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2018, Vol.6, No.1

  • 1.

    A Study on the Restorative Juvenile Justice System in France - Focused on the Penal Reparation -

    MoonKwi KIM | 2018, 6(1) | pp.9~37 | number of Cited : 4
    Abstract
    In South Korea, recently, serious crimes such as group school violence, committed by young has consecutively occurred. In response to this juvenile delinquency which is more and more being violent, intellectual and which is committed by the younger, the opinion that we must enforce the punitive measures based on the retribution against the young who committed the crimes is expanded, on one hand. Contrary to this opinion, the argument insisting on enforcement of existing measures focused on the guide and protection of young on which korean juvenile justice system or insisting on introduction of more alternative measures is presenting, on the other hand. Regarding the latter argument, the juvenile justice policies based on the ideas of restorative justice are applying over the world, and their usefulness and effectiveness has been proven in criminal practice. The South Korea is not the exception of this phenomenon. In South Korea, reconciliation recommendation at the stage of youth court is legislated and implemented as a altenative mechanism relating to juvenile delinquency. However, in spite of it’s potential restorative, this korean restorative juvenile justice system has many problems which is needed to be solved. This article treats the french restorative juvenile justice system, especially the penal reparation which is considered as the representative restorative justice measure in France and which is most used in youth crime cases. The purpose of this study is to present distinctive features and contents of the penal mediation applied to juvenile delinquency and to propose the improvement plan of the actual korean reconciliation recommendation system in drawing the lessons from this french restorative measure. It’s legal base, scope of application, autonomy of parties with regard to participation to process, central operating body, penal mediation give us many implications on the development of our reconciliation recommendation system, although this french restorative justice system can be considered as nothing but imperfect restorative justice measure in strict sense.
  • 2.

    Regulations and Basic Principles of the EU on Personal Information Protection

    Lee,Hyeong Seok | 2018, 6(1) | pp.39~73 | number of Cited : 4
    Abstract
    The development of the Internet and smart devices have brought a lot of changes to human life. But the advance in technology is implicitly concurrent with issues that are linked to indiscriminate and extensive collection of personal information. The nation gathers personal information and transmits it to formulate and execute policies, but people who are the very principals of the information aren't well aware of the importance and necessity of personal information protection. Personal information is transmitted to a third country for the benefit of different countries instead of being kept in the limited place of the nation that the person belongs to. But the necessity of personal information protection is increasingly stressed as artificial intelligence is used not only in the area of manufacturing but in the area of office work and in the process of information gathering. The goal of personal information protection is to protect the right to privacy that has been developed to help individual people to protect their own privacy without being interfered by the nation or a third person. Another important thing is the guarantee of the freedom of information that is to collect and make use of information that is of use for oneself. To resolve these issues, the EU enacted laws related to personal information protection and revised them in an effort to value personal privacy and guarantee the freedom of information. The general data protection regulation of the EU that is going to take effect in 2018 aims to protect personal information from European institutions and businesses that intend to use it. Based on the regulation, the member countries of the EU stipulate national obligations for the protection of the right to privacy. The purpose of this study was to examine the transition of the laws on personal information protection and basic principles for personal information protection in the EU region.
  • 3.

    An Outlook for Possibility to Restrict Sovereign Immunity - Centering around the Italian Constitutional Court Decision in 2014 -

    Myoungjun Hwang | 2018, 6(1) | pp.75~96 | number of Cited : 2
    Abstract
    It deserves attention that the Italian Constitutional Court in 2014, inter alia, found the enactments and subsequent practices of Italy in compliance with ‘Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening)’ of 2012 to be unconstitutional, blocking the relevant legal effect. The Italian Constitutional Court based its reasoning on the ground that the right of access to justice of Italian victims in pursuit of compensation for forced labor damages caused by the Third Reich constitutes an inalienable fundamental value in the Italian Constitutional Order. The decision implies that the right to compensation attributable to the jus cogens violation must not be neglected on the pretense of sovereign immunity with procedural character. On the Italian Constitutional Court Decision, the controversy can be aroused over the relation between international law and domestic law. Even the concern on the trend of dualism may also be raised. However, the approach must be in accordance with the development of contemporary international law actually. Some consistency of abstract legal theory is rather subsidiary. It is essential for contemporary international law to protect the right of access to court in order to restore and secure human rights and dignity of the victim. In particular, the possibility to remedy by means of access to court is a last resort for the victims to be linked to their raison d’être. To sum up, the doctrine and practice of sovereign immunity need to be constantly adjusted and restricted according to the human rights friendly practice under the contemporary international law. Therefore, the Italian Constitutional Court Decision in 2014 contains a monumental work for the prevention of the abusive exercise of international legal principles.
  • 4.

