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2018, Vol., No.80

  • 1.

    Installation plan of High-ranking Officials’ Corruption Investigation Agency for the people

    Kim, Byung-Soo | 2018, (80) | pp.1~38 | number of Cited : 6
    The corruption and corruption of public officials is a chronic illness that hampers the development of Korean society. Although the prosecutors have powerful powers, they reveals limits to eradicating structural corruption of high-ranking officials. Therefore, it is necessary to establish High-ranking Officials’ Corruption Investigation Agency(HOCIA) that can independently investigate and prosecute corruption crime. HOCIA should be assured independence from the outside. The president of the former and the current president should be included in the investigations. The size of HOCIA is suitable for 150 people including 30 special prosecutors and 120 special investigators. HOCIA must have both investigative and prosecution rights. The case investigated by HOCIA must be prosecuted. The case investigated by HOCIA should be judged in necessary participatory trials. Police and Prosecutor should investigate the crimes committed by members of HOCIA. The prosecutor and the judge who intentionally distorted law must be punished for law distortion crime.
  • 2.

    The municipal police in France, Japan and United states and the comparative review

    Jusung YOO | 2018, (80) | pp.39~78 | number of Cited : 8
    The police system is a historical, political, and socio-cultural fruit of a nation. The debate on the introduction of the municipal police system in the Republic of Korea based on the National Police System began with the introduction of the American police system based on the strictly decentralized municipal police system under the US military in 1945-1948. After a long discussion, in 2006, the “participatory government” has introduced the municipal police groups which is organized and operated based on the “Special Law for the Establishment of Jeju Special Self-Governing Province and the Creation of Free International City”. Since the introduction of the Jeju municipal Police in recent decades, it works as the police assistance having no effect on the distribution of police rights, resulting in waste of financial resources due to redundant office work with the national police, Which is the only criticism of the 'pattern-only municipal police. ‘In the Government MOON’, as a plan of realization of national sovereignty, it promulgated the implementation of the municipal police system again. In recent years, the “Decentralization Committee” announced plans to introduce a muncipal police system and to implement the municipal police system by 2020. This paper study the French, American and Japanese police which not is not only representative of the diversity of police systems, but also have historically influenced the formation of our police system. We will understand the objective status of our police through comparative legal review with the foreign police system and look for the future direction of municipal police in Korea.
  • 3.

    The Expanded Debate on Defect Concept in Civil Law - Focusing on legal principles examination of so-called psychological defect concept -

    SONG YOUNGMIN | 2018, (80) | pp.79~104 | number of Cited : 1
    This thesis examines so-called psychological defect concept that is being debated in Japanese precedents and theories. Psychological defect is the concept that reflects the negative psychological reaction to the object as itself defect by the information about the object. Psychological defect, if considering as defect warranty obligation, also has the problem about the requirement and effect of contract cancellation and damage compensation, and this kind of defect causes the problem whether subjective defect or objective defect. The characteristic of psychological defect, different from physical defect, would appear by legal assessment, and its damage would not appear as concrete form such as decrease of exchange value and utility value. In addition, these problems should be examined and judged individually by concrete issues, and the conclusion cannot be drawn deductively by rebuilding the psychological defect concept. Defect warranty obligation, if it is viewed as liability of default for the seller and prevention of equivalence imbalance for the object, would be admitted in case that the residence suitability lacks so much as equal to physical defect, nevertheless psychological defect considered as new scope by expansion phenomenon of defect concept. The effect of defect warranty obligation would be judged as the case of admitting contract cancellation by lack of residence utility or its extent, the case of limiting as damage compensation and the case of not admitting even damage compensation. Korean Civil Law has no substantive enactment about defect concept, and it caused a limit to apply Civil Law Clause 580, 581 on defect warranty obligation for the object. The conflict on psychological defect for the object would increase as much as physical defect for the object due to the demand for improving the quality of life. Furthermore, the issue whether the agent has the explanation obligation for the psychological defect of the object or not should be the task to be examined.
  • 4.

