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2019, Vol., No.85

  • 1.

    A Study on the Establishment of University in Busan after Liberation and the Development of Education of Law and Dong-A Univ.

    LEE JONG-KHIL | 2019, (85) | pp.1~50 | number of Cited : 0
    Abstract
    This article is to study on the establishment and the changing process of university that took place in Busan after Liberation from Japanese colonial rule. The establishment of Busan Nat’l University and Dong-A Univ. was the initial start in college education at Busan and Gyeongnam province. In particular, Dong-A Univ. was not the start of Dong-A Univ. itself. It had a former Univ., that was to say ‘Namseon’ college or ‘Namjoseon Beopmunhakwon(南朝鮮法文學院)’. It became a representative university in Busan and Gyeongnam province, which launched private university education after Liberation. At that time, as for solving the local community’s desire to establish a university, a group of local public figures and U.S. military officials played an important role in the matter. Accordingly they sought to understand the confusion that has occurred in that social relations. In addition, this article aims to study the early establishment course of Dong-A Univ. and the education of law that were implemented for the first time since liberation. Namseon college, the predecessor of the present Dong-A Univ., had many problems in the school’s accreditation, which were insufficient finances, facilities and legal flaws. Therefore the school was renamed as ‘Namjoseon Beopmunhakwon(南朝鮮法文學院)’ without authorization. But in June of the same year(1946), the school was conditionally allowed to open with a one-year. In the end Dong-A univ.(President of the Foundation, Jeong Jae-hwan) undertook the Namseon college. After Jeong Jae-hwan took over (September 1946) the school, he went through a phase of re-establishment of his college education, especially law school department. This article ultimately carrys out a basic review of the actual law education of Dong-A Univ. after Liberation.
  • 2.

    Carl Schmitt’s ‘Rechtsbegriff’

    Sung Jung Yeop | 2019, (85) | pp.51~82 | number of Cited : 0
    Abstract
    In this article, I review Carl Schmitt’s concept of ‘Recht’ by analyzing his entire works. He is known for a decisionist, but his decision is a mere instrumental measure that can create order from chaos. After Hitler came to power, he emphasized concrete-order legal thinking rather than decisionism, and pointed out that a third type of legal thinking had to be added to his former distinction normativism and decisionism. Schmitt elaborated the relation between these three types of legal thinking and introduced Nomos, including decisionist and institutional elements. According to him, Nomos does not mean law in the sense of rule or Gesetz, but rather both decision and order. He also emphasized the spatial dimension of Nomos by asserting that Nomos is the unity of order(Ordnung) and location(Ortnung). Schmitt continued his inquiry into the original meaning of Nomos by distinguishing three different meanings: The first meaning is “to take” or “to appropriate”; The second meaning is “to divide” or “to distribute”; The third meaning is “to produce”. Furthermore, Schmitt’s concept of Nomos is especially relevant for international relations. He asserted that Nomos has reflected the spatial order of earth throughout the world history. According to him, the first Nomos was a pure terrestrial Nomos lasting until the 16th century. The second Nomos began with the opening of the oceans, the circum- navigation of the earth and the Conquista. This Nomos was purely Eurocentric, because European nations discovered and conquered the new world. After WWⅡ, however, this Eurocentric Nomos was destroyed and the Cold War division of the earth into East and West became the new Nomos. Schmitt foresaw two possibilities of a new Nomos. The first was a complete victory of one of the superpowers over the other and the united world. He rejected, however, this possibility from his anti-universalist standpoint. As a second possibility, Schmitt opted for a pluralistic Nomos of the earth. He did not give up hope for this new Nomos: There are gods and they reign, great is their measure.
  • 3.

