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2019, Vol., No.82

  • 1.

    Grundrechtstheorie und Grundrechtspraxis - Weg für den Grundrechtsstaat in demokratischem Rechtsstaat -

    Kim, Hae-Won | 2019, (82) | pp.1~34 | number of Cited : 0
    Abstract PDF
    Grundrecht, das für Menschenwürde und Wert als Mensch ist, ist ein Recht von Verfassungsrang. Grundrechte, die alle Staatsgewalten als unmittelbar geltendes Recht binden, sind in erster Linie Rechte gegen den Staat. In diesem Sinne erkennen die Grundrechtsvorschriften dem Individuum einen „staatsfreien“ Bereich zu. Deshalb ist Grundrecht nicht nur für alle Staatsbürger Mittel, sondern auch für alle Staatsgewalt Zweck. Staatsgewalt ist nach der Demokratie gerechtfertigt und ist nach dem Rechtsstaat kontrolliert. Deshalb ist der demokratische Rechtsstaat die Grundstruktur des Verfassungsstaats und ist Grundrecht verfassungsrechtliche materielle Norm, um Demokratie und Rechtsstaat zu leiten. Grundsätzlich ist die Grundrechtsprüfung einer Grundrechtspraxis vorausgegangen. Diesbezüglich der Prüfungsintensität soll die Grundrechtsprüfung für die aktive Grundrechtspraxis, noch strikter als die Grundrechtsprüfung für die passive Grundrechtspraxis sein. Die Ausübung der aktiven Grundrechte in der demokratischen Rechtsstaatlichkeit erfolgt durch den politischen Prozess, der auf Demokratie angewiesen ist, und die passive Grundrechtspraxis wird auf den Rechtsstaat abgestellt. Politische Macht, die sich auf Demokratie stützt, sollte auf das Risiko einer Verletzung der Grundrechte durch die Mehrheit achten. Die gerichtlichen Vollmachten müssen darauf achten, dass die demokratische Politik nicht durch die Rechtslogik gebrochen wird.
  • 2.

    Status of SSM (Super supermarket) ordinance

    Kim, Hyung-Sup | 2019, (82) | pp.35~68 | number of Cited : 0
    Abstract
    In this study, the conflicts between the big companies and small and medium enterprises (small and middle sized enterprises), managers and workers, rich and poor people, power and non - power people are getting more and more intense to represent each other 's interests. And the disintegration of the people, the deepening of the goal of social distrust, and the struggle to represent their own interests. The registration and adjustment regulations of Jeonju city large-scale stores were decided by Jeonju city based on the development law of the distribution industry, and the large marts of Jeonju city and all SSMs nationwide are closed for duty twice a month. Many city and provincial parliaments passed the ordinance along with Jeonju city, and regulations were made in all city and provincial councils, and regulations of large marts and SSM are taking place all over the country. In the case of foreign companies, the old legislation of the US, Japan, and Europe inevitably creates an artificial barriers to entry. We have sought the way of coexistence of small merchants and small retailers. However, current foreign legislation argues that previous legislation has eliminated competition in the distribution sector and has reduced consumer welfare, and again, under the logic of the free economic system, entry barriers in the distribution sector have had a negative impact on national competitiveness It recognizes the fact that it is growing and is showing a strong will to reform it. In particular, the controversy over SSM regulation in Korea is that SSM should regulate the market entry. If SSM enters the existing market, it may temporarily increase the welfare of consumers, but in the long run, they will exempt the existing small- It is that the monopoly power is used and the consumers are exploited and ultimately the consumer welfare will decrease. Now we have come to the point of looking for coexistence of large corporations and small business owners. In the future, we should make time for the change and development of the small business people in the free competition in the free competition through regulation. It is unlikely that it will be too late to leave the free market economy order after time and national policy support to secure the competitiveness of small businesses.
  • 3.

