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pISSN : 2288-1840

2020 KCI Impact Factor : 0.86
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2020, Vol.8, No.1

  • 1.

    Citizen Participation in Criminal Investigation

    Han, Min Kyung | 2020, 8(1) | pp.9~31 | number of Cited : 0
    Abstract
    Given that the criminal justice process first begins with the police investigation, there is a great need to secure accountability and transparency through citizen participation. In this regard, the article focuses on reviewing the current status of citizen participation system in the Korean criminal investigation. Citizen participation schemes that has been recently expanded or under discussion for introducing in the criminal investigation phase since 2018 ― exclusion/recusation of a police investigator and/or avoidance to a investigator, using self-advocacy note during investigation, and criminal public defender in particular ― are considered positive in that they lead citizens to be active and autonomous as ‘parties’ of the criminal investigations and proceedings. For ensuring that citizen participation in the criminal investigation process has an effective meaning, it is recommended to expand the participation of ‘ordinary’ citizens into those schemes, to assess continuously and regularly the schemes' implementation, to gather opinions from the investigation field, and to raise awareness and understanding of the schemes among both police investigators and citizens.
  • 2.

    A Study on the Control of Police Authority and the Securing Neutrality by the Adjustment of Investigation Authority

    Jeon Myung Gil | 2020, 8(1) | pp.33~54 | number of Cited : 1
    Abstract
    The criminal process should be carried out faithfully with the discovery of the truth, but the prosecution, which monopolized the right to investigate and indict, left unfair cases and abuses of authority. There have been constant discussions on reform of the prosecution, but since the direction of the prosecution's reform has been geared toward the method of self-regulating authority through internal reform of the prosecution, practical limitations have been revealed. As a result, the incumbent administration has decided to reform the powerful agencies as its national agenda and is actively carrying out discussions on reforming the investigative structure, including the adjustment of the investigative authority. The main direction of the investigation structure reform should be in controlling the authority of investigative agencies and securing political neutrality, and it should not come as a result of weakening the power of the prosecution through the reform of the current investigation structure, while giving birth to a huge police force. When it comes to reforming the investigation structure, it is the political neutrality of investigative agencies that should be done with checks and balances caused by the dispersion of investigative powers. The investigative authority of the state police should be reduced by separating the administrative police and the investigative police, and by introducing the autonomous police system, transferring the investigative power of the general crime to the autonomous police. In addition, the police should be able to fulfill their roles according to their authority by strengthening their investigative capabilities and securing professional investigation personnel. Now, the issue of investigative structural reform is not just a stage of discussion but a stage of realization. A firm legal and institutional control system should be in place to move the investigation structure reform toward guaranteeing the human rights of the people. At the same time, the police should also improve their perception so that they can be reborn as responsible police suitable for the new investigative environment.
  • 3.

    A Study on the Missing Persons Finding Process Using External Networks

    Lee Keon Su | 2020, 8(1) | pp.57~72 | number of Cited : 2
    Abstract PDF
    In order to find missing persons, a social network should be established, such as sharing information for discovery of missing persons in cooperation with related organizations, and joint action should be taken to prevent and detect disappearances. If you look at the contents of the agencies that should be linked, you can find missing persons by linking the resident registration photo information (already linked with personal information) and family relations register of the Ministry of Public Administration and Security, and you can find the missing persons, The elderly with dementia (health center integrated information system), information on the disabled, etc., and information on the "integrated management network" (domestic and foreign adoptees) for managing adopted child information of the Central Adoption Information Center. According to Article 8-2 of the Act on the Protection and Support of Missing Children (Establishment and Operation of Information System for Reporting and Discovery of Missing Children, etc.), the Director of the Police Agency shall provide the information system (hereinafter referred to as " Information system "). In order to promptly find missing children, etc. it is necessary to establish and operate information system in connection with social welfare work related information system constructed and operated in accordance with Article 6-2, Paragraph 2 of the「 Social Welfare Business Act 」 It is stated that the system can utilize the contents of personal information such as the missing child possessed by the system. It is necessary to construct a missing data big profiling system which is a comprehensive support system for finding missing persons and conduct scientific analysis and tracking. Therefore, it is necessary to establish a portal to find missing persons on the Internet and to find missing persons through consultation, provision of missing report contents, and provision of information on missing prevention sites. In order to upgrade the missing data big profiling system, it is necessary to improve the process such as building a face recognition system suitable for Korean body type, simplifying the disappearance case processing, automatic text transmission of progress, and advanced integration search for missing persons. Sharing should be done.
  • 4.

