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2014, Vol.2, No.1

  • 1.

    Legal Status of Mongolian President

    Bolormaa Khaidav | 2014, 2(1) | pp.7~32 | number of Cited : 0
    Abstract
    There is debate about who should be considered the first President of Mongolia. The title does not actually date back to before Mongolia's democratization, but the office itself is seen as extending through Mongolia's period of communist rule. Sometimes, the Bogd Khan (seen as the reincarnations of senior lama) are seen as Mongolia's first 'presidents,' but more commonly, the title is given to the secular leaders who followed them. Balingiin Tserendorj, who was acting head of state in 1924, is sometimes seen as the first president, but it was not until Navaandorjiin Jadambaa was appointed Chairman of the State Great Khural in November that there was an official leader. Only a day later, the leadership role was reorganized as the Chairman of the Presidium of the State Little Khural (the Little Khural being the executive committee of the Great Khural). Mongolia is a landlocked country in the center of the Asian continent, located between China and Russia, sharing a western border with Kazakhstan. With an area of more than 1.5 million square kilometers and a population of 2.6 million, Mongolia has a population density of 1.5 people per square kilometer. Mongolia is classified as a developing nation. Mongolia consists of 21 provinces and the capital city. Each province is further subdivided into “soums,” and each “soum” is subdivided into the lowest administrative unit, the “bag.” The capital city, Ulaanbaatar is divided into nine districts, further subdivided into a number of “khoroo.” The president is the head of state, commander in chief of the armed forces, and head of the national security council. He is popularly elected by a national majority for a 4-year term and limited to two terms. The constitution empowers the president to propose a prime minister, call for the government's dissolution, initiate legislation, veto all or parts of legislation (the SGH can override the veto with a two-thirds majority), and issue decrees, which become effective with the prime minister's signature. In the absence, incapacity, or resignation of the president, the SGH chairman exercises presidential power until inauguration of a newly elected president. In the most recent presidential election on May 18, 1997, the MPRP candidate, N. Bagabandi, was elected with 57% of the vote.
  • 2.

    Internation Legislation and Migration Migration Subjects and Their Legal Conditions

    Solongo Amarjargal | 2014, 2(1) | pp.33~58 | number of Cited : 0
    Abstract
    Mongolia is a sparsely populated young democracy in a remote part of Asia, sandwiched between two powerful large neighbors, China and Russia. It made its transition to democracy peacefully in 1990, after nearly 70 years as a Soviet satellite state. Many nations has shown a strong interest in Mongolia' development since, through the funding of assistance programs, ratification of a bilateral investment treaty, legislation to extend permanent normal trade relations, and passage of six resolutions commending Mongolia' progress and supporting strong international society. After 70 years of Soviet political and administration culture, in 1992 Mongolia established a democratic multi-party system and began the transition from planned to market economy. A critical component of these changes was freedom of movement within the country as well as freedom to travel abroad. The past two decades has witnessed record numbers of Mongolians choosing to a move either within Mongolia or abroad with profound consequences for the political, social and economic fabric of the country. Mongolians are choosing to migrate overseas in search of higher paid jobs and a better quality of life for themselves and their families. Mongolian migrants, most of whom are male, are mainly traveling to the Republic of Korea, the Czech Republic and the United States. Official sources estimate that there are approximately 120,000 Mongolians residing abroad; however, unofficial sources in 2008 state that this figure might be as high as 250,000. At the same time as more Mongolians are traveling abroad, large numbers of people are moving within Mongolia mainly from the poorer outer provinces to Ulaanbaatar and the central region. Mongolia has a rich cultural history steeped in a nomadic way of life, however, rural poverty triggered by a combination of unemployment, low incomes, desertification and natural disasters has led to many opting to leave their traditional way of life for urban centers.
  • 3.

    A Review of the Revised Commercial Building Lease Protection Act

    Jung Soo Kyoung | 2014, 2(1) | pp.59~95 | number of Cited : 3
    Abstract
    As protection of commercial property lessee became a societal issue, the need to promote the stability of the lessee's economic situation was proposed, and the Commercial Building Lease Protection Act was enacted in 2001. Subsequent to the implementation of this act, various different forms of issues have continually been raised against disadvantages to the lessee in the commercial real estate lease contract, such as rent increase, abuse of lessor termination rights, instability of rental periods, the problem of charging high interest rates for monthly rental agreements, the non-return of rental security deposit money, and the difficulty of registering commercial buildings. But recently, this Commercial Building Lease Protection Act was revised, as follows. First, the law is now applicable to the lessee who has exceeded the leasehold deposit stipulated by the presidential enforcement decree. Second, in the situation where a part or whole of the deposit money is converted to monthly rent, a comparison is to be made against the standard interest rate as set by the Bank of Korea, for the lower rate to be applied. Third, the maximum limit of first priority default compensation for the small rent lessee category is to be upto one half the value of the rental property, as stipulated in the presidential decree, to be determined in consideration of the local economic situation, security deposit, and rent. Fourth, in case the building was leased to accomodate, or demolition or reconstruction is required due to age or safety, the lessee is granted the right to refuse renewal of the said contract. The revised law is intended, in principle, to make the Commercial Building Lease Protection Act applicable to all transactions of commmercial building rental, and its provisions exhibit a significantly increased scope of applicability. The intention of this amendment, to solve the problem of method based on the amount of security deposit, and to effect practical protections for the vast majority of commercial building lessees, through increased scope of applicability, is deemed to be commendable.
  • 4.