    Research on the french Legislative Issue and Implications of Cyber Security

    Jung, Kwan-Seon | 2019, (82) | pp.69~100 | number of Cited : 1
    Abstract
    New destructive practices are developing in cyber space, including criminal use of the Internet (cyber crime), including for terrorist purposes; large-scale propagation of false information; espionage for political or economic ends; and attacks on critical infrastructure (transport, energy, communication, etc.) for the purposes of sabotage. Cyber security covers the entirety of security measures that could be taken to defend against these attacks. The spectacular increase in the sophistication and intensity of cyber attacks has, in recent years, led most developed countries to toughen their resilience and adopt national cyber security strategies. France’s national cyber security policy is based on two essential texts: The 2013 White Paper on national security and defence and the 2015 National Strategy for Digital Security. With the National Cyber Security Strategy, the French State is working to ensure the security of IT systems to move towards a collective response, towards the digital trust required for the stability of the State, economic development and the protection of citizens. Many players contribute to the efficacy of this strategy from technical and operational standpoints. Created in 2009, the French Network and Information Security Agency (ANSSI) is the French national authority on cyber security. The authority is a genuine “firefighter” of French cyberspace, it is responsible for preventing (including from a normative perspective) and reacting to IT incidents regarding sensitive institutions. It also organizes crisis management exercises on a national level. ANSSI currently has over 500 staff members and continues to grow. The French Ministry of Defence has a dual mission to ensure the protection of the networks which underpin its action and to integrate digital warfare into military operations. In order to consolidate the Ministry’s work in this field, a cyber defence operational chain of command (COMCYBER), placed under the orders of the Armed Forces Chief of Staff, was created in early 2017. The French Ministry of the Interior aims to fight against all forms of cybercrime, aimed at national institutions and interests, economic stakeholders and government authorities, and individuals. It therefore involves specialised central services and the territorial networks of the general directorates of the national police, French gendarmerie and national security. They are responsible for leading investigations aimed at identifying those responsible for acts of cyber crime and handing them over to the authorities. These services also help to carry out prevention and awareness-raising activities with the relevant audiences. It should be noted that France establishes the above-mentioned organization and imposes its duties in order to guarantee cyber security, and at the same time, stipulates that the authority granted for guaranteeing cyber security should be used within the scope of the law. It is the “loi n°2015-912 du 24 juillet 2015 relative au renseignement”
  • 4.

    Strategies and Tasks of Education Law - Focused on Local Education Autonomy Legislation -

    Ha, Yun Su | 2019, (82) | pp.101~132 | number of Cited : 1
    Abstract
    The purpose of this study is to review the argument and the structure of the debate of Moon Jae-in government as their national task on the direction of the legal reform for the expansion of the local educational autonomy along with the expansion of the local autonomy. For this purpose, researcher examined debates of the constitutional background on the law related to the local educational autonomy and the conflict cases between central and local government. Above all, the Constitutional grounds for local autonomy should be viewed as Article 31 (4) of the Constitution. It is suggested that the distribution of the work of the Ministry of Education and local offices of Education under the principle that the State is responsible for the formation and enforcement of the overall education system in order to guarantee the right of the people to receive equal education under the 「Constitution」 and 「Basic Education Law」. The present study examines the current structure and status of the debate and revision of the legislative system related to local autonomy and proposes the directions and issues for the revision of the legislation. The local education self-governing provisions appearing in the Act on the Establishment and Maintenance of Relevant Laws for the Mass Transfer of Local Authorities and Administrative Offices, which are promoted on the autonomy of the presidency belonging to the President, It is suggested that a systematic review of legislative measures for the improvement of local education autonomy system, such as the coordination of central - local educational institutions, which is the current problem, is needed. Article on the local educational autonomy on the 「Law on the Transferring Central Administrative Autonomy and Work to the Local Government」 is just a summarize of the previous government’s agreement, therefore it is suggested that systematic review of legislative measures for improvement of local education autonomy system such as coordination of central - local education autonomous institutions conflict which is a current problem. Ministry's authority should not be fully transferred to the local educational offices and it should be the baseline regarding the 「Special Act on Local Decentralization of Kindergarten, Primary, and Secondary Education" pursued by the Ministry of Education and Committee of the Metropolitan‧Provincial Superintendent of Education. The researcher also suggested to consider the systemization of the independent council of the city and provincial council for the amendment of the relevant law on the promotion of the decentralization of education pursued by the Korean Educational Development Institute (KEDI), and also it needs to be reconsidered to draft regulations on the opinion submission of the upper legislation. The end of educational autonomy should be the school. In addition to the central - local horizontal authority distribution, central - local – each school should also take account of the responsibilities and ultimately, a legislative system should be set up to strengthen the autonomous operation of each school.
  • 5.

