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pISSN : 1225-3405 / eISSN : 2713-5470

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2019, Vol., No.84

  • 1.

    Significance of the Stipulation of the Right to Safety as Fundamental Rights in Constitutional Law - focusing on the Discussion in U.S.

    Kim Yonghoon | 2019, (84) | pp.1~36 | number of Cited : 5
    Many accidents and disasters happened in our society are raising the overall concern about risk management and deepening its focus on more fundamental measures against risks. Actually our interest in safety has recently been growing by degree. Of course, it is reasonable to argue that the state is obliged to devote itself to the safety of its people. In other words, it is the obligation of a state to act for the sake of safety of the people. Thus, it is necessary and desirable to discuss the safety right in terms of the status and duty of a state in the advent of society filled with the risk. However, as a result of ambiguousness of the norm, “Safety”, there has been controversy over the fact whether it is possible to stipulate the right of the safety in the Constitution. In fact, it is true that there is no overall consensus on what the right to safety means in terms of safety protection, since the state apparently do not bear the burden to protect the safety belonging to people perfectly. However, considering the revised provisions of the Constitution submitted by the government, the constitutional provisions concerning the right to safety have a substantial importance and profound implication. Therefore, it is necessary to worry more concretely about what kind of benefits can be found provided that the basic right is prescribed in the Constitution. Namely, in case that the basic right of safety is not directly prescribed in the Constitution according to the previous discussion, it is difficult to obtain the implication of specification of the states’ obligation for the sake of protection of the safety right. For those reasons, in this paper tried to find out the historical implication of the basic right for the security or safety throughout the theoretical and practical discussion on the rights to safety, and for the more specific research, it will confer to the social contract theory by Hobbes, Locke and Roussau who argue that the original obligation of a state is the protection of people’s safety. In the case of the Constitution of the Republic of Korea, it is high time to discuss the overall contents of the basic right for the safety taking into consideration of the discussion. In short, this paper focused on the practical implications and the practical benefits of the provision of the right to safety in the Constitution based on the concerned debate. In conclusion, it is reasonable to say that the fundamental right, the so-called the right to safety actually enjoys the basic status, and through the provision of the right in the Constitution, it is possible to make the degree of states’ obligation to protect the right to safety. In short, it is desirable to stipulate the right safety in the Constitution for that reason.
  • 2.

    A Study of Constitutional Court’s Decision (2011Hun-Ma659․683(consolidated)) on the Internet Game Shutdown System in Youth Protection Act - Focused on the Application of the Principle of Proportionality -

    Park Gyung Chul | 2019, (84) | pp.37~76 | number of Cited : 3
    This paper critically reviewed the Constitutional Court's decision (2011Hun-Ma659․683(consolidated)) on the Internet Game Shutdown System in the Youth Protection Act(YPA) from the viewpoint of application of proportionality principle. The Principle of Proportionality requires that the means of restricting the basic rights of citizens chosen by legislative power for public interest be in a proper proportional relationship with the purpose of restricting the basic rights. The principle of proportionality is subordinate to the legitimacy of the purpose, the adequacy of the method, the minimum of infringement, and the balance between public and private interests. Despite of its validity and logic, the proportionality principle has the problem that there is plenty of room for the judge's subjectivity or prejudice to be involved in application to specific cases, It is believed that the Constitutional Court's decision(2011Hun-Ma659․683(consolidated)) clearly shows this problem. According to the current Internet game shutdown system in YPA, all Internet games that are allowed to be used by teenagers under 16 years of age through the game grade classification system are banned from being provided and used for teenagers under 16 years of age, regardless of whether they are at risk of game addiction or addiction, at late-night, even if their parents allow them to use it. I believed the Constitutional Court judged on the basis of the conviction of the necessity of shutdown system of internet games during late-night hours that the current Internet game shutdown system in YPA meets the legitimacy of the legislative purpose, the appropriateness of the method, the minimum of the infringement and the balance of the legal interests without persuasive argument. When the Constitutional Court arbitrarily reviews whether the public power, which limit basic rights of citizens, complies with the principle of proportionality, it should be noted that the proportionality principle can be reduced to a means that justify unconstitutional restriction of basic rights made on the basis of the will or public sentiment of those in power in the name of public interest realization.
  • 3.