    Legislative Analysis on the Scope of Damage Compensation

    yim yoon-soo | 최현숙 | 2014, 2(1) | pp.97~130 | number of Cited : 5
    Abstract
    Article 393 of the Civil Code of Korea is set as the standard of determining the scope of damage compensation based on defaults and the scope of damage compensation is determined through interpretations of the same Article. Moreover, the same Article applies to damage compensation based on damage in tort, thus, the scope of damage compensation based on damage in tort is also determined by the same Article. Case law and the conventional view relating to the interpretation of Article 393 of the Civil Code have applied the proximate causation theory, which determines the scope of compensation based on the existence of causal relationship. However, new theories that criticize the proximate causation theory, the existing conventional view, and suggest new standards for the scope of damage compensation have been introduced recently. Such new theories criticize that the proximate causation theory only deals with determining the scope of compensation as an issue on the existence of a causal relationship from beginning to end, and allege that the process and result of damage compensation should be treated as an independent issue over three phases, which are the factual causal relationship as an establishment element of compensation responsibility, determination of the scope of compensation, and calculation of the amount of compensation. The legislative attitude should be correctly understood when theoretically explaining the scope of damage compensation of Article 393 of the Civil Code in order to proceed with a theory suitable to the positive law, so that such theory may comply with the positive law. Thus, this Article will review and compare the English and American law that recently has set its basis in the foreknowledge possibility legal principle, which is one principle of damage compensation, and the German, French, and Japanese law that is affecting the scope of damage compensation of the Civil Code of Korea, seek the proper interpretation and application direction of Article 393 of the Civil Code, and compose a more systematic logic to determine the scope of damage compensation.
  • 5.

    A Study on the Practice of Compulsory Civil Execution of State of California

    Jongho Kim | 2014, 2(1) | pp.131~177 | number of Cited : 0
    Abstract
    In this research I explained state of California civil execution practice and it covers mainly procedural issues regarding public auction sales. The study may be summarized as follows. The sheriff serves civil processes in the manner prescribed by law and performs civil enforcement duties with integrity and without prejudice or bias in accordance with local, state, and federal laws and statutes. The sheriff's role in civil enforcement is that of a neutral party, acting only on a lawful court order. The majority of procedures and laws governing the service and execution of civil process are set forth in the California Code of Civil Procedure. The sheriff works in conjunction with the civil courts in specific county and civil courts throughout the state of California in the execution and service of process. It is the goal of the "Civil Enforcement Bureau (CEB)" is to serve civil processes in a timely manner while maintaining an impartial position between all parties involved. All requests for service or levy must include a signed letter of instruction by either the plaintiff or his/her attorney, the appropriate number of copies and the required service fees. There are no fees for the service of restraining orders related to domestic violence, elder abuse, workplace violence and some orders involving civil harassment. Letters of instruction must be complete and include a physical address of where the service is to be made. The CEB does not conduct any investigative tactics such as stakeouts or computer inquiries (DMV, arrest records, etc.) in order to affect service. Although the sheriff provides a cost effective, credible service and successfully serves most defendants, there are many variables to consider when requesting service. Some of these variables may delay, or in some cases, even prevent successful service. In some cases, the individual the "civil detectives" attempting to serve may evade service or is not available during normal business hours. The sheriff's normal hours of service are weekdays within business hours. The civil detectives will make a minimum of two attempts on different days, at different times each day. In these cases where the subject is unavailable for service, it may be in the best interest of the party to consider the services of a private process server. The explanation in this piece only deals with California practice of civil execution. Therefore, all the contents of this papers may not be fit with some other state of U.S. jurisdiction's situation. I agree those texts are valuable and I completely respect such argument. However, the lesson of this article is the first introduction of U.S. execution system.
  • 6.