    Effect of cy-près Principle on Trust Law - O’Keeffe and Stiglitz’s Inheritance -

    Jongho Kim | 2020, 8(1) | pp.73~94 | number of Cited : 0
    Abstract
    The cy-près principle is the first legal rule to appear in equity courts. French legal terminology literally means ‘close or access’ and can be translated to ‘as much as possible.’ This principle originated in the Charity Trust Act but was applied in the context of reconciliation or agreements in the US class action. The cy-près Principles, applied in England and Wales, have limited the severity of the rule that, in certain circumstances, permanent transfers are made to any situation where property disposed for the benefit of someone other than a legal heir is forfeited. Then the restriction on permanent transfer was abolished, and modern application of the cy-près Principle occurred mainly with regard to charities. For this principle, which is permitted under Anglo-Saxon law, is the most important principle in maintaining general public purposes, not private interests in trust relations. The Charity Committee of England and Wales has the legal authority to apply the cy-près Principles on behalf of charities if no custodian remains on behalf of the charity or if the necessary delegation cannot be agreed. This power extends to corporate charities or non-corporated associations to which the common law rules do not apply. The cy-près Principle does not apply if the charity has the alternative authority to reassign trust assets under the by-laws. In the jurisdictions (or in relation to the UK’s foreign charity assets) that the UK retained the cy-près Principles but did not have the same identity as the UK and Wales Charitable Commissions, the Charity Committee later relied upon the cy-près Principles entered into an agreement. In the United States, there is a Uniform Trust Code (“UTC”), a model code that can be used to resolve disputes in various jurisdictions. UTC explains that cy-près applies only to charitable trusts for which the original specific trust objectives are impossible or impractical, and that the trust conditions do not specify what should happen in such circumstances. In part, UTC applies the cy pres principle to be consistent with “the purpose of the Setter’s Charity, in order to modify or terminate the trust,” where a particular charity becomes illegal, impracticable, unattainable or wasted. However, UTC does not allow the court to apply the cy-près Principle to courts, including charities, if the provisions of the terms of the charitable trust allow the trust property to be distributed to beneficiaries of the trust. It also cannot be used to violate the rules of perpetuity. UTC also includes the cy-près principle on trusts where charity is no longer possible. The court stipulates that if an amendment or termination further develops the purpose of the trust due to circumstances beyond the court’s expectations, the court may amend the administrative or dispositional conditions of the trust or terminate the trust. This study examined the effect of the cy-près principle on the Trust Act in cases where the O’Keeffe and Stiglitz heritage was established as a trust, but later changes were made to breach trust term.
  • 5.

    A Consideration of Legal Regulation of Fake NewsA Consideration of Legal Regulation of Fake News

    Lee Sang hoon | 2020, 8(1) | pp.95~137 | number of Cited : 2
    Abstract
    There is a lot of social concern about fake news, and there are many debates about it. Damage due to fake news is real, and false information delivered in the form of news is not easy to recover over time. While disbelief in the media (which is not really in the news) has spread the so-called “Jirashi” distribution of information magazines, the “Jirashi” was only an interesting rumor, but could not itself be argued. Fake news - false manipulation information using the form of news - is also used as a basis for criticizing or rebutting opponents and their ideas using the credibility of the media. Such fake news is produced and distributed indiscriminately and specifically for the purpose of unjustly affecting elections in the political arena. In this paper, based on the legislation on the ongoing fake news, I examined the necessity and direction of the legal definition and regulation of fake news and discussed how our society can handle fake news. After the problem of fake news emerges, fact check activities are conducted by private companies or individuals in the form of pursuing or countering the responsibilities of SNS companies, such as Facebook, which are the sources of its spread has been made. But the effect was not so obvious. Rather, the spread of smartphones tend to increase fake news. In order to fundamentally solve this problem, media literacy is indispensable. Since the issue is closely related to the living environment of the people, the government and the traditional media should take responsibility and faithfully carry out various educational activities such as public broadcasting and classes in elementary schools. From the political point of view, whether or not to eliminate the fake news that is adversely affecting not only the health problem but also the entertainment area can greatly change the social environment in the future. In order to build a democratic and peaceful society, I believe that media literacy education, which is easy to discern authenticity, should be faced with fake news as soon as possible.
  • 6.