    Legal issues and Improvement of Elementary and Secondary Education Act in Introducing High School Credit System

    Lee, Boo Ha | Seong Keun Choi | 2019, (84) | pp.77~104 | number of Cited : 2
    The high school credit system is “a system in which students select and complete various courses according to their careers, and is accepted for graduation when cumulative credits reach the standard.” The high school credit system not only takes the amount of learning as the number of class days as a graduation requirement but also grants students the choice of subjects so as to evaluate the quality of the learning that is the achievement of each student's actual academic achievement. Therefore, expanding students’ choice of subjects is an important basic condition for high school credit system implementation. As a graduation requirement in the high school credit system, the degree to which the minimum credits will be discussed in relation to the acquisition of certain credits. If you convert the ‘unit’, which is the current study standard, into ‘credit’, it would be appropriate to set an average of 25 credit points per semester and 150 credit points as the minimum credits required for graduation. It is suggested that 30~35 credits be required for the minimum required credits and that the remaining credits should be obtained various elective subject. The high school credit system operation needs to be reconstructed according to the existing classroom system (number of classrooms, utilization rate of classrooms, number of public classrooms, size and position of public classrooms). After establishing the minimum credits for the high school credit system and the elective curriculum, it is necessary to design the school’s space structure for the high school credit system. In order to enable the students to choose the curriculum according to their aptitude and career, the school-based type (in-school, inter-school), community-linked type (out-of-school education type, they should actively support the curriculum. In order to introduce the high school credit system, the teachers must teach many subjects selected by the students. Therefore, it should be provided with additional points for double major and minor, so that students’ choice of subjects is guaranteed.
  • 4.

    Double Sale of Real Estate and the Protection of the First Buyer

    KIM SHIN | 2019, (84) | pp.105~146 | number of Cited : 3
    It is permissible for a seller of real estate to enter into double contracts for the sale of the real estate. However, it is the attitude of cases that, if the seller does not transfer the recorded title to the first buyer after receiving the intermediate payment from the first buyer and passes the recorded title to the second buyer, the crime of breach of trust is constituted. In addition, in case where the second purchaser's active participation in the seller's action, the second contract for the sale is invalid as an act against the social order set forth in the article 103 of the Civil Code, thereby protecting the first purchaser's status. This attitude does not conform to the provisions of the current Civil Code or Criminal Code and is not valid in terms of policy. First of all, the cases finding the double selling of real estate constitutes the crime of breach of trust (CBT) is based on the proposition that the nature of the crime is based on the theory of betrayal. However CBT was not enacted on the basis of the theory of betrayal. The attitude viewing that the seller is situated on the position of the person performing the buyer’s work by way of employing special relation of trust, the duty to cooperate for recording based on the theory of betrayal is not appropriate for the interpretation of CBT under the current Criminal Code. Such theory of cases not only brings in expansive interpretation of the provisions of Criminal Code but unclear result as to the relevant application of CBT. The recent en bank decision, making different conclusions in double sale of chattel and in double sale of real estate, cast a problem hard to solve. Once a real estate seller receives the intermediate payment from the first buyer, he or she cannot arbitrarily avoid the sale contract. Besides, it is not impossible or prohibited to make another sale contract and transfer the recorded title to a second buyer. It is the attitude of our civil law that ownership is transferred to one of the two buyers who completes the recording first, and the seller may pay damages to the buyer who has not obtained the ownership because of the other buyer’s completion of the recording. Nevertheless, the cases shows such attitude as guaranteeing the rights of the first buyer more than what the Civil Code guarantees, taking a harsh attitude against the seller and the second buyer threatening the seller or the second buyer with criminal punishment. Cases view that, though the double sales does not against the good public order and customs as a principle it violates the same when the second buyer actively engages in the double sales. This dose not comply with the general concept and elements of the good public order and customs generally recognized so far, and thus the reconsideration is required. Besides, the application of the theory of non-compliance with the good public order and customs results in going against the general principle of civil law because the first buyer, who is a mere creditor, prevails over the second buyer, who acquired the ownership of the real estate by completing the recording. In conclusion, the current attitude of cases have many problems in legal theory and are not desirable in view of policy and it is hoped that such attitudes should be changed in faithfully compliance with the provisions of Criminal Code and the legal theory therefor as soon as possible.
  • 5.

