure of Investigation in China

    Park, Ji-Seong | 2018, (79) | pp.126~150 | number of Cited : 0
    Abstract
    The current Chinese criminal law stipulates respect for and guarantee for human rights through two revisions, and enhances the rights of suspects in terms of the law to exclude illegal evidence, to stipulate the principle of banning confession, and to supplement the legal system. However, it is criticized that the rights of the accused are still excessively limited, such as the disapproval of right to remain silent and the restriction of the right to contact lawyers. Experts say that it is insufficient to protect human rights in the world because the Constitution or the Criminal Procedure Act do not include any explicit provision on the right to refuse statements, and only partially recognize the right to the help of a lawyer. China has the right to the defense of the accused by using the right to consult with the lawyer, the right to defend itself, the right to review, change, and modify the suspect's newspaper, the right to apply for asylum, and the language and letters of its people. However, some problems are found in the investigation procedures, such as a lack of control over the investigation, a lack of a legal system, an inability to reject statements, and prolonged imprisonment by the investigative agencies. While considering China’s current state of national development, social systems and cultural heritage, it is a matter of the Chinese criminal procedure law to improve the rights of suspects that meet international standards. Preparing legal and institutional devices to prevent suspects’ rights from being violated by the investigative agencies is a task that can no longer be avoided.
  • 6.

    A Scope of Return of The Claim for the substitute for Excess Profits

    Bae, Sung Ho | 2018, (79) | pp.151~179 | number of Cited : 1
    Abstract
    The right to claim the object can be found in the sense that it is the correction of the distribution of property value based on the ideology of equity. If the benefit is not available in the bond relationship, the debtor will be free from the bond law restraint and avoid the obligation to pay. As a result, the debtor obtains the right to claim the object of benefit or the object of benefit. These would have belonged to the creditor if they had fulfilled their original benefits, so handing it over to the creditor is in accordance with the ideology of equity. Given that the insurance premiums are the object of the benefit that is replaced by the purpose of the accidental fire, it can not be denied that it is equitable to repay the insurance premiums to the creditor who has paid the benefit risk. It is a contradiction in itself to deny the objectivity of the insurance because the seller concludes the insurance contract for the fire damage for the benefit object because the seller bears the risk of loss of the benefit object and fulfills the duty of payment. Whether it will be covered by insurance or claim claims is considered because of the fact that the claim for the purpose of the right to claim the right to adjust the distribution of the value of the property that is not actually legitimate and the claim for the claim is caused by the accident. The right to claim is a separate system from the right to claim the return of unfair advantage. There is no inevitable reason to coincide with the scope of return of unfair advantage. According to the principle of the damages law or the principle of the unfair advantage law, it is true that even if there is profit that exceeds the damage or loss caused, it can not be claimed. However, it is unreasonable to apply this principle to the claimant claim that claims instead of the implementation of the benefit. Since the right to claim is based on the principle of the object, it is reasonable to deliver the entire profit obtained to the creditor without asking the reason for the liability of the debtor in the legal effect as long as the claim is recognized.
  • 7.

    Gift Tax due to Nonconsent Divorce and Division of Property Agreement - Supreme Court Decision 2016du58901 decided September, 2017 -

    PARK KEUNWOONG | 2018, (79) | pp.181~207 | number of Cited : 2
    Abstract
    Korean Supreme Court - 2016du58901 - clarified whether it is lawful or not to impose a Gift Tax on the basis of Substance over Form Rule of tax law in connection with the issue of Property Division between couples maintaining de Facto Marriage even after divorce. The Supreme Court maintained the previous Judgement that the Effectiveness of Nonconsent Divorce is in Principle valid, unless there are exceptional Grounds. Therefore, as a Rule, it is assumed that the Division of Property on a valid divorce is not subject to Gift Tax Imposition. However in some cases - Division of Property is merely a means for avoiding Taxes such as Inheritance Tax and Donation tax, which is so excessive that it can not be said that division of such property is reasonable and the substance has special circumstances worth gifts and evaluation - Gift Tax may be imposed. But in such cases, only a Portion exceeding a considerable extent may be subject to Gift Tax. In light of the special Nature of Division of Property - Liquidation and Dependency -, even if we make Judgments based on economic Realities, Division of Property should not be evaluated by Gift unless there are Circumstances that have been done beyond a considerable Range.
  • 8.