    A Study on the public service access opportunities of guarantee at the basic rights in sharing city

    Hwang Jung Hoon | 2020, 8(1) | pp.139~163 | number of Cited : 1
    Abstract
    As the concept of sharing of goods develops and technology advances rapidly, it is changing from a ownership-oriented economic structure to a service-oriented economic structure. The emergence of a sharing city is based on the vitalization of the sharing economy and the modernization of cities such as smart cities. In addition, as social changes such as low growth, aging, and urban decline increase, the necessity of sharing increases, and diversified consumption patterns are affecting, such as sharing rather than owning goods. In line with this trend, the pattern of modern redistribution in relation to welfare services will not be changed directly through the provision of in-kind and goods, but rather in the form of ensuring the accessibility of those who need the services in the public service sector such as health and education. It is anticipated, and indeed, that service provision is now emerging in the form of modern redistribution. The provision of such services is made through administrative actions when they are made by public institutions, but it is necessary to guarantee and strengthen the basic rights related to the use of these services in order to be legally guaranteed and to be saved.
  • 7.

    Thoughts about Revision Legislative Bill for Protection Law of Housing Lease

    Jung Soo Kyoung | 2020, 8(1) | pp.165~190 | number of Cited : 0
    Abstract
    A method of using a land or a building of other person can be divided into real right using method and receivable using method, but usually receivable method, which is lease, is used as real right using method brings limitation of ownership rights to owner of real estate. It difficult to see that one side party is unfavorable in lease contract between the owner of a land and a building and a person who lease it as a purpose of residing, but a house is an essential element for human life and it has a great effect on human life as a foothold of social live, and therefore rent and lease term are fundamental parts in housing lease when considering stability of residing is very emphasized. Protection Law of Housing Lease has been contributing to residency stability of ordinary people as deposit withdrawal regulation of tenant had revised into opposing power element, priority repayment right, top priority repayment right over 6th times until now ever since its enactment in March 5, 1981. lease period is stated as 2 years for protection of tenant under the same law, and it is protecting housing tenant by explicitly regulating automatic renewal of lease contract. However, for the case of Korea, legislation of congressperson to devise lawful and systematic supplements about the standard of rent reinforcement along with newly establishing contract renewal claim right of tenant to protect residency stability of tenant and property rights of lessor since the housing market is still unstable. In relation to this, revision process of Protection Law of Housing Lease must be revised according to situation in order to guarantee residency stability of tenant and act of property rights of lessor, and it should be revised within the limit that does not restrict rights of lessor along with protection of tenant. Since he '2 years' term being applied in the current law for claiming lease contract renewal is considered as appropriate balance that adjusted understanding between lessor and tenant, it is advisable to maintain the initial lease contract term as 2 years, guarantee contract renewal claim right in 1-year unit to minimize limitation of act of property rights of lessor, and the number of renewal should be acted within 2 times and should not exceed the maximum 4 years. Moreover, If contract renewal term is 2 years and rent increasing amount is 5% for rent increase and decrease claim as in the revision legislation bill that is being moored in National Assembly currently, then it means it is increased by 2.5% in 1 year and it limits act of property rights of lessor excessively as increase rate of rent according to indexation can't be reflected. Therefore, a method of minimizing limitation of residency stability of tenant and act of property tights of lessor is maintaining the ceiling of 5% every year in addition to allowing lease contract renewal in 1-year unit to suit reality. As bubbles in housing has gone out after global financial crisis in 2008 and leaded reduction of its supplies, it lead to soaring of lease price. The government had introduced many measures along with support on lease money as one of the measures for lease crisis but more fundamental solution is needed.
  • 8.

    A Study on the Justification and Legal Significance of the Provisional Charter of the Republic of Korea