    Basis and Scope of Liability for Damages Caused by Breaking-Off of Contract Negotiation

    Park, YoungMok | 2018, (80) | pp.105~140 | number of Cited : 2
    The termination of contract negotiations is in principle free from unlawfulness due to freedom of contract. However, it is the court's position that it is illegal to give damage to a contract partner by refusing to conclude a contract without any good reason after giving reasonable trust to partner. The court referred to this as tort, and pursuant to Article 535 of Korean Civil Code with regard to the scope of damages. Several questions can be raised regarding this judgment. First, it is a question of whether the basis of liability for torts is causing false trust or refusing to sign a contract. The second question is whether it is reasonable to reimburse the reliance interest based on tort. The third problem is the question of what the standard is in the case of compensating the performance interest. The Korean Supreme Court concluded that only reliance damages are allowed in cases of unfair dismissal of contractual negotiations. If the basis of responsibility is the cause of false trust, it is in accordance with the general theory of tort. However, while the basis of responsibility is refusing to sign a contract, rewarding reliance damages is not match with a causal relationship. This attitude of the court can be justified in the sense that damages should not have the same effect as the conclusion of the contract. Even if the termination of the contractual negotiations is unreasonable, it should not create the same status as the conclusion of the contract by compensation of damages. Therefore it can be said that the range of compensation of torts is modified within this range in order to adjust the interests of both parties. However, there is a need for further clarification on matters that have compensated for performance interest. This can be explained by the fact that the terminator of contract negotiations has benefited from the input cost of partner. Anyone who enjoys the performance interests from the expenses of the other party that he/she has caused has to compensate for the performance damages because it is reasonable to compensate the corresponding gains. This is in contrast to other cases where expenditure costs are in vain. Therefore, in case of termination of contractual negotiation, it is possible to explain the position of the case law as that: in principle, irrespective of the grounds of the illegality, the offender must compensates for the reliance interest but the offender who has earned the contractual benefit should compensate for the performance interest.
  • 5.

    A Study on the Legal Improvement of Full-scale Park area abolition System

    kang seog jeom | 2018, (80) | pp.141~176 | number of Cited : 5
    Under the long-term non-funded urban park system, the planned site for the urban park could not be purchased due to financial difficulties by the local administrative body or if the project for creating an urban park was not carried out during such a crisis. However, for land owners who are tied to the urban park zone for more than 20 years due to the urban planning decision, the land owners can either make a payment by making a park formation project as soon as possible, or cancel the land ownership event by quickly. Under such circumstances, I would suggest a legal solution to solve the problem of the uncollected urban parks. First, the private development city park project must be activated and the two parks that can be developed conveniently and are profitable to solve preference conflicts can not be combined simultaneously with the local parks ideally equipped with the two areas that are equipped with a cross-profitability urban park zone. Second, the Act provided that “establishment and operation of a park green space information system should be implemented and managed reasonably and objectively based on actual data through thorough preparation and management of the park register.” Third, although the criteria for the cancellation of the long-term uncollected urban management plan in urban parks should not be set out in accordance with the Act or the Enforcement Decree, the principle of the Minister of Land, Infrastructure and Transport, resulted in the guidelines for the resolution of long-term facilities. Fourth, the national and public lands, which account for 25 % of the long-term uncollected urban parks, have a low possibility of infringing on private rights or property rights, The Act was amended to establish a public land in the urban park site by signing contracts for sub-disciplinary projects other than a negotiated or acceptable purchase decision with land owners within the zone, excluding the actual land use cases. Fifth, mayors, governors, or metropolitan mayors did not apply the Land Planning Act and the Effective Application of the Park Green Act, and the Act on the designation of an urban park as an urban natural park zone, using the designation of an urban park zone, not necessarily covered by the Act on Land Use of Article 15. The Act should enable metropolitan mayors or governors to designate urban parks that are to be installed and managed by the mayor logistics department as metropolitan urban parks. The cost of installing or managing metropolitan parks should be set up in the metropolitan area. Seventh, it was necessary to make the national subsidy pay 50 % of the expense of urban park formation projects and to actively utilize the special accounts and fund management system to solve the long-term uncollected land of urban parks. Finally, in the event that the guaranteed property rights event is violated due to the non-construction of urban parks, that is, an artificial reforestation or installation of the facility without any reward after the urban planning decision is made, the park is being operated unfairly. In addition, in the event of a protest against or against the proposed cancellation of an urban park, an appeal can be filed, Landowners could be forced to carry out urban park projects or to de-designation urban parks 10 years after the decision on the urban and military management plan to be announced by Article 48 of the National Territory Planning Act, Since the executive office will be required to release the city park from the long run, If the government refuses to do so, it will be regarded as an act of fire under the government power in which the duty of office is recognized. Thus, land owners on the land of the uncollected urban parks for more than 10 years could file a petition with the Constitutional Court with the head of the local administrative office to obtain a right to file a petition.
  • 6.