    A Study on the Necessity and Revitalization of the Mandatory Electronic Voting System

    Park Eunyoung | 2018, (79) | pp.209~227 | number of Cited : 2
    Abstract
    Due to the complexity of the corporate governance, there is an issue on the restriction of the voting right of stockholders. Consequently, a general meeting of stockholders becomes nominal, so that this might merely represent the corporate management and some of the major shareholders. In order to improve this circumstances and guarantee shareholders to have the right to participate in management, there is a suggestion of an electronic voting system. According to the amendment of the capital market law in 2013, the abolition of the shadow voting was completed at the end of the 2017. Therefore, for the sake of forming a quorum of a general meeting of stockholders, it is necessary to take the measure for the revitalization of a general meeting. The electronic voting makes stockholders exercise their vote without any restriction of time and space. This also makes a corporate sure of invigoration and effectiveness of a general meeting of stockholders. However, effectiveness of electronic voting system is not yet sufficient now, even though several years have passed since the introduction of the system in the commercial law. The discussion on the amendment of mandatory electronic voting system is ongoing. In spite of mandatory electronic voting, there is some doubt about revitalization of a general meeting, though. Moreover, on-line by its nature is likely to make it difficult to confirm identification, and there might be an exercise of vote by unconfirmed rumor. For this reason, there is a possibility that the mandatory electronic voting is not only placing additional pressures on businesses, but also reducing efficiency of it. However, the introduction of mandatory electronic voting system is of any practical use for conversion of awareness of some domestic individual investors who are only concentrating on a short-term profit margin as well as revitalization of positive domestic investment. The introduction of this system might be compulsory unless otherwise compensated in advance for the technical and legal issues by means of the electronic voting system.
  • 9.

    Issues with the Recognition and Enforcement of Investment Arbitration Awards: As Revealed Through the Yukos Arbitration

    Min Kyu Lee | 2018, (79) | pp.229~255 | number of Cited : 0
    Abstract
    An investment arbitration raises questions unique to it compared to ordinary commercial arbitration cases. For instance, an investor who has prevailed in an investment arbitration procedure must first overcome a preliminary hurdle in the issue of sovereign immunity in order to actually receive compensation. In this situation, what is relevant is the notion of sovereign immunity as it is understood under the domestic laws of each state. However, even if an investor overcomes the issue of sovereign immunity through one of several methods which in theory could be relied upon, the losing state could then argue that the recognition and enforcement of the concerned investment arbitration award must be refused in accordance with certain grounds provided by the arbitral rules or domestic laws applicable to each investment arbitration award. Additionally, where the New York Convention is applicable, the losing state could seek to annul the arbitral award based on one of the grounds provided by the New York Convention. One example which accurately shows this problem is the so-called “Yukos Arbitration” regarding the now defunct corporation which was once a Russian oil giant. With respect to this case, on April 20, 2016, the District Court of the Hague annulled the award rendered by the tribunal of the Yukos Arbitration that ordered the Russian Federation to pay $50 billion to foreign investors of Yukos. The decision by the District Court of the Hague explicitly reveals this issue with the recognition and enforcement of investment arbitration awards. Indeed, the investors of the concerned arbitration proceeding have yet to receive anything at all from the Russian Federation despite having received an arbitral award for such an astronomical amount back in 2014. Here, the decision of the District Court of the Hague has added further uncertainty to the future and outlook of the concerned arbitral award. At the same time, however, under the New York Convention an arbitral award does not automatically lose its effectiveness in another jurisdiction simply because it has been annulled at its place of arbitration. Rather, the courts of other states are given discretion over whether to recognize and enforce the award in accordance with the domestic laws of the concerned state. As a matter of fact, the investors of the Yukos Arbitration continue to seek the recognition and enforcement of the arbitral award at hand in jurisdictions other than the Netherlands. As such, one cannot help but become curious about how the decision of the District Court of the Hague will be received elsewhere. After briefly introducing and analyzing both the Yukos Arbitration and the decision of the District Court of the Hague, as a final note this paper questions fundamentally the process of recognizing and enforcing investment arbitration awards under the New York Convention.
  • 10.

    Developments in Commercial Arbitration in Vietnam: an Analysis of the Legal Framework and Specific Issues