    A Critical Review on the Current Sheriff System in Korea

    JEOM IN LEE | 2019, (82) | pp.133~178 | number of Cited : 3
    Abstract
    The enforcement system of Korea has been practiced for 80 years since the introduction of Japan"s mainstream system during the Japanese colonial era since 1936, when Japan was in its rule. However, in the meantime, the enforcement system has been transformed without major changes, except that the name is changed from the law enforcement office(executor) to the law enforcement office(bailiff) and again to the law enforcement office(bailiffs). First, the most serious problem is the appointment of the enforcement office(bailiffs). Second, the legal status of the enforcement Officer of Korea should be considered to be the closest to the nature of public servants in current law. Third, in the future, the enforcement officer should greatly strengthen the qualification requirements for those who have completed three years of graduate law school or who have been in the position of more than 5 years of clerk of court or prosecutorial office, through the open competition test. It is required to have a position that is equal to the requirements for attorney qualification.
  • 6.

    A study on Liquidated damages for delay in Construction Contract

    Seog, Jiyoon | 2019, (82) | pp.179~214 | number of Cited : 1
    Abstract
    Liquidated damages for delay are concluded for the purpose of ensuring the fulfillment of obligations through the psychological enforcement of the debtor, avoiding difficulties in proving the damages of the contractor, preventing the strife in advance and simplifying the legal relationship concerning damages. In order to secure the fulfillment of the obligations of the provider and to avoid the difficulties of verification, it is the purpose of the delayed pension system, Article 398 (4) of the Civil Code assumes that the contract of the penalty is the planned amount of damages, In the light of the fact that it is too harsh for the supplier, it is reasonable to assume that the compensation prize is the planned amount of compensation for damages or the compensation for damages if it can not be confirmed. The Rate of liquidated damages for delay rate is 18% or more when converted to annual interest rate, which is very high in view of the 3.5% annual interest rate. In order to ensure mutual satisfaction between the two parties, it is desirable to apply the differentiated payment rate according to the amount of the contract in consideration of the size and kind of the corporation. It is also desirable to limit the upper limit of the money to the contract deposit. The dispute related to the liquidated damages for delay can be regarded as the confirmation of facts such as the existence of the cause of exemption, the calculation period of the liquidated damages for delay, and the recognition of the reduction rather than the legal dispute. Therefore, in order to minimize the disputes related to the liquidated damages for delay, it is necessary to revise the general conditions of construction contracts and the general conditions of contracts of private construction contracts, which are frequently used in actual transactions, so as to limit the upper limit of rate of liquidated damages for delay, And it is necessary to flexibly extend the contract period.
  • 7.

    Inter-Agency Cooperation for Child Abuse Prevention - Focusing on Child Counseling Centers and Municipalities in Japan -

    Park, Ju-Young | 2019, (82) | pp.215~250 | number of Cited : 1
    Abstract
    With the number of reported child abuse cases are increasing every year in Korea and Japan, social demands for strengthening public intervention in child protection are on the rise in both countries. Japan has been responding to child abuse cases inclusive of providing counseling services for children and families, by having respective prefectures establish a child counseling center, a specialized administrative agency. However, it became necessary to adopt a more professional and systematic management, as the number of reported child abuse cases and child abuse counseling have increased and as more and more child abuse cases are becoming increasingly diverse and complicated. In response, Japan amended its related laws, such as the Child Welfare Act, making the municipalities take charge of counseling children and families for child abuse prevention and providing initial response to relatively minor child abuse cases. Meanwhile, child counseling centers established themselves as the agencies supporting the municipalities from behind while responding to child abuse cases that require higher level of professional knowledge and skills. In order to ensure the efficiency of such division of work, Japanese government is strengthening the connection and cooperation between the two agencies. In contrast to Japan’s public management system of operating child counseling centers, matters related to child abuse in Korea are entrusted to the private sector and thus handled by child protective services. In order to overcome the limitations in providing effective services resulting from this situation and build a more stable child protection system in Korea, it is necessary to enhance the authority and responsibility of local self-governing bodies such as city, country, and district offices, and to establish a system for them to connect and cooperate with local child protective services. In order to support this system, it is necessary to establish appropriate conditions such as adequate placement of personnel and provision of training to strengthen expertise.
  • 8.