    A Critical Review on the Crime of Drunken Driving - Focused on the legislative improvement alternatives -

    Yun Young Suk | 2019, (84) | pp.147~176 | number of Cited : 0
    There is a high social consensus that drunk driving should be punished strongly. In response, the National Assembly passed the revision of the Road Traffic Act intensifying the penalties for drunken driving. However, this revision also does not cover the fundamental issues of the crime of drunken driving, but only focuses on strengthening punishments. This paper aims to consider problems, which may occur when analyzing and applying the current drunken driving-related law and come up with legislative proposals for improving these problems. The problems of the current drunken driving-related law are as follows. First, under the current law, drunken driving is defined as a deliberate offense. Nevertheless, in most cases, drunken driving is established even when there is only a willful recognition and this is acknowledged as criminal negligence. Second, considering the legislative purpose, the plea of mental disabilities caused by drinking must not be accepted for the crime of drunken driving, but it is not expressly stipulated in the relevant law. For this reason, there is an interpretative problem. Third, the statutory minimum sentence is excessively high, even though there is a need for harsh punishment for drunken driving. In the light of the relation with other crimes, appropriate statutory penalties must be set. In order to resolve these problems, this study suggests some legislative proposals. To begin with, in terms of the blood alcohol concentration, it is required to acknowledge the establishment of the drunken driving crime even when drunken driving takes place due to negligence, not intentionally. Also, an express legislation excluding the regulations on mitigation for mental disabilities is needed. In this regard, there is a need to consult the existing laws with similar purposes of regulations. Lastly, regulations regarding precautions for prevention, not for ex-post punishments for drunken driving must be established.
  • 6.

    A Study on the Management System of Managed Security Service Provider for Public Sector in Korea on the Viewpoint of Administrative Law

    Park Sangdon | 2019, (84) | pp.177~208 | number of Cited : 1
    Security Monitoring & Control is important for cyber security practice and there are many service providers for Security Monitoring & Control in Korea. In general, Managed Security Service Provider is a company which has the ability for security monitoring and control by detection, analysis, and response to cyber attack, and it can make business in both public and private sector. However the term ‘Managed Security Service Provider’ used in positive law in Korea means the ‘Managed Security Service Provider in Public Sector’. This paper deal with legal issues in managed security service provider under positive law, National Cyber Security Regulations and Public Notification on the Designation of Managed Security Service Provider. The former is a presidential directive and the latter is a public notification of the Ministry of Science and ICT. The current management system of managed security service provider in public sector has some matters, for example, the lack of legislation of administrative act related to people’s right and duty, the lack of article for administrative order punishment and so on. This paper reviews each matter and suggests improvement measures.
  • 7.

    Termination for Anticipatory Non-performance

    PAK HYUNJUNG | 2019, (84) | pp.209~236 | number of Cited : 1
    Korean jurisdiction recognizes that if prior to the date for performance of the contract it is clear that one of the parties will commit a breach of contract, the other party may terminate the contract. This is accepted into report of 2013 Revision of Korean Civil Law. The CISG's regulations are that threatened non-performance must be fundamental and obvious. Reasonable notice does not apply if the other party has declared that he will not perform his obligations. The PICC and the PECL are very similar in terms of the content. Both entitle the aggrieved party to terminate the contract for ‘anticipatory non-performance’, by which is meant an obvious unwillingness or inability to perform where the failure in performance would be fundamental. The effect is that for the purpose of the remedy of termination an anticipatory fundamental non-performance is equated with a fundamental non-performance after performance has become due. It is a DCFR that has been followed by a PECL. Contrary to the PICC or PECL, termination for anticipated non-performance of DCFR is similar to CISG. The CECL does not require the best of its kind in the CISG regulations. The Article 116 of CECL is compared to the Article 72 of CISG. The Clause 2 of the Article 544 of the Korean Civil Law stipulates that avoidance of contract can be made without notice. However, there is a disagreement on whether repudiation before performance is due(anticipatory breach) can be treated as a new type of non-performance. It suggests that anticipatory breach be acknowledged as a new type of non-performance by providing its legal basis. Finally, this study introduces various views on anticipatory breach expressed in the discussions on the revision of the Korea Civil Law, and suggests the direction for the revision of anticipatory breach.
  • 8.