    Entstehung und Entwicklung des zivilrechtlichen Namensrechts

    NAM,YOON-SAM | 2018, (80) | pp.177~212 | number of Cited : 2
    Der Name eines Menschen ist Ausdruck seiner Persönlichkeit und hat eine Ordnungsfunktion im öffentlichen Recht. Daneben hat der Name einen wirtschaftlichen Wert. Aufgrund seiner verschiedenen Funktionen in unterschiedlichen Bereichen ist der Name Gegenstand verschiedener Rechte. Die deutsche Rechtswissenschaft hat über hundert Jahre über die rechtliche Natur des Namens und dessen rechtlichen Schutz diskutiert. Heute gilt das Namensrecht in Deutschland als ein subjektives absolutes Persönlichkeitsrecht im Zivilrecht. Dementsprechend ist der Namensschutz in § 12 BGB verankert. Der Weg bis dahin war lang und beschwerlich. Ziel des Beitrages ist, diesen Weg historisch nachzuzeichnen. Die vorliegende Arbeit gliedert sich in drei Teile. Im ersten Teil wird erstens kurz auf die Entstehung der Familiennamen, zweitens auf den Schutz der Adelsnamen, drittens auf die Rolle der festen Familiennamen im Aufbau der öffentlichen Verwaltung und schließlich auf den wirtschaftlichen Wert des Namens im Zuge der Industrialisierung eingegangen. Durch die Verstädterung und Stadtgründungen im hohen Mittelalter wurde eine klare Differenzierung gleichnamiger Menschen immer wichtiger. Zu jener Zeit gab es keine gesetzlichen Vorschriften bzgl. der Namen, denn es herrschte Namensfreiheit, die nach der Rezeption des römischen Rechts zum rechtlichen Grundsatz wurde. Nur bei betrügerischen Handlungen wurde man straftrechtlich geahndet. Feste Familiennamen finden sich zuerst beim Adel. Die Adelsnamen und -wappen im deutschen Privatrecht galten als Privilegien, die durch ein absolutes Verbietungsrecht geschützt werden sollten. Im Schutz der Adelsnamen sahen die Rechtswissenschaftler später einhellig eine der historischen Wurzeln des subjektiven Namensrechts. Ferner hatte der Staat das Bedürfnis, in erster Linie aus militärischen Motiven und aber auch aus steuerlichen Gründen, die Bürger systematisch zu erfassen. Infolgedessen wurden Verordnungen erlassen, die willkürlichen Namensänderungen verboten. Mit der einsetzenden Industrialisierung gewann der Name neben seinen anderen Funktionen einen wirtschaftlichen Wert. Denn Firmen und Marken trugen Personennamen, die für den ordnungsgemäßen Handelsverkehr vor Verwechslungen und Mißbrauch geschützt werden mussten. Die Fachdiskussionen über das Recht am Namen begannen erst Anfang 19. Jh. Eine Reihe von Wissenschaftlern haben verschiedene Ansätze entwickelt, wie der Name juristisch zu bewerten sei. Die Theorien dieser Gelehrten bilden den Gegenstand des zweiten Teils. Daran anschließend werden im dritten Teil die Entwicklung des Namensrechts zum subjektiven Persönlichkeitsrecht und die Einführung des § 12 im BGB näher erläutert. Erst nach dem 2. Weltkrieg kam der Gedanke des Namensrechts als Persönlichkeitsrecht zur Entfaltung, denn nun hatte das Individuum den Vorrang vor der Gesellschaft. Die Verwirklichung des allgemeinen Persönlichkeitsrechts wurde sogar als “justizspezifische Vergangenheitsbewältigung” und als “Bekenntnisse zur Demokratie” bezeichnet. Im koreanischen Zivilrecht fehlt ein dem § 12 BGB entsprechender Paragraph. Das namensrechtliche Persönlichkeitsrecht stand in Korea selten im Fokus der wissenschaftlichen Auseinandersetzung. Möge die vorliegende Arbeit Anregungen geben für weitere Diskussionen über das zivilrechtliche Namensrecht in Korea.
  • 7.