    A Study on the Suitability of the Theories on the Transaction of the Promissory Note (including the Bill of Exchange)

    Lee, Seong Woo | 2019, (82) | pp.251~278 | number of Cited : 0
    Abstract
    The transaction of the bill of exchange or the promissory note (hereinafter called as “promissory note”) is regulated by not only the Promissory Note Act but also the Banking Act. But all the studies on the legal problem arising from the transaction of the promissory note are focused only on the clarification of the legal meaning of the Promissory Note Act. Especially, the Intend of the Promissory Note Act is the guarantee of the smooth negotiation. Nevertheless, every theories on the transaction of the promissory note insist that all the transaction of the promissory note, no matter the negotiation, shall be excluded from the principle of the civil law. The Banking Act does provide the service on the promissory note as the business of the bank established and incorporated by the Banking Act and the clearing house rule is being in effect according to the Banking Act. So, the transaction of the promissory note shall be applied by the Banking Act, the same as it is applied by the Promissory Note Act. And the transaction of the promissory note unrelated with the negotiation shall be ruled by the principle of the civil law. The dead zone of the just defence due to the deficit of the provision on the cutting off the defence(Article 17 of the Act of the Bill of Exchange), shall be complemented by the estoppel and the prohibition of the abuse rule not by the abstruse theories.
  • 9.

    Challenges in International Essential Medicines Supply and Drug Development under the TRIPs Agreement: Focused on Compulsory License and Evergreening

    BYUNG-WOON LYOU | 2019, (82) | pp.279~314 | number of Cited : 0
    Abstract
    The core of the right to health, as one of the international human rights, is the guarantee of universal access to essential medicines. The “flexibility” in application of the WTO TRIPs Agreement under the 2001 Doha Declaration has contributed to 93% of HIV carriers today to be able to use antiretroviral generic drugs. However, developing countries such as India are in reality abolishing the patent rights of medicines by abusing measures related to flexibility of the TRIPs agreement, rather than coexistence of intellectual property rights and public health. Some developing countries also use the flexibility of the TRIPs agreement for its industrialization strategy for economic development rather than the original purpose of public health. The international balance between public health and patent rights of medicines should start from the conformity with the TRIPs agreement. Because TRIPs Agreement flexibility is based on public health, the WTO Member States’ measures related to the flexibility, such as compulsory license or decision on patentability, should be considered in terms of the welfare increase that patients can receive, including therapeutic effects. Compulsory license, which is an exceptional market intervention by government, should be implemented in a limited and strict manner in accordance with the TRIPs agreement. Especially, the WTO Member States should not prescribe cases where compulsory enforcement can be enforced unless they are produced locally, on the principle that they should not be discriminated against, regardless of whether they are imported or produced locally. The international community needs to look for a proper approximation of the patentability standards, in particular improved technology or clearer definition about new formulations of existing compounds. The WTO will be able to search for and propose a proper approximation of the patentability standards through cooperation with WIPO and WHO. In order to ensure the distribution of good quality generic drugs, each State should have a powerful and well regulated drug administration with a sufficient inspection budget. The international community should cooperate with the crackdown on counterfeit drugs and the prevention of the circulation of poor quality generic drugs resulted from poor manufacturing process and inadequate regulatory supervision. States and the international community should resolve the current and future essential medicines supply challenges through a rational balance between public health and pharmaceutical patents. With the role of international organizations such as WHO and State governments in the development and supply of present and future essential medicines, patent guaranteeing incentives for new drug in the market can improve the substantiality and value of human life.
  • 10.

