Legal Theory & Practice Review 2021 KCI Impact Factor : 0.87

Korean | English

pISSN : 2288-1840
Home > Explore Content > All Issues > Article List

2019, Vol.7, No.1

  • 1.

    As the reason for the suspension of Extinct prescription and Litigation profit of Resignation

    Kim Seung Rae , LEE YOUN HWAN | 2019, 7(1) | pp.11~47 | number of Cited : 4
    Since the Supreme Court has the power to make a final ruling, if a party who has been awarded a preliminary injunction raises the same claim as the preliminary injunction against the other party. There is no benefit of. However, in the case of an imminent 10 year period, which is the statute of limitations due to an exceptional case, there is a cow gain for the suspension of the statute. Furthermore, in such a case, the ruling of the court shall not be contrary to the contents of the preliminary hearing of the case, and the court of last instance shall not be able to re-examine whether all the requirements to assert the established right are available. The Supreme Court has maintained the jurisprudence that rescue for the suspension of the prescription has the benefit of the cow. This is still valid now. There is no reasonable ground to limit the number of cases of toxic judgments to one, even though it is not limited to one case in the case of seizure, pressurization, or approval, which is another cause of termination. In addition, it is equitable to permit the creditors to suspend the prescription, even if the debts are determined by decision, as long as the debtor can escape from it entirely or partially through bankruptcy or regeneration. The fact that the majority of the objections of the objection allow for the resignation and the effect of the extension of the statute of limitations is given to the effect of the termination of the statute of limitations through the second request of the judgment as well as the right to enforce foreclosure etc. This is not a result of helping the creditors to abuse the jurisdiction of the creditors by obtaining the right of enforcement of the extension of the statute for the bonds which were not exercised even though they had acquired it. In conclusion, the lawsuits should be dismissed because they are the same lawsuits for which the decision to make the recommendation has been finalized. Nevertheless, there is a misunderstanding of the law on the claim as a reason for suspending the statute of limitation and the reason for existence of the statute of extinction. There is a wrongdoing that has affected the outcome of a ruling because it is illegal to misunderstand.
  • 2.

    A Note on Judicial Precedents of Administrative Law in 2018

    KIM, NAM WOOK | 2019, 7(1) | pp.49~99 | number of Cited : 0
    Theories and precedents on administrative law affect the development of law and legislation of administrative law. Among the judicial cases of various administrative laws sentenced by the Supreme Court from January to September, I will examine the trends of judicial cases with important legal and academic significance. In particular, there are four cases in the Supreme Court of the People's Republic of China in 2018. In the case of a cancellation of a disposition such as a global disposition, the Supreme Court shall not violate the obligation to obey the Constitution because the Supreme Court considers that the order and instructions are unconstitutional, The "collective action for non-military work" in the Presidential Decree of the Military Service Regulations is not a necessary procedure for requesting a claim, but a military service for a specific purpose that hinders the essence of military service, such as disrupting the discipline of military service, it said that it refers to the act of the person. In the case of a lawsuit against the dismissal of the dismissal of the dismissal disposition of the application for the establishment and operation of the dance sports institute, the Supreme Court shall comprehensively examine the content of the relevant statutes and the purpose and history of the legislation in the case of contradictions and conflicts between the related statutes, If a conciliatory interpretation is possible, the subordinate statute can not be nullified, and a person who intends to establish and operate a school that teaches the international standard martial arts is required to report it as a martial arts institute under the Athletic Facilities Act, or to register as a full the administrative office of the jurisdiction of the jurisdiction of the jurisdiction of the jurisdiction of the jurisdiction of the jurisdiction of the jurisdiction of registration or registration with the requirement of registration or refuse to refuse to refuse registration. In the case of cancellation of acquisition tax, etc. In the case of the cancellation of the acquisition tax, the Supreme Court concluded a sales contract for the real estate and paid all of the proceeds of the transaction prior to registration of transfer of ownership. If the acquirer of the acquirer is due for the transfer of ownership, the new acquisition tax liability is not established due to the acquisitions on the registration date. In such a case, the person who actually acquires the real estate fully paid for the sale proceeds in accordance with the trust agreement The transfer of ownership is completed in the name of the trustee, and then the transfer of ownership of the real estate in his own name is completed. In reviewing the Administrative Law cases of the Supreme Court, administrative law methods, administration methods (including special administrative methods), administrative damages telegrams and administrative litigation are discussed in the order of the Supreme Court case. First, even if the risk of drunken driving is high and preventive measures are necessary, the cancellation of the license for drunk drivers of the second kind of small car is not dealt with by the proportional principle, It shall judge whether the plural license is illegal by the prohibition principle. Second, the judgment of nullity of tax disposition is judged on the basis of big - name white paper. However, in order to implement tax legalism and tax definition, it is necessary to relax the jurisprudence of invalidation as a substitute for construction of economic value. Third, as the GHG emission reductions are considered to be property values, the GHG emissions are considered to be equivalent to the goods in the VAT Law. However, administrative lawsuits have recently been filed for the allocation of GHG emission rights and the legal nature of the emission rights must be clarified do. Fourth, in fact, there is a decision of unconstitutionality on the administrative legislative omission on the condition of the recognition of the training experience of the dentists completing the training course of the major, and although the considerable period of time has passed, the nationality liability for the administrative legislative omission is denied, If the intention and the negligence of the State are recognized in consideration of the obligations of the Constitution over a considerable period of time, the State shall be liable for the injustice of the administrative legislation. Finally, if you paid all of the proceeds of the transaction before the transfer of ownership due to the sale of real estate, you are actually obliged to pay the acquisition tax on the balance payment date. If you register the transfer of ownership in the name of the trustee In the case of a real estate acquisition by the name of a trustee in the case of a real estate acquisition in the name of a trustee, And the tax law should be implemented in accordance with the local tax law in relation to the establishment and timing of the acquisition tax payment duty on the trust of a third party.
  • 3.