    Nam, Je-Hyun | 2020, 8(1) | pp.191~215 | number of Cited : 0
    Abstract
    This paper examines the process of enactment of the Provisional Government Constitution and how it can be called a constitution that reflects the intention of the sovereign citizen. Then, individual article of constitution has been reviewed. The Constitution of the Provisional Government has been amended many times before its independence, but this article analysis the most important of its sources the provisional charter of the Republic of Korea enacted in 1919.4.11. The review was based on the Charter of the first edition of constitution in Republic of Korea. The provisional charter of the Republic of Korea has many shortcomings compared to today’s constitution. Above all, the limitation of the exile government, which cannot take over the land and control the people, makes the big limits of the provisional government of Korea and the provisional charter. However, it is not correct to think that the Provisional Government was simply a resistance movement to restore the land and regain national sovereignty, and that the Provisional Charter was merely a program or organizational law of the resistance. In spite of various limitations such as the provisional government of the Republic of Korea not being internationally approved, the freedom and rights of the people were drawn by drawing the blueprint of a new country to be built after the restoration of the land in the form of a liberal democratic country that escaped the existing monarchy. The Provisional Government should certainly be regarded as the establishment of a new country in that it was realized after the liberation. In the national Constitution, which can be seen as the first exercise of constitutional power in Korea, the provisional government was clearly defined as the establishment of the Republic of Korea. Above all, we should consider the provisional charter of the Republic of Korea important because it declared the democratic republican in Article 1 of the provisional charter to end the independence movement based on Restoration Theory toward monarchism and provide the opportunity for Korea to move towards democracy. Unlike the various political systems that have been on the Korean Peninsula since ancient times, the Korean Provisional Charter, which proudly declared that the people are sovereign and created a new political system that guarantees the rights of the peoples, has made Korea free and prosperous today. It can be said that it is the foundation which we made.
  • 9.

    Sports Accidents and Legal Liability - Centering around the application of the law of the acquisition of the risk of French law -

    Joung Soon Hyoung | 2020, 8(1) | pp.217~236 | number of Cited : 0
    Abstract
    A sports activity is inherently a risk inherent in the occurrence of an accident. Therefore, each competition group has been trying to prevent accidents by changing the competition rules for safety measures. For example, in the boxing world title match, the 15th game in the 1980s was reduced to 12 rounds for safety. In rugby, the rule of play governing unfair play, Article 10 (j), spear tackle falling from the upper body to the ground with opponents who were formerly considered as a reason for the existence of rugby, was imposed a strict penalty. In fact, there was a case where one Wales player with this kind of tackle was sent off in the 2011 Rugby World Cup semi-finals, before Francs vs. Wales. However, it is impossible to completely prevent accidents, even if participating in sports activities is the best effort in each position. In other words, it can be pointed out that accidents during sporting activities are inevitable risks, but the risks are not simply that the sports participants win. This is because, in the end, the victim may be able to find damages, so it may be possible to develop the risks associated with the whole sports activity participant, for example, those who manage and supervise the sporting activity. However, if you have speculated about the number of accidents during a sporting activity, there are only a few cases where claims for damages and actual disputes can be made. This is because sports are indigenous to the autonomous world, distinct from the public world, and have been passively refraining from the intervention of law in sports accidents. In addition, even in the case of an actual dispute, the offender’s actions are likely to be fragmented, and the remaining defendant’s responsibility has been limited. In this regard, it is difficult to assume that there is a sufficient level of self-responsibility for all sports participants due to the widespread popularization of sports in the recognition of civil liability these days. In France, the logic of the sport law, which is the basis of the sport legislation, compiled in 2006, shows that sport and physical activity are important elements of education, culture, national integration and social life. In particular, it is aimed at anyone who contributes to the war against school failures, to narrowing the social and cultural gap, and to maintaining health. It can also be seen that the promotion and development of sports and physical activities, especially those with disabilities, is in the public interest, and that sports activities play a public role. In addition, the social situation in these days of increasing publicity of sporting activities expands the possibility of considering the improvement of victim compensation in dispute resolution of accidents during sporting activities. In fact, the decision could be considered to be a result of the view of victim relief, with the decision to further limit the application of the law of risk taking, which gives the possibility of the exemption of the offender's liability in recent civil cases in France. It is. Moreover, the cardboard at the trial subsequently influenced the sports legislation on civil liability in accidents during sporting activities. In this study, we consider the details of this case of civil liability for accidents in sporting activities in France, with the view of the application of the law of the argument of risk.
  • 10.