    A Comparative Study on the Private Equity Regulatory System in South Korea and China

    Lixianhua | 2019, (82) | pp.315~336 | number of Cited : 0
    Abstract
    South Korea stipulated rules on the private equity systematically in its Capital Market Law, and pushed its stable development by multiple alterations of overly strict legislations on private equity. Recently, China has continued the perfection of relevant regulations and established private equity legislation system as well. The Interim Measures for the Supervision and Administration of Privately Offered Fund (Aug 21st, 2014; hereinafter referred to as “Interim Measures”) has already become an important regulation on the private equity. Furthermore, China actively promotes the enactment of Interim Ordinances for the Supervision and Administration of Privately Offered Fund (Aug 30th, 2017, draft for comment; hereinafter referred to as “Interim Ordinances”), and has supplied several special regulations like Measures for the Administration of Information Disclosure of Privately Offered Funds (Feb 4th, 2016) and Measures for the Proper Management of Investor Suitability (July 1st, 2017; hereinafter referred to as “Propriety Measures”) for the perfection of supervisions on private equity. We can observe, from two countries’ progress in regulatory legislations, that South Korea experienced a strict-to-mild course, which is just the opposite of China’s. In terms of the concept definition of private equity, Chinese legislation uses the term privately offered fund that means a privately formed collective portfolio under the jurisdiction of CSRC. While under the jurisdictions of financial institutions like insurance companies and banks, the term private formed asset management is used instead of the former one. In order to regulate the asset management business of financial institutions as well as unify supervisory standards of asset management products in the same categories, PBC, CBRC, CSRC and FECB jointly released the Guidance on Regulating the Asset Management Business of Financial Institutions (April 27th, 2018). According to the guidance, regulations on the privately formed asset management should be widely rectified. Since relevant regulations on CSRC’s private equity are almost in accordance with the guidance, the research emphasizes the study on the stipulations on privately offered fund. The paper carries out a main comparative study on the access mechanism of private equity manager, standard of qualified investor, recommendation of placing, and information disclosure. In regard to private equity access mechanism, China laid emphasis on the regulations of manager registration. Yet the lack of specific registration requirements may subsequently result in the possibilities of policy interferences with the manager’s access. With respect to the provisions on the qualified investor, there are still overlaps and contradictions, although China has already enumerated specific provisions where an enhanced systemization is to be expected. In terms of the recommendation of placing in Propriety Measures, China distinguished ordinary and professional investors, the latter’s determination of which adopted double standards (property and experience standards) that could be seen as a more advanced system than Korea’s. In addition, specified provisions on the proper management obligations are seen in Propriety Measures, the idea of which is similar to Korea’s Principle of Propriety or Principle of Suitability. However, it is worth learning that Korea has already perfected the specific connotation of the Principle of Propriety in a great degree by its judicial practice. Last but not least, in terms of information disclosure, a boundary between collection and operational phases in private equity can be seen in Chinese stipulations. Since both the phases request for information disclosure, it is more promising in the protection for the investors. In conclusion, compared to Korean systematic stipulations there are still deficiencies in Chinese regulatory legislations on the private equity. Yet some provisions are more advanced due to China’s benign references to such countries’ progressive systems as America’s, Korea’s and Japan’s.
  • 11.

    Transformation of the Legal System of Collective Bargaining and Collective Agreement in France

    Jo, Im Young | 2019, (82) | pp.337~370 | number of Cited : 0
    Abstract
    The purpose of this article is to introduce the progress, key contents and characteristics of the changes in French legal system of collective bargaining and consider their meaning and implications. The main aspects of the change regarding collective negotiation are as follows. As a matter of principle, collective agreements entered into at the company-wide level will prevail over collective agreements entered into at the industry-wide level, except in limited areas specifically enumerated by law in which collective agreements entered into at industry-wide level imperatively prevails or may prohibit company-wide collective agreements from providing for different stipulations. Such a system could be assessed to have problems in terms of fragmentation of labor-related norms and the difficulty of balancing bargaining power within a firm.
  • 12.