    Establishment of mother-child relationship and Coverage of Article 1014 of the Civil Code- A Critical Review on Supreme Court Decision 2018Da1049 Decided June 19, 2018 -

    KIM SANG HUN | 2019, 7(1) | pp.101~120 | number of Cited : 3
    Notably, the Supreme Court has recently decided that Restrictions on retrospective effect of Affiliation that proviso to Article 1014 of the Civil Code states don't apply to the mother-child relationship because Affiliation is not necessary in it, therefore, based on Article 1014 of the Civil Act, the child may deny the effect of the division or disposal of inherited property by another co-inheritors of the mother through Supreme Court Decision 2018Da1049 Decided June 19, 2018 (hereinafter referred as ‘the Judgment’). It also explained that it is the same as the above conclusion even after another co-inheritors had already disposed of the inherited property, even if the mother-child relationship had been clarified by judgment on Confirming the existence of legal parentage. However, there are several questions about the Judgment. The Judgment evaluates Article 1014 of the Civil Act and Article 860 of the Civil Code concerning the effect and restrictions of Affiliation in conjunction. However, it is necessary to scrutinize the purpose of legislation stipulating the 'determination of the trial' in Article 1014 of the Civil Code and in particular, Article 1014 of the Civil Code also applies to 'other dispositions' as well as the division, so it is important to consider the safety of transactions including third parties. Nevertheless, the Judgment decided that "the determination of the trial" and Affiliation are the same concerning the mother-child relationship without legal principles, so I'm sorry that it could not look at Article 1014 of the Civil Code from a point of view different from Article 860 of the Civil Act. In addition, establishment of mother-child relationship of modern society is not as clear as that of father-child relationship. So ruling that "establishment of mother-child relationship had been clarified through trial, but Article 1014 of the Civil Act did not apply to it" is a passive interpretation of lowering the utilization of Article 1014 of the Civil Code and approaching the field of parenthood from a somewhat conservative perspective. Therefore, it is reasonable to claim for payment without distinction between mother-child relationship and father-child relationship, unless there is cause of invalidation or cancellation of division or other disposal.
  • 4.