    Power structure and decentralization of power of British

    Ko In Seok | 2018, 6(1) | pp.97~114 | number of Cited : 1
    Abstract
    Meanwhile, the reason for the weakened function of local councils in Korea was in view that the local councils were part of the administrative organization as part of the administrative decision-making process. The reality of these legislation for local autonomy legislation is not only limiting the authority and role of local council’s functions but also a violation of the fundamental principle of the constitution guaranteeing local autonomy. Strengthening the local council's functions by decentralization of power is demanding reinforcement of local council's autonomous authority as well as demanding strengthening the capabilities of local council official and local council member. Especially, the method to improve the effectiveness of local council's function is in the expansion of local council's autonomous authority. Recently, with the development of regional decentralization, it is required to improve the effectiveness of the local council's function by expansion of the local council's authority to realize the rights of residents by the expansion of local council's autonomous authority.
  • 5.

    Jury Trial and Hearsay Rule

    Kim, Jong Goo | 2018, 6(1) | pp.117~138 | number of Cited : 1
    Abstract
    This study focuses on the relationship between jury trial and hearsay rule. The Korean Criminal Procedure Act adopted provisions for cross-examination and hearsay rule in 1961. Hearsay rule is one of the important elements of the adversary system. In addition, Anglo-American evidence law, including hearsay rule, is a child of a Jury system. Historically, Anglo-American evidence law became necessary because there were lay jurors as fact-finders. Historically, the jury system and the adversary system have been bases for hearsay rule. The important rationale for hearsay rule is that the declarant cannot be examined. Therefore, we need to promote the adversary trial and the cross-examination for the future form of Korean style hearsay rule in the citizen participation trial. The goal of this study is directed at looking for a desirable form of future Korean style hearsay rule in the citizen participation trial.
  • 6.

    Jury Service in Korea as Education in Citizenship and Constitutionalism

    Borhanian, Shahin | 2018, 6(1) | pp.139~186 | number of Cited : 0
    Abstract
    Korea added, as a pilot program in 2008, jury trials to Korea’s amazingly effective criminal process. This paper reviews the Act on Citizen Participation in Criminal Trials, and the comparative development of jury trials in America, particularly during the late colonial and Revolutionary period, and proposes that deliberation in jury trials is affected by formal trial decorum and a quiet reticence in the traditionally peace-loving Korean people to cause emotional disturbance in others or to disagree with others, particularly their superiors in age or social standing. Jury trials provide an excellent forum for educating Koreans in empathy and the art of communication and debate, which in time will be rendered free from pressures of rank, age and other cultural network loyalties, and active involvement in the judicial decision-making process will growingly educate the public in not only the rule of law, but more importantly in the foundations of constitutionalism and the equitable doctrines of “fairness, equal treatment, and impartiality,” to give Koreans a more functional sense of human rights and citizenship in a global society. Because juries are not without their biases, there is risk to fair adjudication and the Constitutional rights of the accused posed by a lack rationality in jury sentencing, which may be averted if the presiding judges thoughtfully and critically review the juries’ sentencing recommendations for conformity with the evidence and its uniformity with prior cases, and either instruct the jury, or adjust the sentences, accordingly, as mandated by Article 27(1) of the Korean Constitution.
  • 7.