    Discussion on Withdrawing of life sustaining treatment

    Jaeho Lee | Hyeokdon Kim | 2019, (82) | pp.371~404 | number of Cited : 2
    Abstract
    Our Hospice-Palliative Care and Life-sustaining Treatment Decision- making Act needs to solve the following problems. It does not take into consideration the possibility of exercising self-determination according to age, since it regulates only minority uniformly. In addition, regarding the writing of the patient 's medical intent, it seems that the minor can sufficiently prepare the medical intent just by interpretation of the words in the Hospice-Palliative Care and Life-sustaining Treatment Decision-making Act. However, under the Korea Civil Code, minors are not capable of independent legal acts, and they are allowed to perform certain legal acts under the consent of legal representatives. Therefore, it is necessary to properly divide the minors in consideration of their legal ability or mental capacity. The German Civil Code defines minor children as being under the age of 7 and under 19, and the German Social Code gives the possibility of additional claim right to minors with 15 years age or older. There was a precedent in the conflicts case between minor in 15 years old and a legal representative to give a veto right to a minor. It is also possible in our civil code to distinguish the legal acts of minor according to age. An example is the Korea Civil Code, which states that a 17-year-old minor has the ability to testify. There is a need to distinguish the minors under Hospice-Palliative Care and Life-sustaining Treatment Decision-making Act. And to secure the objective possibility of supplementing the minors' intentions to decide about Withdrawing of life sustaining treatment. In our case, the conflict of opinion between patient and his parent is highly likely to be decided by the parents' will, and there is little possibility to control it. In addition, the objective criteria for judging these presumptive opinions seem unclear. First, the basis for establishing the presumptive opinion of the minor shall be established. For this purpose, concepts such as patient welfare or best interests should be utilized. Furthermore, it may be another method of the courts' role in allowing the legal representative's consent to Withdrawing of life sustaining treatment. It is also possible to entrust an objective test to a public prosecutor who acts as a public prosecutor.
  • 13.

    Criticizing Judge’s Participation in Mediation and Conciliation in Poland and Korea

    Choung, Young-Hwan | Agnieszka Gora- Blaszczykowska | 2019, (82) | pp.405~446 | number of Cited : 0
    Abstract
    As we recognized, our ancestors had used traditional methods of mediation or arbitration by adopting the third neutral party for resolving disputes for a long time. Furthermore, current legal authorities, such as in Poland and Korea, also have established mediation process in order to provide an expedited resolution. The current court-connected mediation programs might also provide the speedy finality of complicated proceedings because these programs in Poland and Korea to be operated by the same neutral, that might be similar with the both processes of mediation and arbitration. Authors reconsider the Polish and Korean judge’s role as a mediator or conciliator. According to Polish and Korean legal provisions, the judge can have the authority to review the mediation cases in the same location. The question is whether the judge who plays role of mediator or conciliator violates ethical rules like trust and independence. The paper will reveal the possible conflict of interest between the judge (who is the mediator or conciliator) and the parties during the mediation or conciliation process and propose the probable solutions. In one glance, it could be a strong point of double aspects of judge-like mediator when the parties could not reach a consensual agreement. Based on the judge-like mediator, as call as Med-Arbitrator, same neutral process could save time and effort of both parties by an expedited process. However, it might provide significant problems for both the judge-like mediator and parties, such as confidentiality, impartiality and detrimental self-determination. Therefore, the mediator should not take a role of judge-like position when the parties could not reach a mutual agreement. For example, the judge-like mediator might face the inherent conflicting interest based on the limitation of mediation program, such as finality and confidentiality, detrimental candor and good-faith of the involving parties.
  • 14.

    Recent Decisions on Specific Personal Jurisdiction in the United States Civil Procedure

    Young-Ran Choi | 2019, (82) | pp.447~474 | number of Cited : 0
    Abstract
    In the U.S. Civil Procedure, personal jurisdiction is categorized into specific jurisdiction (or case-specific jurisdiction) and general jurisdiction (or all-purpose jurisdiction). Specific jurisdiction or case-specific jurisdiction may be asserted when the cause of action arises out of or relates to the contacts with the forum state even if the defendant's contacts with the state are isolated or sporadic. General jurisdiction may be referred when the cause of action does not arise from or relate to the defendant's contacts with the forum state. This paper looks over three U.S. Supreme Court cases on specific jurisdiction, J. McIntyre Machinery, Ltd. v. Nicastro in 2011, Walden v. Fiore in 2014, and Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County in 2017. Specific jurisdiction in all three cases was denied on different grounds. Here, the review of these three cases will help to grasp how the U.S. Supreme Court has interpreted and applied the long-established principles of specific jurisdiction, especially for litigation practices in the future.
  • 15.