    Kontrolle und Verbesserung der Begnadigungsrechte

    Hyeyoung Jung | 2019, (85) | pp.83~110 | number of Cited : 0
    Abstract
    Trotz der unterschiedlichen Regierungsformen in jedem Land gibt es die Begnadigung in verschiedenen Formen. Begnadigung nach der gegenwärtigen Verfassung ist die Befugnis des Präsidenten, die Entscheidung der Justiz aufzuheben und in die Gesellschaft zurückzukehren, ohne die Strafverfolgung derjenigen zu unterlassen, die gegen das Gesetz verstoßen haben. Es muss festgestellt werden, ob die Begnadigung fortbestehen muss, und wenn ja, was getan werden kann, um das Problem des Missbrauchs anzugehen. Es ist notwendig, die Rechtslage zu überdenken, ob eine Begnadigung gesetzlich erforderlich ist und wenn ja, ob die Begnadigung mit den Grundsätzen der Rechtsstaatlichkeit oder einem heterogenen Faktor vereinbar ist, welche Art von Begnadigung ist für jede Epoche angemessen und wer sollte Autorität ausüben. In dieser Diskussion erklären wir zunächst die Geschichte und die Grundlagen der Begnadigung(II) und betrachten das Thema des Begnadigungmissbrauchs, um zu verstehen, warum die kritische Sichtweise der Begnadigung so weit verbreitet ist (III) und um die Rechtfertigung einer solchen Begnadigung sicherzustellen. In dieser Arbeit wird ein Verbesserungsplan für Korea vorgeschlagen(Ⅳ). Die wichtigsten Faktoren bei Pisten sind Fairness und Unabhängigkeit. Daher sollte zunächst die Unabhängigkeit des Begnadignug Review Committee sichergestellt und so ausgeübt werden.
  • 4.

    The State liability in Nuclear Power Plant Incident

    Chang Ho Jin | 2019, (85) | pp.111~138 | number of Cited : 0
    Abstract
    The nuclear incident at the Fukushima Daiichi Nuclear Power Plant was occurred by the Tōhoku earthquake and tsunami on 11 March 2011. Residents evacuated from the Fukushima area filed a lawsuit against the state and The Tokyo Electric Power Holdings, Inc. for damages. The Yokohama District Court ruled in admitting of the responsibility of the state. The ruling suggests that: First, it cannot be interpreted as exempting the state's responsibility by Channelling of Liabilities. Second, it is necessary to review the reasons for the immunity of nuclear business operator. Third, It is necessary to revise amount of compensation and related system according to nuclear incident.
  • 5.

    A Study on the Co-relationship between the Duty of Utmost Good Faith and the Amendment of an Insurance Contract

    JUNG WON LEE | 2019, (85) | pp.139~168 | number of Cited : 1
    Abstract
    In principle of good faith, where knowledge or information relating to an insurance contract is ubiquitous on either party, it is necessary to ensure that the contracting party holding such risk provides the other party with sincere and honest cooperation. Thus, there is a close correlation between the duty of utmost good faith in insurance contracts and the obligation to notify under insurance contract law. In the UK, in principle, disclosure of material circumstances shall be made by the assured until the conclusion of the insurance contract, unless otherwise specified. However, the court finds that the duty of utmost good faith in an insurance contract continues after the conclusion of the contract. Although the continuation of the duty of utmost good faith is recognized after the conclusion of the insurance contract, the scope of recognition of that duty must be strictly limited. On the other hand, if the decision of the insurer in relation to the insurance contract is necessary even after the conclusion of the insurance contract, the duty of utmost good faith imposed on the insured shall be revived at any time. The insured is then obliged to faithfully provide the material circumstances necessary for the decision of the insurer. Accordingly, the UK court has inferred and applied Section 18 (2) of ‘the Marine Insurance Act 1906 (hereunder, MIA)’ on the determination of material circumstances subject to the insured's post-contractual duty of disclosure under the insurance contract. However, upon acknowledging the basis for the assured's pre- and post- contractual duty of disclosure is separated, the assured's post-contractual duty of disclosure is not consistent with the same content and intensity as the assured's pre-contractual duty of disclosure. Therefore, the assured's post-contractual duty of disclosure is limited to those required under circumstances changed after the conclusion of the insurance contract. In this case, the Korean Supreme Court ruled that “under the MIA, when amending the contents of an existing contract while the insurance contract continues, the assurd shall disclose only for matters relating to that amendment, not all material circumstances, such as the duty set forth in S. 18, shall be disclosed.” It means that the Korean Supreme Court ruling confirmed that under the MIA, the basis for recognizing the assured's pre- and post- contractual duty of disclose is separate, and that the only important matters to be notified by the assured after the conclusion of the insurance contract are those that are ‘relevant’ and ‘material circumstances’ which are ‘relevant’ to the matter in question after the conclusion of the insurance contract.
  • 6.