    Nacherfüllungsanspruch und Recht zur Nacherfüllung im Gemeinsames Europäisches Kaufrecht

    Seo, Jong-hee | 2019, (84) | pp.237~264 | number of Cited : 0
    Obwohl das Gemeinsames Europäisches Kaufrecht (CESL, Common European Sales Law) in der Regel verworfen wird, wurde es weiterhin von den jüngsten europäischen Richtlinien (Entwürfen) beeinflusst. Dieser Vergleich von CESL mit anderen gemeinsamen europäischen Regeln kann eine Operation sein, die zum Zeitpunkt der Änderung des Bürgerlichen Gesetzbuchs viele direkte und indirekte Vorschläge in Bezug auf unsere Sicherheitenhaftung enthält. CESL unterscheidet sich von DCFR und anderen Vorschriften darin, dass es zwischen B2B-Verträgen und B2C-Verträgen unterscheidet. Erstens bricht CESL auf umstrittene Weise B2B-Verträge und B2C-Verträge mit Wahlrecht. Mit anderen Worten, der B2B-Vertrag hat das Wahlrecht für den Verkäufer und der B2C-Vertrag hat das Wahlrecht für den Käufer. CESL erkennt das Recht zur Nacherfüllung des Verkäufers nur in B2B-Verträgen und nicht in B2C-Verträgen an. Diese Methode ist wünschenswert, weil sie den Verbraucher mehr schützt. Es sollte jedoch berücksichtigt werden, dass der Verkäufer seine Last (Risiko) auf der Grundlage einer Preisübertragung auf den Käufer übertragen kann. Es sollte auch berücksichtigt werden, dass zu hohe soziale Kosten entstehen können.
  • 9.

    A Study on the Normalization of the Lawyer Examination System in Korea

    BAEK KYOUNGHEE | CHANG YEONHWA | 2019, (84) | pp.265~296 | number of Cited : 1
    It has been 10 years since the judicial examination system has been replaced by the system of the lawyer examination system. In order to avoid the problem of the judicial examination, which had been criticized for mass production of test takers, the lawyer examination under the law school system restricts the number of retries. As for the testing method, sentence hypotheticals and real case type problems that integrate various subjects. The purpose of this study is to examine whether the lawyer examination system in Korea is in conformity with the purpose of establishing the law school system. The questionnaire was administered to 100 lawyers graduated from law schools. The questionnaire consisted of the relationship between the law school education and the lawyer examination, the validity of lawyer examinations, and the use of lawyer examinations in the practice of law. As a result of the survey, it was confirmed that students with various undergraduate majors are entering the law school. However, the test subjects useful in the practice of law were concentrated on specific subjects, and in the case of “special subjects in the field of law” were not consistent with the professional field of lawyers who entered the market. The result of the survey is only a sample of some, but the result confirms that it is necessary to revise the examination subjects and the relative importance of such subjects to normalize the lawyer examination system.
  • 10.

    The Availability of Smart Contracts in M&A Transactions

    KIM, Beom Joon | Lee, Chae-Yul | 2019, (84) | pp.297~324 | number of Cited : 0
    Korea is one of the countries with low number of M&A transactions compared to major foreign countries, and large companies have consistently participated in the M&A market through mergers and cross-boarding M&As, but small and medium enterprises have been excluded from the M&A market in Korea and abroad. The reason for such sluggish M&A transactions among small and medium-sized companies is that, first of all, they lack information skills and expertise relative to their larger counterparts. Second, the M&A process is time-consuming and costly. In fact, in the case of friendly takeover, it takes at least six months to complete detailed agreements and up to a year. Therefore, participating in M&A deals at the expense of such a long time poses a great risk for small businesses. Smart contracts can be used as one of the solutions to this sluggish Korea M&A market and the problem of small and medium-sized companies entering cross-board M&A market. A smart contract is a program run within the second-generation blockchain Ethereum blockchain that creates a specific contract code and is signed directly by the parties without a middleman. Smart contracts have high transparency and reliability because they are made within the decentralized ledger. As implementation occurs upon conclusion of the contract, time and the resulting costs will also be reduced. Therefore, the use of such smart contracts in M&A deals could break down entry barriers in the Korea M&A market. This naturally helps the nation's economy a lot. However, the use of such smart contracts in M&A transactions will require the readjustment of relevant laws and regulatory regimes. Currently, Korea has no institutional foundation for smart contracts, unlike that of major foreign countries that already drew up related legislation two to three years ago. Therefore, new technologies that emerged with the advent of the fourth industrial revolution are not being utilized in the regulatory framework. Based on this, this paper discussed ways to improve the legal system related to blockchain and smart contracts in Korea and to utilize them in M&A deals, as well as various legal issues that may arise. Also, this paper identified the trend of blockchain and smart contracts legislation already in place in major foreign countries and analyzed actual use cases in M&A transactions in particular. In this regard, Korea should utilize smart contracts in M&A deals to help boost the local and corss-border M&A market and use them as a way to boost the Korea's economic growth.
  • 11.