    A Study on the Abuse of Representative Power and the Completion Point of Breach of Trust(Crime) - the Per Curiam Decision of the Supreme Court 2014Do 1104, announced July 20, 2017 -

    Seungeun Song | 2019, 7(1) | pp.121~149 | number of Cited : 1
    Breach of trust is established by a failure to act responsibly for someone who has given duty and acquire the property benefit himself or by letting a third party acquire property benefit as a result establish damage for himself (Article 355(2) of the Criminal Act). Supreme Court has been ruled that ‘the risk of actual harm’ is included in ‘property damage’ in the breach of trust cases consistently. If the breach of trust(crime) is comprehensively examined, it is difficult to become completion point at the stage when the profit or loss is not specified. It is inevitable legal instability due to the expansion of ‘dangerous beings’(concrete dangerous beings) that are not stipulated in the regulation of the criminal law. To limit the punishment of corporate management, only the actual damage is to be recognized as a crime. According to the majority opinion of Supreme Court decisions, when a person has to bear the legal responsibility because of special circumstances, such as when promissory notes are invalidly issued but the promissory notes are nevertheless actually distributed to a third party, the person has completed breach of trust regardless of whether or not his liabilities are fulfilled. However, it is legitimate to conclude that the breach of trust is established when the company actually fulfills its obligations on the promissory notes or its tort liability, regardless of whether the act of issuance is legally effective or whether the promissory notes are distributed to a third party.
  • 5.

    A Review of Systematic Synthesis Request of Constitutional Interpretation as a Norm Control

    Jongho Kim | 2019, 7(1) | pp.153~189 | number of Cited : 1
    In this paper, the sports gambling judgment and non-smoker protection law was examined as a question of the right of freedom and the requirement of the systematic synthesis of constitutional analysis, also were examined the control of the legislator’s prediction through the rationalization of value judgment or comparison judgments of judges. In order to discuss the extension of the application of the request for systematic synthesis of the constitutional interpretation, judgment on the state waste disposal law and the Harz IV decision in Germany were examined closely. The reason for introducing the notion of interpretation that is appropriate to the constitutional system distinguished from the constitutional interpretation in this paper is not a matter of simple classification, but rather a form of interpretation of the statute, not whether the statute is unconstitutional or constitutional, I would like to explain that the fact that the constitutional interpretation can act in the situation has been so far. However, it is very meaningful to put a conceptual device which is appropriate to the constitutional system as a means to issue and evaluate the issue including the interpretation of the constitutional interpretation. As I have introduced in this paper, I think it is an academic achievement to review the efforts of the interpretation of the Constitution that made the action and the function of the Constitution not limited to the Constitution as a control norm in a narrow sense. However, it should be noted that the introduction of the interpretation concept appropriate to the constitutional system can only be criticized as a consideration of the Constitution in the interpretation of the ordinary law, and there is a risk that actual unconstitutionality judgment may be concealed. In addition, in relation to the harmful effects of the constitutionalization, there is a limited view of the limited scope of the interpretation that is appropriate to the Constitutional system, such as the low level of discipline or the direction of comparative sentence, it can basically be admitted that it can be judged separately whether it actually functions or not.
  • 6.

    Consideration on the Life-Sustaining Treatment Decision System

    Ryu, Gi-Hwan | 2019, 7(1) | pp.191~211 | number of Cited : 8
    The purpose of this study is based on the progress of aging and life-sustaining treatment, recognizing to make meaningless decision to stop life extension, etc. Decision making to life-saving treatment of patient at the end of life. In the course of over a year since the implementation of the Act on Decisions on Life-Sustaining Treatment, which was enacted to respect patients' self-determination and securing the best profit for the patient, prior research and National Agency for Management of Statistics of Life-Sustaining Treatment were discussed. I tried to find a problem that appeared in the process of analyzing the life extension decision method and to explore its development direction. Act on Decisions on Life-Sustaining Treatment is not only when the patient has an explicit intention, such as the Advance Statement on Life-Sustaining Treatment or the Life-Sustaining Treatment Plan, but more than one family member of the patient. This patient is usually We do not want life prolongation of life expectancy, even if there is agreement of the whole family, we can stop life-prolonging medical care. And, looking at the current status of the decision-making system of life-long medical treatment that was given in the past 11 months, it was decided based on the intention of the patient's family more when life-saving medical care was made based on the decision of the patient himself / herself If you occupy more than twice. Although such a phenomenon can be regarded as the influence of Korean culture mainly of families, it is thought that it is a false proof that complementation to make it possible to secure a patient self determination more properly.
  • 7.