    Trade Law and Legal Issues on a Co-Production Agreement for Online Game Industry

    HYUNHO KWON | 2019, (85) | pp.169~196 | number of Cited : 0
    Abstract
    This study examined trade and legal issues in order to determine the availability of a co-production agreement in the Korean game industry. As a result, this study suggested as follows: First, as a legal or structural requirements of the co-production agreement, the basis for the liberalization of a game industry should be guaranteed through the specific commitment of GATS or the concession of the FTA. Second, a legal mechanism to secure the purpose of a co-production agreement. Third, there should be exemptions or reservations of MFN treatment in GATS and/or FTA depending on the existence of the MFN provision in those agreements. It also discussed whether game services can be replaced with audiovisual services in the process of applying the co-production agreement in the game industry. However, this is understood to belong to factual judgment rather than legal issue in a strict sense, and is not seen as a prerequisite for using a co-production agreement in the game industry. Thus, the followings are the practical conditions for using a co-production agreement in the gaming industry: First, they should be discussed as an “integral parts” in bilateral trade agreements, such as the Korea-EU FTA, and second, a co-production agreement should be signed as part of the FTA. However, even in this case, the discussion on exemption of the MFN treatment should be held together for the essential purpose of a co-production agreement. In addition, for a practical purpose, a co-production agreement in the game industry should be an agreement that excludes the features of an agreement for cooperation as possible and shares practical benefits through specific rights and obligations.
  • 7.

    A Critical Review on the 1951 San Francisco Treaty by Comparison with the 1919 Versailles Treaty

    Kim Sung Won | 2019, (85) | pp.197~222 | number of Cited : 0
    Abstract
    The development of international law goes hand in hand with major peace treaties. Major peace treaties have been making a huge contribution to restoring peaceful conditions of international society by suggesting a blue print containing effective mechanism for peaceful relationship among states. Contrary to classical peace treaties which are marked as a generous peace treaties for aggressors. the 1919 Versailles Treaty takes a revolutionary position towards aggressor, Germany. Imposing territorial redistribution of German territory and the responsibility of war on Germany, the 1919 Versailles Treaty unequivocally shows its will to punish Germany for her violation of international law. This revolutionary character of modern peace treaty is faded away when the 1951 San Francisco treaty is concluded. The 1951 San Francisco Treaty also has articles concerning territorial questions, these articles have indefinite scope and range of territories which Japan should return to her victimized states, such as Korea and Taiwan. Also, the 1951 San Francisco Treaty does not have any article with regard to the punishment of Japan for her aggressive actions. In this respect, the 1951 San Francisco Treaty would be regarded as the epicenter of the continuing territorial disputes between Korea and Japan with special reference to the Dok-Do. For highlighting its backwardness of the 1951 San Francisco Treaty and revealing hidden aspects of Western-oriented imperialism, a critical review on the 1951 San Francisco Treaty would provide a helpful argument for claiming Korean sovereignty over Dok-Do.
  • 8.

    A Legal Study on Introduction of Psychiatric Part in Worker Medical ExaminationⅡ: Implications for Article 26-2 Occupational Safety and Health Act “Preventive measures against health hazards caused by verbal abuse by customers”

    Son Mi Joung | 2019, (85) | pp.223~248 | number of Cited : 0
    Abstract PDF
    Last year, the establishment and enforcement of Article 26-2 「Occupational Safety and Health Act」 “Preventive measures against health hazards caused by verbal abuse by customers” provided the protection system for so-called “emotional labor workers,” which has been discussed in the labor industry. Due to the nature of work, labor with emotional control is significantly more likely to result in mental and physical health injuries of the worker compared to other forms of labor and even lead to disasters such as suicide. Under this Act, employers' protection measures are specifically defined as precautionary measures before the occurrence of a health disorder and ex post protection measures after the occurrence of a health disorder. However, this article focuses on the elimination of harmful and dangerous factors that cause health problems. So, there are limitations such as that we can only rely on the employer's duty to protect the company and such as the inability to cover the protection of all workers who engage in emotional labor. Therefore, in terms of guaranteeing the right to health of workers pursuant to this Act, it is necessary to has strengthened the health screening system on the 「National Health Insurance Act」 and to characterize the ‘worker’ mental health protection system on the 「Occupational Safety and Health Act」 to supplement the legal limitations of the current emotional labor protection law.