    Study on the legal nature of housing sale guarantee contract

    TAEKWAN KIM | 2018, (80) | pp.213~240 | number of Cited : 0
    When the business entity pre-distributes the common housing, it is necessary to conclude a housing sale guarantee contract with Korea Housing & Urban Guarantee Corporation(HUG) without fail, as provided for in the regulations concerning housing supply. However, according to Article 8 of the housing sale guarantee terms, which constitutes the contents of the housing sale guarantee contract, HUG uniformly performs fulfillment or refund implementation based on two-thirds or more decision making of subscribers. The way of performance of HUG's housing sale guarantee contracts is questionable as to whether they are consistent with the character of the guarantee contract. The housing sale guarantee contracts may correspond to the guarantee contracts or damage security contracts, depending on the extent to which the dependency has admitted during the housing sale guarantee contract or the housing sales contract. In case of grasping the nature of the housing sale guarantee agreement as a damages collateral agreement, the obligation under the housing sale guarantee contract is an independent obligation separate from the debt borne by the sale contract. therefore, if the requirements prescribed in the housing sale guarantee agreement are met, regardless of whether the sale agreement contract will be canceled or not, HUG will be able to fulfill the sale and refund pursuant to the provision of the housing sale guarantee agreement. Therefore, considering the clause of the housing sale guarantee condition, it is only possible to judge to what extent the dependence relationship of the housing sale guarantee contract is accepted. As a result of review, it is reasonable to see the housing sale guarantee contract in the damage security contract.
  • 8.

    Legislative Tasks for International Development Cooperation in Era of UN’s Sustainable Development Goals

    Kwangdong Park | Ryu, Hwa-yeol | 2018, (80) | pp.241~268 | number of Cited : 4
    As the global community is seeing a historical shift in development agenda regarding United Nations-led international development cooperation from the Millennium Development Goals (MDGs) to the Sustainable Development Goals (SDGs), it is time to rethink the meaning of international development cooperation and to make legislative changes with regard to the current international development cooperation. While the MDGs aimed to accomplish specific targets in a limited scope, the SDGs are norms that focus on achieving a broad range of targets. In this regard, a review of the Korean legislation is required to effectively carry out the SDGs. However, various laws related to the SDGs have to be reviewed stage by stage and, in doing so, which law would be first subject to such review needs to be examined in detail. Therefore, consideration should be given to legislative improvements in domestic laws regarding the SDGs, such as the Framework Act on Sustainable Development and the Framework Act on International Development Cooperation. One of the important things, in this case, is to clarify the legal status of both Acts to implement the SDGs as well as their basic ideas that can serve as a foundation for determining a consistent direction, and to specify in the Acts individual provisions concerning the efficient management of the SDGs. Furthermore, legislative improvements in each individual law and for each area have to be made based on the content of the two Acts in a way that corresponds to the targets of the SDGs.
  • 9.