    So-called Ahn Jong-Bum’s Pocket Notebook and Admissibility of Evidence

    Cha, Jeong-In | 2019, (82) | pp.475~504 | number of Cited : 2
    Abstract
    The independent special prosecutor Park Yeong-Su charged the chief executive officer Lee Jae-Yong with a bribery case. In that case, the decisions of the appellate court and the original court on the admissibility of the evidence, so-called Ahn Jong-Bum’s pocket notebook(hereafter ‘pocket notebook’) are contrary to each other. Directly after every meetings of the former president Park Geun-Hye and Lee Jae-Yong, Park descrived the conversation to Ahn Jong-Bum, her secretary and instructed him to do some official businesses. Ahn declared in the court that he wrote the conversation and the instruction as he heard them, and that he didn't add or subtract in writing. This pocket notebook is not hearsay evidence in connection with the criminal trial of Lee Jae-Yong because the pocket notebook was not used in proving the truth of the statements of Park Geun-Hye used in proving the existence of Park's statements. In FRE rule 801, the article of exclusions from hearsay, “statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion. And “hearsay” means a statement that a party offers in evidence to prove the truth of the matter asserted in the statement. There is one exception in this case. Lee Jae-Yong's statements that Park Geun-Hye descrived to Ahn Jong-Bum after the meetings and Ahn wrote the description are hearsay evidences in connection with the criminal trial of Lee Jae-Yong, because the pocket notebook was used in proving the truth of the description of Park Geun-Hye.
  • 16.

    Overseas Application Coverage of Administrative Criminal Law - Supreme Court Case 2014do10051 -

    Kil Mo Koo | 2019, (82) | pp.505~536 | number of Cited : 2
    Abstract
    The ruling of the case 2014do10051 is a judgment on whether Korean people will be punished if they violate Korean administrative criminal law in foreign countries. It is a case that the Korean people carried out massage business in Japan without the massage qualification under Korean Medical Law. The Court of Appeals ruled that the accused should be punished. However, the Supreme Court reversed the ruling of the original trial on the grounds that the administrative criminal law of the Medical Law is applied only to the domestic cases. This judgment is meaningful in that it does not say that it should be punished with the application of the Criminal law Article 3. The Criminal law Article 3 stipulates that 'This Act shall apply to nationals who committed a crime outside the territory of the Republic of Korea'. This provision should be interpreted as the unconditionally active personal principle. This is so unusual provision that similar provisions can not be found in other countries' criminal laws. Therefore, methods of interpretation of this provision should be studied to minimize the problems of this Regulation. Article 8 is a regulation that limits the application of general provisions of the Criminal law to administrative criminal laws. Therefore Article 8 may be construed as a provision limiting the application of Article 3 to administrative criminal laws. Article 8 provides that Article 3 may not apply if there is a special regulation in the corresponding Act. And since the application of Article 8 paragraph acts as a reduction of the scope of the punishment, it is not a violation of the criminal justice system to interpret a special regulation as a implicit provision. The purpose of legislation shall be considered in the interpretation of implicit regulations. In this case, Article 8 can be used as a provision that restrict the administrative criminal provision of the Medical Law from being applied to the crimes committed overseas by Koreans. I agree with the conclusion of this judgment. However, This issue should be solved by applying Article 8 of the Criminal law. This article regulate the scope of the application of the general criminal law principle to the administrative criminal law. In analyzing and criticizing the case, I reviewed the resolution method of international criminal case and the scope of the application of the general criminal law principle. Due to the globalization, the number of international criminal cases in which Korean commit crimes in foreign countries may increase in the future. I think it is necessary to study the solution of these cases.