    A Study on the Realization of the Self-development Rights of the Elderly in an Aging Society - Focusing on the Development of Network for Aging Friendly Cities -

    Hwang Jung Hoon | 2019, 7(1) | pp.213~240 | number of Cited : 7
    In order to effectively cope with the emergence of an aged society, an active review of the elderly's right to self-development is required. In this regard, articles 34, 4 and 5 of the Constitution governs the duties of a state to improve the welfare of the elderly and to protect the elderly who are incapable of living. The government and local governments should support the employment and income activities of the elderly, create a living environment, and clarify the right to self-development of the elderly. Based on the guidelines proposed by the WHO for the elderly to realize their right to self-development, they should enhance accessibility to urban infrastructure, enhance accessibility to leisure activities, and strive to enhance their sense of social belonging through the administrative information support system. Social participation and spatial accessibility should be enhanced in connection with the convenience of transportation means and the focus should be on generation integration through strengthening the role of senior citizens in communities. In addition, efforts should be made to realize a comfortable and safe life for the elderly, and social activities and human relations should be activated through enhanced information access. In relation to the utilization of human resources, the social participation of the elderly for active senior citizens should be promoted, and the possibility of independent life should be increased for the elderly to maintain their health life. Considering the different needs of the elderly, it will be possible to implement the self-realization of the elderly through the provision of different resources depending on the availability.
  • 8.

    Scope of Effect in Exercise of Obligee's Right of Revocation and Other Obligee's Way to Exercise his Right - with an Emphasis on Value Recompense -

    Oh Su-won | 2019, 7(1) | pp.241~285 | number of Cited : 1
    Article 406 of the Korean Civil Code stipulates that the obligee may apply to the court for the revocation of a fraudulous act and restitution of its original status, an d Article 407 stipulates that the revocation and restitution of its original status shall take effect for the benefit of all obligees. On the one hand Article 218 of the Korean Civil Procedure Code stipulates that a final and conclusive judgment shall be binding on the parties, successors subsequent to a closure of pleadings, or persons possessing the object of claims on their behalf, and another person in case of a judgment rendered to the person, who became a plaintiff or defendant for another person. By the way the provision of Article 407 means that the money or property retrieved from the beneficiary will be the general property of the obligor on which all obligees will be enforceable. because originally the obligee's right of revocation is to cover the obligor's general property .For example, if a property, sold for a fraudulous act, of which the ownership rights have been transferred to the beneficiary is restored under the obligor's name because of a judgement on the basis of the obligee's right of revocation, by the obligees' application for auction, the property will be confiscated, sold and distributed. But many authors believe that, in the case of a value recompense, an obligee exercising the right of revocation could request to pay the money to him and he could be paid directly, and that other obligees are not allowed to exercise their rights. There is no argument on that point that the obligee's right of revocation is regarded as a means of preserving the general property and preparing for enforcement, Boissonade, which laid the foundation of the Japanese Civil Code, on the effect of obligee's right of revocation, drafted the Japanese Civil Code in accordance with the French theory of absolute effectiveness, and the Japanese Civil Code Article 425 took over. Article 407 of the Civil Code stipulated the legal effect in the material law called Civil Code, apart from the subjective extent of Res Judicata in the civil procedure code. Therefore, all obligees in the Article 407 of the Civil Code in which the revocation and restitution of its original status shall take effect for the benefit of all obligees in the Article 407 of the Civil Code, should be considered to be all obligees, including all current and future obligees and beneficiaries. Because the right of revocation is not an execution in itself, the value recompense should be performed, if the obligor cannot perform the obligation in original. With the revocation of a fraudulous act, the compulsory execution for payment can be enforced in such a state. Then the beneficiary assuming a monetary obligation to the obligor, so as a compulsory execution procedure, can enforce the obligor's right to forfeit and transfer bonds to the beneficiary's obligor. The judgement of the obligee's revocation right shall be based on the general principle of forced enforcement, and in other cases the revocation obligee will be subject to a priority change if it is foreclosed and given full orders. If another obligee is to prevent a default on the revocation obligee, the beneficiary should press the obligor's future bond to return to the obligor as a remedy. The beneficiary's future bond must be pressurized to return to the obligor as a means of commercial reparation in order to prevent the priority of one of the revocation obligees. When one of the revocation obligees requests payment to a obligor against beneficiary, the beneficiary's future bond must be pressurized to return to the obligor as a normal remedy in order to prevent the former revocation obligee's priority from satisfying his the obligor. If a revocation obligee claims directly to the beneficiary for a fraudulus act, other cobligees can make a claim for the same reason, and the other obligees have no choice but to press in order to prevent a revocation obligee from fulfilling its priority. Finally, in the event that foreclosures or deposits are competing because of a number of cancelled revocation obligee and beneficiary, the beneficiary must deposit the value, which is proportionally distributed.
  • 9.