    A Legal Review about the Security of New Types of Gift Certifications

    Jung, Youn-Hee | 2019, (84) | pp.325~346 | number of Cited : 0
    Abstract PDF
    Since the ‘Gift Certificate Act’ was abolished in 1999, there is no law for regulating the issuance and endorsement of gift certificates. Gift certificates are indirectly regulated by the standard terms. The new type gift certificates are also controled by the New Type Voucher Standardized Agreement, 2015. Depending on the type of gift voucher, they are subject to different standard terms and conditions, appropriateness and equity between paper gift certificates and new type gift certificates. It is necessary to examine whether the new type of gift certificate is neglecting the special structure and emphasizing the legal equality with the gift certificate that already have a long standing legal social practice, The purpose of this paper is to discuss the basic characteristics of the securities of the gift type of gift certificates. The new type of gift certificates started with the electronicization of gift certificates. They have been changed to an electronic card or an electronic document, but can be considered to have the same value as the paper in terms of the role and function of the gift certificates. In order to view the new type of gift certificates as the securities, there should be no problem in the legal nature of the paper type gift certificate. However the paper gift certificates without a legal basis for issuance cannot be regarded as a security according to securities legalism. With no legal basis for the issuance of the paper gift certificates, it is difficult to view new type vouchers as legal securities.
  • 12.

    Treaty-based monitoring mechanisms and the effective protection of human rights: With special reference to the necessity of introducing a collective complaints procedure within the Framework Convention for the Protection of National Minorities (FCNM)

    Jungwon Park | 2019, (84) | pp.347~376 | number of Cited : 1
    With the entry into force of the Framework Convention for the Protection of National Minorities (FCNM) in 1998, international efforts towards protecting minority rights have entered a new phase. The FCNM is an existing multilateral treaty that deals exclusively with the problem of the protection of minorities. Although the FCNM’s coverage is geographically limited to Europe, it is nevertheless a leading minority rights instrument that has greatly contributed to the shaping of international standards for the protection of minority rights under the contemporary international legal order. Bearing this in mind, this paper concerns itself with the necessity of upgrading monitoring mechanisms for compliance with the FCNM by the state parties in terms of the effective protection of minority rights. In particular, this paper raises the necessity of introducing a complaints procedure within the FCNM monitoring mechanism by drawing on the positive experiences from the operations of complaints procedures under the UN and European human rights treaty-based monitoring mechanisms. How such a complaints procedure is to be introduced and what kinds of procedures (individual or collective complaints) may be necessary are controversial issues. Introducing a complaints procedure also requires an inevitable restructuring of the roles and functions of the Advisory Committee (AC) and the Committee of Ministers under the FCNM system. This paper argues that a radical approach in this matter would be undesirable and even unrealistic in terms of achieving real progress towards upgrading monitoring mechanisms for the FCNM. More than anything else, as the title of the FCNM implies in the expression of the ‘framework convention’, there are many legal provisions within the FCNM that are purely aspirational or programmatic at best, with no direct justiciability. In other words, any attempt to introduce a complaints procedure while ignoring the embryonic state of the development of contemporary international law of minority protection would be very unlikely to succeed in the immediate future. In this context, this paper makes the point that a collective complaints procedure, rather than an individual one, would be more desirable for the protection of minority rights. Although the individual complaints procedure has many merits, this method may not be effective or relevant under the current state of international law (or European law) of minority protection. At this stage it seems more urgently necessary for the Advisory Committee (AC), which has so far played a crucial role within the monitoring mechanism of the FCNM, to possess substantial power, such as the ability to hear collective complaints. Through restructuring the roles of the AC and the Committee of Ministers as constructively as possible with regard to the operation of the collective complaints procedure, state parties to the FCNM would be under greater pressure to comply with the FCNM and thereby pursue the protection of minority rights in an effective way. Furthermore, with a collective complaints procedure, the AC could gradually deepen so-called ‘minority rights jurisprudence’ through the review of collective complaints raised by minority rights-related NGOs. Such productive efforts by the AC could provide a solid foundation upon which an individual complaints procedure might be introduced more smoothly in the long run.