Korean | English

pISSN : 2288-1840

2020 KCI Impact Factor : 0.86
Home > Explore Content > All Issues > Article List

2020, Vol.8, No.3

  • 1.

    Current Debate over Right to Litigation Representation in Japan

    Kim Jan Di | 2020, 8(3) | pp.9~29 | number of Cited : 0
    Abstract
    In Korea, certified specialists are subdivided based on work, and related laws supporting their status are respectively prescribed. However, problems related to scope of work have occurred due to overlap in duties between certified specialists and the system of automatically granting other professional qualifications for acquiring certain professional qualifications. This phenomenon has become more pronounced since the opening of law schools. Specialists in similar legal professions including patent attorneys have been asking to be granted the right to litigation representation. In recent years, their voice demanding the right is increasingly getting louder, and related revised bills of law have been proposed. For example, bills for revising the Patent Attorney Act and the Certified Tax Accountant Act have been proposed respectively, and some professions such as certified judicial scriveners are demanding the status of litigation representative for their job. It is never easy to resolve the complex and diverse disputes arising in our society with legal knowledge alone, and it seems that parties who have a stake in applicable cases might not accept such resolution based solely on legal knowledge. Therefore, it appears that there won’t be many objections to the need for using the knowledge and experience of specialists in similar legal professions such as a patent attorney and certified tax accountant. However, it is considerably difficult to decide the structure and method of using the knowledge of these specialists. Careful review is required since the interests of a lot of people are intertwined.
  • 2.

    A review of the MDP before the integration of lawyers and adjacent legal organizations - Proposal for the unification of legal organizations in Korea -

    JAI SNG PARK | 2020, 8(3) | pp.31~56 | number of Cited : 0
    Abstract
    There are many pessimistic views about the future of the domestic legal market in recent years. There are even opinions suggesting the possibility of collapse. The main reasons are the business disputes between lawyers and neighboring law firms and the entry of large U.S.-based law firms into the legal market. In addition, some point out the environmental changes in the domestic legal market (changes in legal counseling services in the A1 era and increases in legal life counselors). Modern society was subdivided and subdivided into areas as it changed into an information society requiring professional knowledge and skills. Therefore, even though there are lawyers who perform comprehensive duties in various fields, they have specialized their job areas in detail, producing professional professionals. However, the significant increase in the number of lawyers has begun to trigger conflicts between those who entered the legal profession, which had been implicitly tolerated. The direct cause was that lawyers entered areas such as business affairs and tax chiefs, which were implicitly recognized by lawyers and tax accountants as their own duties, and came to confront each other. Another major cause can be the attempt by large U.S.-based law firms to gain control of the domestic market following the opening of the legal market. The domestic legal market, which had been complacent due to the joining foreign law firm.
  • 3.

    A Study on the Participation of Judges in Judicial Administration

    Kim, Bong-Cheol | 2020, 8(3) | pp.57~83 | number of Cited : 0
    Abstract
    An independent court as a judiciary has independent judicial administrative power. The exercise of judicial administrative power by a minority can lead to abuse of judicial administrative power through judicial bureaucratization, which can damage the independence of judges and eventually undermine the public's trust in the judiciary. Therefore, it is necessary to eliminate the closeness of judicial administration and enhance the transparency and democracy of judicial administration through the participation of judges in judicial administration. The current Court Organization Act, the Judicial Disciplinary Act and the Supreme Court rules give individual judges or judges the opportunity to participate in judicial administration. The judicial administrative participation organization of such judges include Council of Judges, the Personnel Committee of Judges, National Conference of Judiciary Representatives, the Advisory Council on Judicial Administration, the Court Administration Division Committee, and the Disciplinary Committee of Judges. However, despite the significance of participation in judicial administration through the representative organization of judges, the final decision on judicial administration in principle lies with the judicial administrator, so legislative measures are needed to reflect judges' opinions on judicial administration substantially. Meanwhile, in the case of the judicial participation organizations except for the National Conference of Judiciary Representatives, the judicial administrator is allowed to concurrently serve as the ex officio chairman or chairman, or appoint or commission members. Through this, judicial administrators can exercise their influence over the judicial participation organization. Therefore, it is necessary to adopt a way in which members of the participation organization can elect mutually or elect a chairman internally. It is also necessary to adopt a method in which judges elect judges, who are members of the committee. Furthermore, it is necessary to add more judges to the judicial administrative participation organization, and it is necessary to define it in the law in consideration of the status and role of the National Conference of Judiciary Representatives. Judges' participation in judicial administration needs to be further activated, which calls for expanding judges' access to judicial administrative information and adjusting the burden on judges participating in judicial administration. Of course, such judges should also consider ways to integrate the opinions of their fellow judges and effectively reflect them in the judicial participation organization.
  • 4.