    Kangaroo Court and Deliberative Democracy - A Brief Comment on the Jury Trial and Democracy -

    Jongho Kim | 2018, 6(1) | pp.187~222 | number of Cited : 1
    Abstract
    This paper has discussed the many rationale for the argument on jury trial system. I reviewed and summarized Tocqueville’s intentions of the importance of the jury system to the democratic government, and also explored the study of the modern jury trial system that supported Tocqueville’s idea. I also briefly mentions the deliberative democracy and the movement of restorative justice, and shows that both of these intellectual positions can be found in the ideals of the many merits of Tocqueville’s identified jury trial system. At the same time, it has also pointed out that jury trial is increasingly being extinguished both in criminal cases and in civil cases in the judicial proceedings of the British Common Law more broadly than in the United States. The supporters of the jury trial system are advocating the maximization of the system that performs similar functions as the jury trial or the similar jury trial system. Likewise, groups adopting restorative justice argue that they can achieve more effective suppression of justice or crime than traditional judicial procedures. Are they all insisting that we should carry out a campaign to maintain jury and jury trial system? In this article, I pointed out that the most important function of the US jury trial was to contribute to taking the materials that make convincing the guilty answer against defendant. Likewise, it may be possible to think that our new jury system contributes to other unclear functions. For example, reformers who have challenged the functioning of the jury trial by challenging the prosecution’s monopoly of the prosecutor and by expanding the role of a lawyer seem to redistribute the balance of their merits, but even if nothing actually changes or changes I know that only a very small degree has changed. If this is true, it is a retreat for liberals who is trying to change the status of criminal proceedings that totally and capriciously handled by prosecutor. It will bring about changes in appearance, while strengthening existing power. There will be many evaluations that are more optimistic when comparing the results of the jury trial system compared with the jury trial system in the United States. Of course, the American jurisdiction and Korean type jury trial system are completely different systems. However, in terms of citizen participation in the trial, it is homogeneous. In this sense, I think that the political significance pointed out by Tocqueville can be found in the system of Korean public participation trial. In other words, I think that the system of public participation trial has the potential to become a turning point to create a new ‘public nature.’ It is the basis of democracy to have such an interest in public. However, the citizen participation trial system gives a new burden to citizens who are busy in everyday life. It is also difficult to see the Judicial Reform Commission adopting a system of Korean type jury trial system in this sublime perspective. Even so, the Korean type jury trial system that increases the number of participating in publicity is a means to reach the essence of democracy.
  • 8.

    A Review on Compliance Measures of Minimum Wage

    HoChang Roh | 2018, 6(1) | pp.225~263 | number of Cited : 1
    Abstract
    The minimum wage is the minimum cost of using somebody’s labor. In Korea, the minimum wage system has been implemented since 1988 and is a constitutional requirement speculated in the Constitution. The minimum wage is a task for establishing the order of employment and fair competition in Korea, and it is the minimum device for the protection of the right to survival for the people. Therefore, it is very important to secure the minimum wage. Currently, more than 10 percent of workers are not receiving the minimum wage, and their number is about 3 million. This can be regarded as undesirable in the reality of Korea, within the world’s 10th largest economy. The Minimum Wage Act stipulates only punishment like imprisonment or fine for violations of the minimum wage. The regulation is so uniform and extreme that it becomes impossible to effectively regulate minimum wage violations and to let employers comply with the minimum wage. So, in order to let employers comply with the minimum wage, it is required to review various measures in details including additional money and to search for an effective design.
  • 9.

    Study on Police Violation of Human Rights - Focusing on Case Interpretation -

    Kim Heon-Jin | park | 2018, 6(1) | pp.265~282 | number of Cited : 3
    Abstract
    The role of the national police in charge of maintaining public safety and order, public security institutions is high, its share accounts. It is true that there is a lot of infringement of human rights because there are many contacts with the people at the front line. The human rights violations by the police that the police are particularly problematic because it can give fatal damage to the human rights violations by the police as an institution that serves to protect the lives and property of private citizens. Police must be the guardians of human rights because the police are the first line of the constitutionally guaranteed public rights. Police 's duties are in the protection of society and individuals, and fair handling is required. The Police Act police officers to respect the freedom and rights of citizens in accordance with the Constitution and the law in carrying out their duties and keep the process as a neutral servants of the entire people, and shall not abuse the authorization.
  • 10.