    A Study on the Partnership Establishment with the Private Sector for Improving the Efficiency of Local Government in the UK

    이봉인 | 2019, 7(1) | pp.287~314 | number of Cited : 0
    This study reveals the facts from the experience of Britain which is a pragmatic model of welfare state and pioneering practice of public - private partnership at welfare state stage in predicting this regional structure. After the Labor Blair regime, in which the Third Way (Anthony Giddens) was placed in order to overcome the market failure of the anti-welfare state in the UK, it was considered a government failure in the welfare state and the local government organizations, and at the same time, partnerships and agreements with voluntary cafe sectors have been actively promoted as private non-profit organizations. In addition, for the local renewal projects of each municipality, it is mandatory to form a partnership as a subsidy grant requirement, and most of the projects are operated through partnerships. Therefore, partnership formation has become mandatory in the later part of this article in the granting of neighborhood reconstruction funds, especially for the most deprived neighborhoods in the UK. I will pay attention to the Local Strategic Partnership (LSP) and make it clear in the case of Tower Hamlets in eastern London. Towers Hamlets has been the task of building LSPs, one of the poorest neighborhoods in London. The area has long been known as the “East End” of London and has been in a harsh living environment for many centuries, with poverty, disease and crime, as well as pollution of rivers, air pollution, noise, etc. that port workers and immigrants enter. It was also the birthplace of an innovative social movement on the issue. In response to the battle between the two, facing the efficiency of financial administration and the improvement of public services, we have been responding to how to respond to effective governance by attracting various actors from the region, including administrative organizations and private organizations, and whether they are doing it.
  • 10.

    Legal Study on the Compulsory Enforcement of Cumulative Voting in Joint-stock Company

    Shin,Jong-Seok | 2019, 7(1) | pp.317~344 | number of Cited : 3
    The Korean government made partial amendment to the Commercial Code in 1998 in order to enhance the transparency and rationality of corporate governance. Among the amendments, Cumulative Voting was introduced selectively. Cumulative Voting is a type of voting system that helps strengthen the ability of minority shareholders to elect some of the directors. It allows an individual shareholder to be able to apply all of their votes toward one candidate. It is very efficient to secure the transparency of governance by providing the board members representing minority shareholders' interest with the more opportunities to participate in the board. Because of it when the issue of "Economic Democracy" rose up, its mandatory adaptation had been discussed. However, it has faced with the sharp opposition from the corporate owners by the reason it would damage the management of corporate by interfering in the decision of making or revealing trade secrets. The supporters in compulsory enforcement of cumulative voting stress transparency of corporate governance and improvement of the board's function. The opponents in compulsory enforcement of cumulative voting claim that the board members representing minority shareholders' interest stress the interests of a particular group in addition to external leakage of corporate information and the infringement of managerial rights. This Article tries to review the discussion on the selective enforcement of Mandatory cumulative voting system of the incorporated companies and to review the legal study by studying the legislation cases in other countries.
  • 11.