    A legal review of money laundering and the regulation of international economic crimes

    Lee, Hyeon-Su | 2020, 8(1) | pp.237~318 | number of Cited : 0
    Abstract
    In this study, only the case of money laundering with tax evasion as a predicate crime is considered. However, the discussion of tax evasion and money laundering crimes usually involves tax laundering (eg, violation of the investment law) or casino (gambling guilt) as a predicate offense, such as money laundering crimes and non-reporting without reporting income. There are many cases. In the 1998 G7 Birmingham Finance Ministers' Declaration, ① STR will not be exempt from tax crimes involved, ② The MLA will provide STR information to the tax authorities to the maximum extent permitted by national legislation. This includes submitting. When money laundering and tax evasion are carried out in international locations, it is often necessary to avoid making exceptions for the application of money laundering regulations on account of this tax evasion and to encourage tax authorities to participate in financial crime investigations, including money laundering. The application of money laundering with tax evasion as a predicate offense was rarely a problem, and in fact, there were few cases of application of tax evasion as a predicate offense in foreign countries. Since this study narrowed the subject to the very small scope of ‘tax evasion premise’ in the realm of extensive money laundering crimes, how do we deal with the money laundering crimes that tax authorities should deal with? Little has been said about what should be done. However, it is necessary to examine how countries and agencies are dealing with information sharing and confidentiality obligations between government agencies and what systems and procedural laws are needed to realize multi-tasking joint investigations among other ministries. This is for future research.
  • 11.

    A Comparative Study on Confidentiality Management as a Requirement for Trade Secrets - Focusing on U.S. and Japanese laws and precedents-

    Lee, Kyung-Min | 2020, 8(1) | pp.321~344 | number of Cited : 3
    Abstract
    Operating secrets refer to information such as all methods of production, sales and other operations of a company not generally known outside the company. Because trade secrets have an advantage that is not disclosed unlike patents, companies often keep technical and management information secret. Information considered a trade secret is a product of research and development within a company that is produced by investing a lot of time and effort and provides economic advantages over competitors. The requirements for protection as trade secrets vary from country to country in accordance with legislative policy, but in common, confidential information should be generally unknown (informal) to include technical or managerial information, and business secrets should have economic value inherently (in economic usefulness), and the company should make reasonable efforts to hide information from the public (insecure). All three requirements must be met to be protected as a trade secret. However, when it comes to confidentiality, the question of what level of secrecy the holder of business secrets should manage has been constantly raised, and it is an important issue for the holder to be protected by business secrets even in the actual case of conflict. In the U.S., the Secret Service Act calls for "reasonable measures" in relation to confidentiality, and in actual cases of conflict, corporate efforts for "reasonable measures" are strictly required, and the proof is often difficult to prove, so they are not protected by trade secrets. In the case of Japan, the anti-fraud competition law requires "secret management" in relation to confidentiality and provides a standard for confidentiality management measures in the business confidentiality guidelines. In order for the confidentiality requirements to be met, it is required that the confidential management physician of the business secret holding company be clearly presented to the employee or others by the confidentiality measures, and the employee’s awareness of the secret care doctor is ensured. Although the revised Anti-Competition Act does not reach the level of an entity’s reasonable efforts for objective recognisability and access restrictions required by previous precedents, the management of trade secrets can also be acknowledged to the extent to which the target trade secrets can be perceived as confidential within or outside the entity. However, confidentiality can be considered to be negated when an entity does not specifically distinguish the entity’s general information and operating secrets and does not take any action.
  • 12.

    The Purpose of Legislation of Real Estate Right of First Refusal System and its Preservation in Civil Enforcement Practice

    Kim, Dong-Ok | 2020, 8(1) | pp.345~370 | number of Cited : 0
    Abstract
    In this paper, I reviewed the Right of First Refusal system, which has been settled as our own system. In the meantime, the problems that have been derived will need to be resolved and further improved and preserved and developed into our unique ‘priority purchase system,’ which creates and captures the desirable wave of social change by examining our traditional values, backgrounds, and ethics and moral laws. The abolition of the system as an alternative is an objection. If it can be added to the legislative improvement opinion, the legal provisions should be specified by separating and enumerating the concept of ‘special sharing relationship’ as the object of the current preferred bidder. Then, the rest of course becomes ‘general sharing relationship,’ which is based on the general sale process. In other words, the scope of the application is limited to “sharing couples, sharing denominations, sharing inheritances,” etc., with sharer relationships that are particularly safeguarded. On the other hand, it is also desirable to expand the protection targets for “community of rural and rural communities and socially communal property” (together and coalition), but more discussion will be needed. In the end, it is a legal system that breathes the times, and it is necessary to make its original good legislative purpose and to make legislative functions for social improvement and future development for human beings through the revision of the law should be the ‘role of law’ toward the human reality. something to do.