    Electronic Money Laundering In International Transactions –Focusing on the U.S. Perspective-

    Kim Sung Jin | 2014, 2(1) | pp.179~207 | number of Cited : 0
    Abstract
    The use of any payment system is associated with risks which can be physical or electronic. It is difficult to evaluate the magnitude of risks involved in using electronic money products owing to the scale and speed of the electronic transactions and the lack of a large-scale, global electronic payment system. The risks to be taken into account by consumers, financial institutions and governments include money laundering, disclosure of personal information, and fraud and counterfeiting. It is through money laundering that someone makes illegally acquired money appear as though it was lawfully earned. Individuals want and need to conceal the sources of their unlawfully acquired money to allow them to use it without restraint and the danger of loss or prosecution. Today’s emerging electronic payment system with innovative technology helps to create a world where money can be transferred without the aid, supervision, control, regulation, and limitations of third party national borders. Electronic money laundering could become a major crime if the government does not carefully monitor the situation. To minimize electronic money laundering, firstly, the U.S. need to amend anti money laundering laws to cover electronic money systems. However, amending laws alone is not enough to control and exercise jurisdiction over electronic money launderers through innovative electronic money systems. Under IMLA Act, the United States can exercise jurisdiction over foreigners who commit money laundering in United States or use U.S. financial institutions as long as international laws allow the United States to do so. However, the IMLA Act failed to address the U.S. jurisdiction over individuals who commit money laundering through the Internet and other electronic payment systems. Therefore, International cooperation in fighting money laundering is essential. The most effective method to fight against money launderers is continuous international cooperation through the United Nations, Treaties and other international organizations.
  • 7.

    A study on regulations “authority of insurance agency, etc.” of Article 646-2 of Commercial Act

    Youngkook Kim | 2014, 2(1) | pp.210~245 | number of Cited : 4
    Abstract
    Because of the fact that insurance salesmen and insurance agencies engage in mediation and represents for insurance contracts by directly meeting insurance policy holders in the process of insurance sales, they have been trusted as being considered as one party of the insurance contracts in reality. In other words, there has been an issue raised, which the salesmen and agencies have been misunderstood or confused as insurance companies or insurance agency and insurance mediation agency have been confused each other. In particular, from the perspective of insurance holder, he or she cannot clearly appreciate the relationship between an insurance procurement assistant and an insurer and the authorities of insurance procurement assistants. In addition, there has been a notion that insurance policy holders think insurance procurement assistants as a cause of increasing in-perfect sales contracts, resulting in loss for them. Despite the importance of their roles of insurance salesmen and agencies supporting successful insurance contracts made between insurance policy holders and insurers, Insurance Contract Act does not have any clauses on authorities, etc.; but Insurance Business Act has only definitions of glossaries. To solve such issues, industry insiders, academics in the insurance act, the Ministry of Justice, a competent authority, and the National Assembly have engaged in-depth consultation so as to pass the revised bill on Insurance Chapter of Commercial Act on Feb. 20th, 2014. The passage of the bill, in itself, after long consultation might be meaningful since the revision initiated in 2007 by the Government; but the views on the bill are diverse depending on their interests. Many people raised the issue that the passed bill for Insurance Chapter of Commercial Act focuses on protection of insurance policy holders rather than being loyal to insurance principles. The intention of revisers, however, lies in the protection of insurance policy holders. In this vein, authority-related clauses for insurance agencies might have room for improvement. Therefore, this Study categorizes insurance agencies into insurance contract agencies and insurance mediation agencies; and proposes to input glossaries of insurance salesman in the bill. In addition, insurance mediation agencies are similar with insurance salesman as they engage in “mediation” like insurance salesman; but insurance mediation agencies can act as an independent dealer, so that this Study proposes the authority scope of them as including rights for insurance payment taking, insurance policy publishing and notification and acceptance. In addition, this Study proposes to admit the proxy right of insurance contract making when insurance mediation agencies do not explain the rights to insurance policy holders. Pursuant to rights of insurance salesman, there is a claim to admit the right for notification and acceptance regardless of the proxy right for contract making; it is decided as being needed for additional consultation due to a lack of professionalism and risk for fraud with insurance policy holders.
  • 8.

    A Study on the improvement of Bankruptcy Supervision system on Unification Bankruptcy Law - Case of the U.S. and Japan on the basis of legislation -

    Kim,Yong-Ku | 이찬호 | 2014, 2(1) | pp.245~274 | number of Cited : 0
    Abstract
    When the debtors are in the state of bankruptcy because of insolvency or excessive debt, they are to rely on bankruptcy, debtor rehabilitation system in accordance with the current 「Debtor Rehabilitation and Bankruptcy Act.」 From beginning to end, the "Court" is in charge of every procedures and it performs most major part in bankruptcy cases. However, the judiciary who deals with bankruptcy cases are suffering from lack of experience, since they are forced to work in rotation. Moreover, the "Administration Committee" policy is suppose to ease the burden of excessive work load of bankruptcy court and audit the work of "Trustee", but practically they are subject to the bankruptcy court and does not make any independent decisions. Under the this situation, excluding chapter 1(Introduction) and chapter 5(Conclusion), this thesis are going to examine the Korean bankruptcy system in Chapter 2 and compare with other major countries' bankruptcy supervision systems such as U.S., Japan, etc. through Chatper 3. With the given information, I have seek for solution to improve our country's bankruptcy supervision system on Chaper 4. In the long-term, it is crucial to adopt "Court for Bankruptcy" policy. On the other hand, in the short-term they have to guarantee independency of the "Administration Committee." If free-standing operation of the committee is not probable, special supervisory institution should be established instead.