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2018, Vol.6, No.4

  • 1.

    An Examination of the System for Confirmation of Facts in US Civil Litigation Procedure focusing on the Comparison with Free Valuation of Evidence and Adversary System

    Jongho Kim | 2018, 6(4) | pp.9~55 | number of Cited : 2
    Abstract
    The researchers of the United States Litigation Act compared Anglo-Saxon legal procedures to continental law, and the most essential differences are: (1) whether the fact-finding authority is in the person of party or not and whether judge has a power to finding fact, (2) whether the litigation procedure is separated pretrial with trial or not. I have pointed out that they are divided into two parts. The idea of the clarification of the facts, especially the idea of who will be in charge of final authority and responsibility, seems to be the essential difference between the two systems. In the civil litigation model of the Adversary System of the common law, the explanation of the facts is not the role of the judge. It is what the parties do. In Anglo-Saxon civil procedures, the proceedings are under way to clarify thorough cases (facts) between the parties (agent attorneys) in the pretrial after the lawsuit is filed before trail. Confirmation of the facts as completely as possible between the parties and where the arguments on issues are narrowed down, typically verifying the fact that the jury has contention to the arguing facts and concluding with merits (verdict or case losing). The judge has power only to judge norms. Judges have decided, in principle, only legal disputes and direct jurors to make a verdict in accordance with the law. There should be divided the role between them and it can be said that a thorough division of roles is being done as the principle is that you can tell the truth and I have to tell the law. Before the trial, the parties shall have the authority to gather strong evidence and investigation and try to clarify the facts on an aggressively basis. It is a model in which the jury, rather than the judge, makes the final judgment. On the other hand, the continental legal system has the authority and the responsibility to submit arguments and evidence to the trail rather than through a jury, but finally it gives the judge the authority and responsibility to solve the case by applying the law. In Germany and other continental law jurisdiction, litigation is the state’s action for settlement of disputes, and after the lawsuit is filed, the idea that the court, the state institution, has the authority and responsibility to solve the problem and lead the settlement is flowing strongly. It is a model based on trust in the courts (judges) after the Roman law. Although the approach of the above two schemes is attempted in recent years, there is an essential difference between the two. The difference is not so much a matter of size as judges are concerned about. There is a qualitative difference in how to think about the way of fact-finding. Korea has inherited the continental law model of Germany and has built up its own system by adopting the system of the Anglo-Saxon law. In Korea’s civil lawsuits, while maintaining the continental law model, the Civil Litigation Act has been amended and efforts in practice have partially accepted the American civil litigation model, and have pursued subjective litigation activities and litigation efficiency and expeditiousness. The civil proceedings of Korea have succeeded in bringing about reasonable results to ordinary cases relatively quickly, and it can be regarded as an excellent system for hearing large-scale cases. However, the public disclosure system in Korea is insufficiently related to the type of evidence-based reconsideration, and I think it is insufficient to function as a system for the identification of facts. In general civil cases, Korean system is excellent in that it is an effective fact-finding and it is not necessary to change the framework. However, there is a problem that can not be clarified by the current system which does not have the authority to gather evidence and information given to the parties in certain kinds of evidential rehabilitation cases, and it is necessary to improve them.
  • 2.

    As a dual structure of land use regulation in the United States, the adjustment theory of covenants attached to real property rights