    Seeking development of Legal Tech in the AI era and Changes in the Future Legal Market

    Kim Seung Rae | 2020, 8(3) | pp.85~128 | number of Cited : 0
    Abstract
    The 4th Industrial Revolution is rapidly evolving with global IT giants changing our lives. They led the 4th industrial revolution by introducing various new technologies that fused the IT industry with existing industries such as IoT, autonomous driving vehicles, augmented and virtual reality, fintech, big data, healthcare, and bio, which are fused with artificial intelligence (AI). Doing. The legal service industry is also emerging as the head of the fourth industrial revolution, centered on Legaltech. The fourth industrial revolution based on intelligent information technology such as ICT, big data, and artificial intelligence is changing the paradigm of existing industries and services, and the legal services industry is no exception. The new business model based on intelligent information technology is breaking down the barriers of the traditional service industry, and Legal Tech is also rapidly growing by expanding the legal service market. Legaltech is a term referring to the newly created legal service industry through the combination of legal and technology, and is a field of the legal service industry for Fintech that combines finance and technology. can do. Initially, Legal Tech refers to the technology to provide legal services at the level of simple search of laws or precedents, but Legal Tech in the so-called 4th Industrial Revolution era collectively refers to all new types of legal services that utilize more advanced information and communication technologies. The meaning has been expanded. In the field of legal services, the introduction of technology has been delayed relatively compared to other knowledge service industries, but as ICT technologies such as big data and artificial intelligence have recently developed, the convergence of legal services and technologies is accelerating and creating new added value. On the supply side, increasing the burden of work by lawyers and intensifying competition within the industry, and on the demand side, expanding demand for legal services by the general public is driving industrial growth. With the growth of Legal Tech, it is expected to increase the efficiency of legal services, improve the quality of legal services, and improve the customer experience. In this paper, the current age and trend of the AI ​​era, Legal Tech, Legal Tech industry, and future laws by Legal Tech We want to seek market changes.
  • 5.

    A study on the possibility and risk of dengue fever in Korea due to climate change and the main contents and improvement measures of the 「Infectious Disease Control and Prevention Act」

    Kim Sung Ryul | 2020, 8(3) | pp.131~149 | number of Cited : 0
    Abstract
    Climate change due to the phenomena such as global warming and El Niño has caused the rising of the average annual temperature worldwide, and Korea is also affected. As a result, an environment has been created where mosquitoes that can cause dengue fever can inhabit. Dengue fever, one of the infectious diseases caused by mosquitoes, has a great risk in that it does not yet have a cure and vaccine, and the mortality rate is more than 5%. In the case of infectious diseases including dengue fever that use mosquitoes as a carrier, it would be most effective if the mosquitoes can be eradicated, but it is very difficult to realize. Because there are about 3,500 species of mosquitoes on the planet today, living in almost all parts of the world, and the breeding rate is also known to be very high, so it is practically impossible to eradicate them all. Therefore, it is necessary to investigate the actual condition of the mosquito habitats in Korea as mosquitoes are the carrier for dengue fever, to establish a quarantine system with continuous tracking and monitoring, and to strengthen quarantine procedures to block import from overseas through ships and aircraft. In addition, initial response is very important in the case of infectious diseases including dengue fever with mosquitoes as a carrier, so it is necessary to unify the management and supervisory powers currently distributed in various ministries in order to respond quickly and efficiently, and provision of regulations and system maintenance are required to this end.
  • 6.

    A Legal Consideration on Environmental Regulation and Corporate Competitiveness Strategy Focusing on the review of the Porter Hypothesis

    Choi, Yong-Keun | 2020, 8(3) | pp.151~183 | number of Cited : 0
    Abstract
    The question of how environmental regulation affects a company’s competitiveness is an old and new problem. The majority of traditional economists and industry have been accepted as environmental regulation becoming less competitive, and regulators have often sought compromises in the face of voices of regulatory opposition from this point of view. On the other hand, a few decades ago, the so-called Porter hypothesis was raised, and a certain understanding is being progressed even in the view that the environmental regulation will increase the production efficiency and competitiveness of the company, and it can be said that there is a consensus. In addition, strict environmental regulations at home not only result in overseas shifts in production activities (so-called pollution evasion hypothesis) or loss of employment, but rather, if environmental regulations are moderate, it is rather definite in this regard. This is not being derived. Therefore, this study conceptually summarizes the company’s response to environmental regulations, and then reviews empirical research on the Porter hypothesis and the pollution evasion hypothesis for the past 10 years. At the same time, we will present future research in this field. This paper focuses on the avoidance hypothesis and the porter hypothesis and introduces the empirical research results of economics on the effect of environmental regulations on corporate activities. In particular, Arimura et al., (2014) point out and presented an important issue that was not considered in previous studies on the Porter hypothesis about the relationship between environmental regulation and technological innovation. However, current hypothesis testing is based on an extremely simple analysis and does not take into account the effects of other factors, such as company size. Subsequent studies need to proceed with joint research, such as regression analysis that considers the effects of other factors, and to test hypotheses in more detail.
  • 7.