    Empirical Study on Compromise Recommendation System under the Juvenile Act - Survey on Awareness of Members of Compromise Recommendation Committee concerning Administrative Condition of Compromise Recommendation System -

    Yoon Hyun-seok , Jeon Myung Gil | 2019, 7(1) | pp.345~370 | number of Cited : 3
    Abstract PDF
    This study is an empirical study on the reconciliation and recommendation system in juvenile act. The subjects of the survey were 52 persons in charge of the reconciliation recommendation system of juvenile cases in Seoul, Busan, and Gwangju Family Court. The results obtained from this study are summarized as follows. First, the members of the Reconciliation Recommendation Committee had more than 2 years of experience and less than 5 years of experience, and 10 cases were involved in helping juvenile delinquents. Second, in the survey on the satisfaction of the interview situation of the recommendation committee members, it was found that the cooperation with the parents in the interview was not performed well but the cooperation with the boys was generally good. Also, boys' reflection and repentance were higher. Third, when making the recommendation for reconciliation, the police officer 's statement, the statement of the suspect' s identity, and the statement of statements were most frequently used. The important factors influencing the consensus were crime related matters, criminal history, statement attitude, future plans of life, I think it is important to make efforts to Fourth, it was shown that the activities of the Reconciliation Advisory Committee needed education, and the contents of education included empathy for youth psychology, cause and actual condition of flight. In addition, there was a strong opinion that the operation and management of the Reconciliation Recommendation Committee should be operated independently according to the characteristics of each region. On the other hand, it seems that the current operation and management of reconciliation advisory committee needs to be operated more systematically.Finally, it was shown that the participation of experts in various fields and the workshop of the Reconciliation Recommendation Committee should be revitalized. The purpose of this study is to establish a reconciliation recommendation system to apply restorative justice to the juvenile justice system and to lay the groundwork for restorative justice in order to resolve autonomous conflicts among the parties.
  • 12.

    A Discussion on some practical issues for the coordination of rights under the Civil Enforcement Act

    김창식 | 2019, 7(1) | pp.371~391 | number of Cited : 0
    When a mortgage was established in a leasehold right, it was discussed whether the value of the mortgage was effective in the disclosure (the right to claim the dividends of the treasurer) in the auction procedure. In case of injunction of prohibition of disposition on mortgage, I also discussed whether the disposition prohibition injunction is effective on the amount of money (dividend payment right of mortgage lien) allocated to mortgagee in the auction procedure. Furthermore, in the case of foreclosure of a counterclaimed security in a mortgage, it was discussed whether the amount of the seizure effected to the mortgagee was distributed to the mortgagee in the auction procedure (the right of the mortgagee to pay dividends). If the execution claim is seized, the effect on the auction procedure and whether the seizure of the executive creditor is effective (whether the dividend is distributed to the executor creditor), if so, how to get it.
  • 13.

    A Brief View on the Enactment of Commercial Right Money

    이경준(Lee, Gyeong-June) | 2019, 7(1) | pp.393~416 | number of Cited : 7
    The premium is the transfer or the using payment of tangible or intangible value, such as sales facility·fixtures, customer, credit·business know-how, business advantage according to the location of commercial building, that a person who does business or who wants to do business in a shopping mall that is a lease object may have, which means the remuneration paid to the landlord or tenant in addition to the security deposit and the rent. The lease merchant invests huge amount of capital and efforts to build a business area where a commercial market is established and a certain profit is guaranteed. In this way, the lenders' own efforts and the least means of recovering capital are the right money. However, due to the concept formed by the practice, the legal rule was insufficient, and the majority of the lease traders were not protected by the right money. Therefore, there is a great need to protect lease merchants through studying the right money. If the tenant can not afford to keep the price on the operating profit lost through the collection of the right money, it is necessary to acknowledge the direct return of the operating facility or profits to protect the tenant's property rights. Among them, the facility investment profit can be recovered by the tenant through the right of claim for repayment of benefits and the right to purchase appendages. However, there are limitations in the current system, so it is necessary to protect the rights of tenants by improving the system. Besides, in the case of operating profit, the lessee should be able to recover by receiving the proper eviction compensation from the landlord. The compensation for eviction should be calculated in consideration of the sales amount, the type of business, the duration of the business up to now, moving expenses, and lost business hours. Compensation for local benefits may also be included in the eviction allowance if certain requirements are met. The right of the tenant to the business is protected indirectly by guaranteeing the right of the tenant to recover the right money, but in the event that it is not recognized, it would be a reasonable way to realize social equity by harmonizing the ownership of the landlord with the right of the tenant through recognizing the recovery of the direct operating profit of the tenant such as receiving the compensation from the landlord who has terminated the lease, based on his or her intention.