    Infringe on trademark right of Keyword Search advertisement

    Inhoi Park | Shin, Mi-Ri | 2018, (80) | pp.269~300 | number of Cited : 2
    Keyword search advertising is a kind of online advertising, which is an advertisement technique that allows an advertiser who has contracted with a search service provider to be exposed on a screen where search results are displayed when a search word is entered in a search engine of a search site. These keyword search ads are targeted advertisements, so they are only exposed to those who are interested in them. Also, for this reason, when the advertiser uses a specific trademark as a keyword, the keyword searcher is in conflict with the trademark owner and infringes the trademark right. By comparison, the United States states in the US federal trademark law article 45 that what is included in the “commercial use” of a trademark is important, so it is important whether this is a “commercial use” under Article 45 when discussing trademark infringement. In accordance with Article 32(1)(a) of the US Federal Trade Act, the provisions of Article 43(a) and (C) of the Act provide for the misrepresentation of origin And the unfair competition and dilution caused by the infringement of the establishment is recognized. The theory of whether these keyword search ads infringe the trademark is that the confusion can be caused when the provider attracts the consumer due to the special environment of the Internet. When discussing the initial interest confusion doctrine and trademark infringement Trademark use theory, which claims that there must be ‘use of trademarks’ consistent with the definition of ‘trade use’ as laid down in the federal trademark law, as a precondition for trademark infringement before judging the existence of confusion or dilution. As a result, both sides have in common that the notion of ‘trademark use’ in the current trademark law is not appropriate to cover the meaning of ‘trademark use’ in the current market situation of the internet market. If the behavior of keyword search ad is affirmed against trademark infringement, the problem of responsibility of search service provider and advertiser that can be considered as the subject of the action corresponds to the problem to be solved. In order to solve this problem, it is necessary to make clear definition rules and the responsibilities of service providers to reflect the fact that online advertising such as keyword search ads related to trademarks are easily confused with consumers and that search service providers have a great influence. It would be desirable to establish regulations on exemption.
  • 10.

    A Study on Improvement of Regulation System for Limitation of Liability of Online Service Providers - Focusing on General Monitoring Obligation

    La, Kang | 2018, (80) | pp.301~340 | number of Cited : 3
    The distribution of contents and information under the digital network environment is carried out through various online services provided by an online service providers as a mediator. There has been much debate as to why online service provider who is not a direct infringer should bear responsibility for the illegal activities that occur in the service. Legislation on legal liability to online service providers has emerged as a legislative form of liability for online service providers who exempt them from liability under certain conditions. The DMCA of the United States and the EU e-commerce directive are such legislations. In Korea, the limitation of liability of online service providers was introduced in copyright law in 2003. After several revisions, In 2011, the Copyright law has taken a very similar set of rules to the DMCA that subdivides the types of online service providers and sets out the requirements for exemptions by type. On the other hand, in addition to the limitation of liability of online service provider in the copyright law, individual legislations that imposed criminal liability and administrative sanctions against illegal information such as Game Industry Promotion Act, Child Juvenile Protection Act, There is a tendency to expand liability along with online service provider liability restrictions. In principle, foreign legislations prohibit liability for information that is not recognized when liability is imposed on online service providers, and prohibit the imposition of general monitoring obligation, such as filtering techniques that may be pre-screened. However, in Korea, in addition to the liability limitations of the online service providers, individual legislations are being followed, which can be seen as a broadening of liability and a general monitoring obligation. This phenomenon needs to be improved because it fades the intention of introducing online service provider liability restrictions and is becoming a confusing regulatory framework for online service providers. The Internet in the digital age is a space for communication and a space for free information distribution. The imposition of general monitoring obligation may create harm caused by pre-screening. In addition, it does not compatible with the characteristics of the Internet, such as free distribution and communication of information. For these reasons, imposing a general monitoring obligation should be prohibited. In this study, I analyze the regulation system and problems of Korea law regarding the limitation of liability of online service providers and the legislative cases and precedents of foreign countries, and suggests ways to improve the current liability limitation system of online service providers in Korea focusing on general monitoring obligation.
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