    Kim, Sang-Jin | 2018, 6(4) | pp.57~106 | number of Cited : 0
    Abstract
    In this paper, to get a viewpoint of legal significance of the agreement among the land owners on the land use, a basic consideration was given to the regulation of the joining area setting plan and the meaning of the adjustment of covenant in the United States. In the United States, the rule established in most of the state-level precedents, zoning, which represents public land use regulation, and covenants, which are regulating methods of private land use, exist independently of each other and are not legally related. This is acknowledged in that the use of zoning plan is embodied as the exercise of police rights, whereas the covenants are provisions of civil contracts. In addition, under this rule, stronger sanctions will eventually prevail if there is a difference between the two. Because of this, the intended use of joning plan can be virtually changed as covenants. Also, it is not recognized that the execution of covenants by local public entities nor the enforcement of the use of joning plan contrary to covenants is not illegal. The setting of zoning and covenants of the land use area are mutually independent principle, but it shows the change of the situation corresponding to the code when the court of the state changes exceptionally and refuses the execution of the code. Changes can be considered so that zoning does not have any effect on covenants in this sense. Although there is little doubt that the covenants in the United States correspond to civil contracts, it is possible to enforce successors of land under certain requirements, and that there is a academic doctrine that regulates public land use regulation. It is also very suggestive in the discussion of the legal nature of our conventions. Of course, such a form does not require the involvement of the administrative agency in the conclusion of the Covenant, nor is it believed that the enforcement of covenants to the successors of the land comes from the development of common law and equity law. Therefore, we are in a different situation from our construction agreement. In the United States, however, there is a debate that homeowners’ associations should use the same covenants as local public entities, which is similar to the administrative contract of our building agreement. From the viewpoint of covenants as a civil contract, the question of whether the conflicting civil contract and administrative contract with respect to the legal nature of a building convention is not necessarily essential. Considering that the US has a dual structure of land use regulation that has a similar function in the use area setting plan in the United States, in order to utilize the land use regulation according to the agreement between private parties, it seems that the significance of the existence of land use regulation by the national or local public entity that has been the subject of democratic control. The work to do this is to engage in the clarification of the jurisprudence that regulates land use regulation in accordance with the treaty between private parties and the interrelationship between the regulations of the state and local public entities, and whether there is a request to respect the agreement between the private parties legally and it is a precondition to examine the necessity of the same legal control over the state or local public. In this respect, it is subject to review the debate in the United States is not only about the democratic legitimacy and the point of rights protection, but also about the inclusiveness, planning, flexibility, and efficiency of land use regulation when comparing use planning and covenants.
  • 3.

    A Contemplation on Japanese Judiciary Interpretor on Foreign Criminal Cases

    An,Sung-Hoon | Yoon Hyun-seok | 2018, 6(4) | pp.107~123 | number of Cited : 0
    Abstract
    The Judiciary interpreting refers to interpretation carried out in all judiciary procedures including civil and criminal cases but generally refers to interpreting of criminal cases. The need for consideration of various legal procedural matters in criminal proceedings such as investigation of suspects and defendants, examination of witnesses, interpretations at trials, and appointment of counsel have been brought up as legal proceedings against foreign criminals is increasing. In this paper, we examine the policies of the Japanese judiciary branch as well as judiciary precedents in Japan where fairness (neutrality) and accuracy of judiciary interpreting of foreign criminal cases have been problematic. We furthermore have made three suggestion for the Judiciary Interpreting System, the first of which is the introduction of a regular selection and training system for the selection of competent interpreters, Secondly we suggest an education and certification system for the improvement of the qualification and ability of judiciary interpreters. Lastly, we suggest amendments to laws regarding the preservation and storage of original statements and their translations in order to protect the right to defense of foreigners.
  • 4.

    The Restorative Policing in Belgium - focused on Practices in Flanders -

    MoonKwi KIM | 2018, 6(4) | pp.125~147 | number of Cited : 2
    Abstract
    Restorative Justice refers to the paradigm of judicial paradigm and practice in which victims, perpetrators, and members of the community recover the damage caused by the crime through dialogue, unlike the traditional criminal justice procedures. As such, the role of restorative justice is victims, perpetrators, and members of the community, but the process also includes direct and indirect involvement by various judicial authorities such as police, prosecutors, lawyers, judges, and correctional officials. Among the criminal justice agencies, the police can play a significant role in the effective implementation of restorative justice. First, early recovery intervention at the police stage, which is the first step of the criminal procedure, can increase the possibility of attaining the goal pursued by restorative justice, such as restoration of the victim 's damage, re - socialization of the perpetrator, and recovery of relations between the parties. Second, the police are relatively more friendly to citizens than other criminal justice agencies, and they are based on the local community. Therefore, it is important for the victims, perpetrators, To participate in the restorative process. Third, the case of many countries shows that the application of restorative dispositions at the police level or by the police is successful in terms of satisfaction with the procedures and results of the stakeholders and the reliability of the police. Therefore, in South Korea, it is necessary to deepen the discussions about the realization of restorative justice at the police stage and the practical efforts to introduce it in practice. For this, it is necessary to examine other foreign cases where the restorative justice system developed at the police level. In this context, this study examines the police action based on restorative justice in Belgium, namely the practice program of restorative police activities, focusing on the Flanders area, and draws implications for restorative police activities in South Korea.
  • 5.