    Le, Net | SHIN CHOONG IL | 2018, (79) | pp.257~286 | number of Cited : 1
    Abstract
    The purpose of this paper is to review the current situation of commercial arbitration in Vietnam, as well as the legislative framework and certain key provisions of the relevant laws. Vietnam has made efforts to induce foreign investments since it undertook the Doi Moi policy in 1986, and Korea has made the largest cumulative investment in Vietnam. With the increasing foreign investments, disputes between foreign investors and local partners are also on the rise. Under these circumstances, more foreign investors and legal practitioners are considering commercial arbitration an effective and efficient method to resolve disputes. There are a number of commercial arbitration centers in Vietnam, and 155 cases were handled at Vietnam International Arbitration Center in 2016. As for the legislative framework, the basic law regulating arbitration proceedings in Vietnam is the Law on Commercial Arbitration (54-2010-QH12). This law regulates commercial arbitration competence, arbitration forms, arbitration institutions and arbitrators, arbitration proceedings, rights and obligations of the parties, competence of courts over arbitration, and enforcement of arbitral awards. In 2014, the Supreme People's Court issued the Resolution (01-2014-NQ-HDTP) to guide the implementation of certain provisions of the law. The resolution governs the authorities and proceedings of the court regarding arbitration, as well as registration of ad hoc arbitral awards. The Supreme People's Court also issued the Official Letter (246-TANDTC-KT) to provide guidance with regard to the application of the New York Convention. With respect to the enforcement of arbitral award, the Law on Commercial Arbitration and the Law on Enforcement of Civil Judgments (26-2008-QH12) regulate the enforcement of domestic arbitral awards, while the New York Convention and Code of Civil Procedure (92-2015-QH13) govern the recognition and enforcement of foreign arbitral awards in Vietnam. In addition to the current circumstances and legal framework for arbitration in Vietnam, this paper reviews certain key issues under the Law on Commercial Arbitration, such as arbitration agreements, arbitrators, arbitration proceedings, evidence, remedies, and the jurisdiction of courts with respect to arbitration. It is expected that this paper will help investors considering dispute resolution understand the basic issues with respect to arbitration in Vietnam.
  • 11.

    The Conflicts and Resolutions between International Trade Law and the Law of the Sea

    Eunah Seo | 2018, (79) | pp.287~309 | number of Cited : 1
    Abstract
    International Trade Law and the Law of the Sea belong to International Public Law. In every areas, relevant contracting parties as legislatures try to make each different rule, and incompatible rules could be created, consequently. If one of the dispute parties invokes the incompatible rules and justify its violated measures, conflicts of rules may arise. Specifically, this is the circumstance that the measure violating WTO rules can be justified by the provisions under the law of the sea. Although there are no relevant accurate cases engaged in Korea, it is possible for WTO members including Korea to take the measures of trade sanction for the sake of preserving maritime resources. Therefore, discussion of this matter would be relevant and meaningful. In order to resolve conflicts of rules, explicit rules are provided into the agreements for intrinsic conflicts of rules as well as extrinsic conflicts of them, when relevant states contract the agreements. Article 311 of the law of the sea is a representative provision which expressly states the principle of lex posterior derogat legi priori. The provision of the priority of the 1982 agreement rather than the 1958 agreement is applied to corresponding objectives, so that this might not be considered the explicit rule for resolving conflicts of the incompatible rules. This provision, after all, is based by pacta tertiis nec nocent nec prosunt, providing an exclusion from application to the third parties who are likely to be influenced by the 1982 agreement. In case of no statement of explicit rules for resolving above conflicts of rules, lex posterior principle as general international law can be applied regardless of the explicit provisions. This principle has the intent which prevents former laws from affecting the latter laws, due to the latter might be regarded as enhanced and developed provisions. Article 30 of the Vienna Convention states this principle and this is the discussion whether this article can be applied or not. However, it is inappropriate to apply this rule, because of differences of the parties between international trade law and the law of the sea. The principle of Lex specialis derogat legi generali has no particular features compared to the lex posterior principle. These principles merely have roles in making somewhat orders in complicated international law for resolving conflicts of rules. There is another issue of applicable law, in spite of indirect discussion of this theme. The issue of substantial jurisdiction of the international tribunals can be relevant on it. The tribunal of the law of the sea allows rules which are not the ones of the law of the sea, under the article 293 of the agreement. On the other hand, the substantial jurisdiction of WTO dispute settlement body is restricted to the WTO covered agreements. However, the dispute parties are able to invoke the rules irrespective of WTO rules, so there are no differences of both tribunals with respect to substantial jurisdictions. Even though the case which can be justified by non-WTO rules such as some of the rules of the law of the sea, are brought to the WTO panel, it is unfortunate that there is no rule of resolving conflicts of the rules. Some cases such as Swordfish case and MOX Plant case had such conflict issues, but there was no explicit resolution stated. These cases just resulted in negotiation by relevant dispute parties. This means the relevant tribunals did not suggest the priority of the conflicting rules. This is of course comprehensible, since it is too complicated to resolve by means of the Vienna Convention. However, this might be abrupt conclusion, but now is the time to deviated from theoretical and political methods as negotiation of the dispute parties. I make bold to think that expanding exceptions of Article 20 of GATT and allowing the arbitrary and discriminatory measures which have intent to preserve maritime resources. Despite possible exploitation, it would be reasonable to amend the rules of international trade laws to support preservation of marine resources which are irrecoverable when they are damaged.
  • 12.