    A Basic Structure and Problems of Theory of State in Contemporary Legal Philosophy through Consideration of the Position of Freedom and Equality in Justice Theory

    Jongho Kim | 2020, 8(3) | pp.185~225 | number of Cited : 1
    Abstract
    In general, freedom and equality are trade-offs. If we place too much emphasis on freedom, the gap between individuals increases and the gap eventually becomes inequality. On the other hand, if we value equality, we will have to limit our free activities. In today’s society, it can be said that social norm is necessary because in all social problems, such as discrimination between men and women, generation gaps, education and medical systems, and welfare systems, that anyone can understand how to balance freedom and equality, and a social norm that can draw answers. This article discusses the direction of this social norm. For discussion, we will refer to the “justice theory” written by American philosopher John Rolls in 1971. Rolls’s theory of justice is the normative principle of society aiming at the balance of freedom and equality. Today, various discussions are taking place from the standpoint of advocacy and criticism by various critics. In this article, I would like to examine the desirable positions of freedom and equality based on the explanation of Rolls’ theory of justice. To this end, first, the difference between the general meaning of definition and the definition covered in the text is summarized. In addition, the background or significance of Rolls’ theory of justice is explained, and the theoretical framework of the theory of justice is presented in summary form. Next, in Rolls’ theory of justice, the central concept, the two principles of justice, the original state, and the veil of ignorance will be explained in detail. In addition, it presents Robert Nozick’s theory, mainly national theory, and the theory of power, which criticized from the standpoint of Libertarianism about Rolls’s theory of justice that has been explained so far. Lastly, I will examine Rolls and Nozick’s theory of justice through Immanuel Kant’s personality theory. Then, it concludes which definition theory is superior in terms of Kant’s interpretation. Rolls’s theory of justice is widely regarded as having received various criticisms since its publication. The reason for debating justice is that the subjects who exist as members of society in the country are personally recognized. The debate on justice is meaningful because it is possible to construct a debate in which a subject belonging to a community of members of the state and society cannot be dismissed as being a person who is differently recognized as a person. I think the purpose of exploring justice is to understand this point. Considering that their own claims are never arbitrary and that others’ claims are justified, and it is to understand that the possibility of an open society that liberates humans from certain religious and political stigma and evaluates them in the universal values ​​of freedom, equality, fairness, and justice. This function is the academic value implied by the theory of justice, and the point in the practical benefit of the discussion is that we can recognize and overcome productive and rational discussions without quarreling between differences of thought that can’t be resolved at first glance.
  • 8.

    Review of "Acts on Promoting the Utilization of Japanese Adult Guardianship" and "General Plan for Promoting Utilization of Japanese Adult Guardianship"

    Oh, Ho-Cheol | 2020, 8(3) | pp.227~250 | number of Cited : 0
    Abstract
    Japanese Acts on Adult Guardianship was implemented in April 2000, and a decade later, in 2010, it is required to have a fundamental review. There were several recipients for Japanese Adult Guardianship Act (the number of senile demented patients in Japan is approximately 10% of those aged 65 or older), but the number of recipients utilizing it was meagre. The reason behind this is that the family has psychological resistance to applying for Adult Guardianship procedures for their parents or spouses, or that without applying for Adult Guardianship, the family can virtually manage the routine property on their behalf. There is a problem of procedural burden, because of the duty to report to the court if there is a family member who becomes a guardian by applying for Adult Guardianship. Under these circumstances, through the "Yokohama Declaration" proclaimed at the first Adult Guardianship World Conference held in Yokohama in October 2010, Japan implemented the "Acts on Promoting the Utilisation of Adult Guardianship" in April 2016 and "General Plan for Promoting Utilisation of Japanese Adult Guardianship" was implemented on 24th March 2017. The main issue of "Acts on Promoting Utilisation of Japanese Adult Guardianship" reflected the aim of the "Yokohama Declaration" and have a basic ideology including "Respect for the ideology of the Acts on Adult Guardianship", "Promoting the utilisation of Acts on Adult Guardianship in response to local expropriation", and "Improving the system of the Adult Guardianship utilisation". In Addition, the use of the Adult Guardianship system intended to be promoted by requiring the government to publish the implementation status of relevant policies for improving the utilisation of Adult Guardianship system annually. In South Korea, the Adult Guardian system was implemented in July 2013, which is the eighth year. It is currently necessary to conduct a fundamental review like Japanese Adult Guardianship system, as the utilization rate of Korean Adult Guardianship system is only 1% of the total number of subject personnel to it. Thus, Won Hye-young, a member of the National Assembly in South Korea, proposed a "Basic bill on Decision-making supporting, including Guardianship" on 14th May 2019. Similar to Japanese "Acts on Promoting the Utilization of Adult Guardianship", the bill also provide a control tower and implementation subject to ensure that plans of broad national scale and support can be implemented to expand the decision support system for adults who are inadequate for decision-making skills and to enhance the public guardianship system that protects adults who cannot receive aid from their guardians. However, the bill has been discarded due to the expiration of the term of a member of the National Assembly. Therefore, this study reviewed the primary contents of Japanese "Acts on Promoting the Utilization of Japanese Adult Guardianship" and "General Plan for Promoting Utilization of Adult Guardianship" so that it can be passed by the National Assembly next time with detail revised bill.
  • 9.