    A Study on the Method of Modern Redistribution based upon Constitutional basic rights: focusing on the equality of opportunity

    Hwang Jung Hoon | 2018, 6(4) | pp.151~183 | number of Cited : 2
    Abstract
    In order to build a desirable redistribution system through ‘equality of opportunity’ to resolve the fixedization of the gap between the rich and the poor with limited goods, it must be derived from the coordination and potential of common good based on freedom and individual differences. So as to find ways to realize this, we will first review the history of redistribution for the realization of social justice in a vertical manner in chronological order. Look at the limits of justice on the basis of utilitarianism, freedom in which people advocate market economy based on ‘fair’ and ‘equality’ approaches to ‘fair’ and ‘self-ownership,’ which differ from the limits of justice. Following a vertical review, we will examine modern redistribution systems in the U.S., Canada, and Sweden horizontally. Let’s take a closer look at the social situation, including the tax policies of the United States and Canada and the educational policies of Sweden that have begun to take a new path to social democracy. Modern reallocation is not a direct way of transferring income, but rather through enhancing accessibility through health care, education and other public services. Of course, direct cash payments, such as basic income schemes, are often made, but the form of use through the provision of public services is more common. This appears in reality as a form of using the services provided, but can be understood as a modern redistribution based on the fundamental rights. What sets the new redistribution system apart from the ‘third road’ taken by the European social democratic regime, represented by Britain and Sweden, is that it clearly values the good of the community and the difference between individuals. “The Third Way” is not to give away equality to quantitative measures of income disparity, but to only include equality and to eliminate inequality. The idea has something in common in that the distributed party must be able to understand the ‘reinvestment’ and that it will focus on fostering economic resources. As all mentioned, the current difficult financial situation is not easy to rebuild any income redistribution system. What are the essential factors to reconcile equality and economic growth, and how they can be implemented, should be discussed in greater depth.
  • 6.

    A Study on the principles of investigation related to the Constitution

    Kim, Yoonhong | 2018, 6(4) | pp.185~213 | number of Cited : 1
    Abstract
    Since the investigation process basically involves investigation the suspects and defendants, they are closely related to the infringement of fundamental rights guaranteed by the Constitution inevitably. Therefore, it is necessary to examine the extent to which the basic principles of investigation are followed in relation to the fundamental rights of the Constitution in the current investigation process. There are a number of regulations and systems in the investigation process. These regulations and systems serve to achieve the purpose of the investigation or to limit the investigation. The focus depends on the guiding principle of investigation. The guiding principle of investigation differs depending on the viewpoint of investigation. If the focus is on the punishment of the criminal, active substantive truth will be emphasized as a guiding principle of investigation. On the other hand, if the focus is on the guarantee of human rights, the principles of passive substantive truth, presumption of innocence, principle of investigation proportionality and Due Process of Law will be highlighted as guiding principles. As such, the investigation viewpoint is about where to place the principle of investigation, which includes a quadratic viewpoint, an inquisitorial viewpoint, and a accusatorial viewpoint. This should be examined in detail. The purpose of the investigation not only determines the direction and procedure of the investigation but also resolves the issue of human rights infringement during investigation progresses. The investigation principles of Korean Criminal Process Law include the principle of official investigation, the principle of proportional investigation, the principle of voluntary investigation, the principle of non-disclosure of investigation, the principle of compulsory investigation legalism, and the principle of warrant. In this paper, we have examined them and suggested related issues and their solutions.
  • 7.

    Study of Criminal Law on the Conscientious Objection

    Lim Jonghui | 2018, 6(4) | pp.215~233 | number of Cited : 1
    Abstract
    Conscientious objectors to the military service, to hold on their personal identity following the religious doctrine they believe, have continued insisting that their acts conform to the valid reason under the positive law, and giving them criminal punishment with no possibility of expectation to lawful acts infringes on the freedom of conscience guaranteed by the Constitution. As to this aspect, the Constitutional Court adjudicates the constitutional discordance on the Military Service Law (MSL) because it does not have any code of alternative service in Art. 5, Para. 1, which violates the freedom of conscience, even though Art. 88, Para. 1, as a current rule of criminal penalties against conscientious objectors, is constitutional. This decision of the Constitutional Court, the strongest agency of authoritative interpretation of the positive law, assigns the legal task of establishing the theory of criminal law, accompanied by some legislative improvements, which is supposed to be a theoretical foundation that imposes the national duty of military service while ensuring the freedom of conscience. This paper, as to this issue, provides the following ideas: First, the conscientious objection to military service should be regarded as ‘the valid reason that can deny the crimes of the MSL and the Reserve Forces Act (RFA)’. Second, the conscientious objection to military service should rightly be interpreted to correspond to the supralegal justification because the performers are not expected to do the legal act according to the theory of actor. Third, legalizing the regulations admitting the alternative duties is essential in the MSL and the RFA to make it constitutional for conscientious objectors to perform other services except military service to do their duties as members of the nation. Fourth, establishing the new system of alternative service wants an organization or a decision committee for alternative service where citizens and experts work together so as to provide fairness compared to service members and avoid the evasion of military service. Fifth, lawmakers should enact the rule that has an irregular period of service, meaning just short and long term according to the patterns of work such as the intensity and difficulty, etc. rather than 1.5 or 2 times more than the regular time treated while discussing a proposition of law Lastly, the alternative services, which are relatively admissible regarding the regular ones, should come to the fields related to maintaining social order and requiring the spirit of service and sacrifice, i.e. disaster response and international relief.
  • 8.