    A Study on the Appropriateness of North Korean Defector Protection by Police

    이발래 | Hee Choi | 2018, 6(1) | pp.283~303 | number of Cited : 6
    Abstract
    The number of people who displaced from North Korea and settled in the Republic of Korea has increased In recent years. One of the policies to support North Korean defectors coming to South Korea is the protection center for North Korean defectors. In this regard, there is a constant controversy that the protection for North Korean defectors by the police violates freedom of movement and privacy. Therefore, in order to analyze these problems and to suggest improvements, this study examines the provisions of the North Korean defector law which stipulates the protection of defectors. It is considered that the 「Protection Guideline」 which directly defines the protection of the North Korean defectors, ends up violating the freedom of privacy of the North Korean defectors. It is also claimed that the guideline should be revised in such a way that North Korean defectors are integrated into society in an equitable way, and be openly applied.
  • 11.

    A Comparative Study on National Compensation for Judicial Action

    Kim Sung Ryul | Joung Soon Hyoung | 2018, 6(1) | pp.305~322 | number of Cited : 0
    Abstract
    Article 29 (1) of the Korean Constitution generally recognizes the liability of the state or public organization for illegal acts. In addition, Article 2 (1) of the National Compensation Act stipulates that the state or municipal governments are liable to pay damages when a civil servant or a person who is commissioned to conduct government affairs causes damage to others intentionally or by negligent act in violation of laws and ordinances, or when they are liable for compensation in accordance with Automobile Compensation Guarantee Act. However, the Supreme Court has determined that it can only recognize cases where there is a special circumstance that the judge is recognized to have unfairly exercised the jurisdiction granted to him, such as conducting the jurisdiction for illegal or unjustifiable purposes in relation to national compensation for operation of jurisdiction, and thus the scope of recognition has been interpreted in a very limited sense in reality. This Supreme Court ruling is overly restricting national compensation for judicial action. In view of the fact that there have been victims who suffered from unfair trials in our past history, and in light of the lack of reflection and apology by the judiciary, there is a need for the responsibility of national compensation for jurisdiction to be extended.
  • 12.

    Problems and improvements of the real estate lien system

    정문성 | 2018, 6(1) | pp.323~338 | number of Cited : 0
    Abstract
    The existing civil law stipulates that the possession of a lien can be established only by occupation and the scope of the establishment of the lien is too broad. And even if the lien is granted, it is also consistent with the principle that the real estate right is disclosed by register under the condition of establishment requirement The lien can claim the validity of the lien, but it is clearly different from the existing civil law. Although the Civil Law protects the lien holder at the expense of the principle of disclosure, it examines the method of minimizing the damage that can be incurred by the third party, and the lien of the lien is caused by the provisions of the acquisition order under the current civil enforcement law. In this paper, I would like to find the problems that can be supplemented without undermining the ideology of the lien.
  • 13.

    The Comparative Study of Homelessness Act

    Hong, Sae-Young | 2018, 6(1) | pp.339~368 | number of Cited : 2
    Abstract
    After IMF, the number of the homeless have been increasing, so Act of Homeless is established in Korea in 2012. Due to this Act, dual system which is separated vagabond from homeless transferred the unification of delivery system. And shelters for homeless are divided according to homeless `s function. Homeless delelvery system is more specialize and more systemize. However, this system is uncertain about de-homeless because this has short term history. So our study search for foreign cases analysis about Homeless delivery system especially England and Finland. Globally there are two model for homeless delivery system. One is Staircase Model the other is Housing First. In Staircase model, homeless service users demonstrate their ability to move from one level of accommodation to another, either as part of the rehabilitation process or by acting in accordance with the targets that have been jointly laid down. It is based on legislation and the end goal is independent living. This model are advanced in England. Housing First model is simple: provide permanent housing first, and then combine that housing with supportive treatment services in the areas of mental and physical health, substance abuse, education, and employment. Finland is famous for Housing First. The tendency of global moves staircase mode to housing first. Korea is similar to England but it is still in its beginning stages. Housing First model doesn`t match with Korea situation.