    A Study on Restorative Policing - focusing on the Illegality and Responsibility Issues related to Restorative Policing -

    MoonKwi KIM | 2020, 8(3) | pp.251~279 | number of Cited : 0
    Abstract
    In 2019, the South Korean National Police Agency established a plan to promote restorative policing. And, as a concrete action program, ‘restorative dialogue' was piloted. From the first half of 2020, the program has been gradually expanded to national police departments, accelerating the establishment and institutionalization of restorative policing. If restorative policing in South Korea are successfully settled and institutionalized, it is expected to act as an alternative conflict resolution paradigm and practice in the community at the police level in the future. However, there are many challenges to be solved in order to successfully introduce and institutionalize restorative policing in South Korea. These include changing the perceptions of police officers based on traditional police activities centered on retribution and punishment, securing manpower and resources necessary for operating the system, forming consensus inside and outside the police, cooperating with other judicial and administrative agencies, and enacting legislation. This study aims to address the legal controversy that may or may not have been raised around the current restorative policing as a problem related to the formation of consensus inside and outside the police regarding restorative policing. This controversy is mainly related to the illegality of police officers' mediation efforts in criminal cases and conflicts through restorative policing, and thus the responsibility of police officers. That is, controversy is that the restorative intervention of the police is a violation of the principle of non-interference in civil relations, or violation of Attorneys-at-Law Act. Due to concerns about criminal and disciplinary responsibilities due to such legal controversy among field police officers, they can take a passive attitude toward the operation of the system, which can be a barrier to the stable introduction and development of restorative police activities. In this study the content of these legal controversies will be reviewed and a response logic will be presented.
  • 10.

    A Study on ‘Actio De in Rem Verso’ and the Right to Demand Reimbursement of Expenses based on ‘Negotiorum Gestio’ in Korean Civil Code Article 739 - Centers on Supreme Court Decision 2011DA17106 -

    Pu, Dong-Ho | 2020, 8(3) | pp.283~320 | number of Cited : 0
    Abstract
    The purpose of this study is to establish a reasonable viewpoint about ‘actio de in rem verso’ and a solution of conflict ‘actio de in rem verso’ with the Right to demand reimbursement of expenses based on ‘the management of another's affairs(negotiorum gestio)’ in Korean Civil Code Article 739. To pursue this purpose, I analyzed Supreme Court decision, 2011DA17106 case. The ‘actio de in rem verso’ is the right to claim the return of unjust enrichment to third party who received the benefit from the contractual relationship, except the parties to the contract. This is the problem about unjust enrichment in relations among the three persons. The most scholars of our country and the position of the Supreme Court of Korea argue as follows: The ‘actio de in rem verso’ should not be accepted in that it disrupts fundamental principle of contract law. But such claims are not right. There were cases in favor of ‘actio de in rem verso’ such as ‘Boudier case judgement,’ ‘Bulldozer case judgement’ in France and Japan. As a general principle of modern civil law, contract law and unjust enrichment law are systematically separated. From each of these separate systems, ‘actio de in rem verso’ occupys the position of the nature of the return of unjust enrichment claims. In this respect, whether ‘actio de in rem verso’ will be accepted or not must be judged by the general requirements of unjust enrichment. There is a problem concerning establishment of the relationship between ‘actio de in rem verso’ and right to demand reimbursement of expenses based on ‘negotiorum gestio’. Considering the fact that ‘negotiorum gestio’ has a systematic importance as an independent institution different from unfair profits in terms of requirements and effects, aforesaid two institutions can be accepted in case satisfying requirements respectively. Subsidiarity of unjust enrichment should be denyed. The Supreme Court ruled that 2011DA17106 case didn’t meet the requirements of unjust enrichment in the Supreme Court decision of 2011DA17106 case. But The Supreme Court decision should be reconsidered for acceptance of ‘actio de in rem verso’.