    A study on the procedure for the repayment of deposits through leasehold registration orders

    김정태 | 2018, 6(4) | pp.235~254 | number of Cited : 1
    Abstract
    The leasehold registration system by leasehold registration orders was born out of necessity for preventing the transfer of lessees' resident registrations from leading to loss of opposing power when they remove their residence as the cases that they cannot collect their deposits even though the lease of buildings ends are frequent. The system of repayment guarantee of deposits implemented by Korea Housing & Urban Guarantee Corporation (HUG) and Seoul Guarantee Insurance Company (SGI) were introduced to make lessees, the economically vulnerable, ensure the collection of deposits and stabilize their residence. And the number of tenants who use this is increasing. The above institutions give the tenants their deposits when they do not receive their guarantee deposits on leases from lessors when terms of lease expire and exercise the right to indemnity over their lessors through the system. It is the positive system in that tenants ensure their guarantee deposits on leases without inconvenience. However, tenants can receive their guarantee deposits on leases only when their leasehold registration by leasehold registration orders is completed in the process that they receive them from the above institutions according to the procedure. When tenants complete leasehold registration, their opposing power and preferential payment right acquired before are kept as they are even though their housing tenure is lost or their resident registration is moved out, but it takes one to three weeks to complete leasehold registration. There are still inconvenience and loss of lessees even by the guarantee system. After tenants report the fact that they did not receive their guarantee deposits on leases from their lessors at the same time as the termination of the periods of lease, the above institutions shall immediately paid them to them as soon as this is checked. And as the repayment bonds of guarantee deposits on leases shall be regarded as the completion of transfer of claim for the purpose of security in the above institutions, the plan that the institutions subrogate leasehold registration by leasehold registration orders is required.
  • 9.

    A Study on Injunctions as an Effect of Tort

    Yeon Hwa Jun | 2018, 6(4) | pp.255~276 | number of Cited : 0
    Abstract
    The current Civil Law provisions recognize damages and restitution as remedies after damages caused by unlawful acts because of illegal acts, but it is a method to prevent illegal acts in advance There is no general provision, but there are only provisions of the individual law by type of rights, and there is no general ground rule for legal interest infringement. However, as the society is changing and the need to protect the rights of new emerging legal rights is increasing, the necessity of provision of general grounds for the right to claim for prohibition is affirmed to the limit of individual ground rules. In the meantime, the trends of the doctrines and judicial precedents have positively recognized the necessity of the right to demand for prohibition according to the trend of the times. Especially, the effect of the illegal act in the judgment of the Supreme Court of Korea And made a breakthrough decision that broadened the scope of recognition of prohibition claims. Under these circumstances, it is appropriate that the new provisions of Article 766-2 of the amendment of the Civil Law of 2012 have complementarity with respect to the liability system for damages due to illegal acts of Article 750.
  • 10.

    A Study on the Legislation of Multi-cultural Family in Demolition

    정문성 | 김재국 | 2018, 6(4) | pp.277~294 | number of Cited : 0
    Abstract
    In the multicultural age, multicultural family support is provided for the members of multicultural families to make stable family life. The Multicultural Family Support Act provides limited protection for multicultural families. Unfortunately, long-term international students and workers are not covered by the Multicultural Family Support Act. The dissolution of a multicultural family causes suffering not only to the parties but also to the members of the family. In the following, the concept and disassembly of multicultural families are examined. Especially, dismantling of multicultural families is the main cause of the misinformation of the providers. Therefore, the law on the management of the marriage brokerage business, the terms of the international marriage brokerage standard, This deep nationality law, multicultural family support law, single-parent family support law, immigration control law is also examined.