Legal Theory & Practice Review 2021 KCI Impact Factor : 0.87

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2021, Vol.9, No.1

  • 1.

    A Study on Child Abuse and its Countermeasures - Focusing on administrative investigations and police investigations -

    Ryu, Gi-Hwan | 2021, 9(1) | pp.9~33 | number of Cited : 3
    In our society, We has been making steady efforts to cope with child abuse. However, not only child abuse cases but also deaths due to child abuse continue to increase. As a result, a more systematic and reinforced policy on child abuse is being requested across society. Regarding child abuse, local governments protect victims and judicial police officers investigate abusers. Public officials dealing exclusively with child abuse of local governments do not have the authority to forcefully investigate, and judicial police officers conduct investigations to punish the perpetrator. Therefore, in order to respond more effectively to child abuse, it is possible to seek ways to grant special judicial police rights to public officials dealing exclusively with child abuse. Prior to this, it is necessary to establish an active cooperative system with the abuse prevention police officers. Children are now subject to adult protection. Nevertheless, he is a person who should be respected by the state and society. And we must not forget that he is the leading figure in our society in the near future. Therefore, all policies on children should be centered on children. And the interests of children should be considered first. Therefore, policies for children should be established and implemented comprehensively from a long-term perspective. Furthermore, studies should continue to support these policies.
  • 2.

    A Study on the Crime Victim Protection System

    Joung Soon Hyoung , Jeon Myung Gil | 2021, 9(1) | pp.35~52 | number of Cited : 1
    Criminal victims are those who provide important information in the discovery of real truth and have a direct interest in the consequences. However, in the process of operation and discussion of the criminal justice system, the human rights issues of the accused or the accused were mainly focused on the human rights issues, and the discussion on the protection of victims was very insufficient. However, as a result of the re-recognition of crime victims, various legal systems have been established for the protection of crime victims, and the victim's position in criminal procedure is also decreasing. But various systems for protecting and supporting crime victims are still insufficient, and various systems designed to protect victims also have various problems in the operation process. Therefore, to strengthen the protection of crime victims, the overall maintenance of the national legal system related to the protection of crime victims is needed, the restriction on the reason for the payment of crime victims is eased, and the investigation process considering the characteristics of victims is needed. In addition, there is a need to introduce a system in which victims can participate in the criminal procedure and strengthen notification of victims.
  • 3.

    The role of the state in social security legislation focused on the French anti-étatisme

    YeongHun Jeong | 2021, 9(1) | pp.55~82 | number of Cited : 0
    It has been a long time since a polarized society has become a problem in Korea. However, the fact that the problem of polarization today is a problem of poverty is getting closer to common sense. Some say, “the expression of a polarized society covers poverty.” On the other hand, they continue to accuse the situation of Precariat, saying that there is a labor problem at the root of this problem. Here, the term precariat is a coined word created by the combination of proletariat and precario, which means unstable state, and seems to have appeared in Italy. The French synonym, precarite, was already a problem in France. In addition, the polarization problem of Korea, in other words, polarization is not simply a differential or single-dimensional problem that there is a difference in the economic situation between A and B at some point, but that the polarization is in most cases that position change is impossible in mind. In other words, the problem is the fixation of polarization in the sense that it is impossible to escape from poverty. This context is what is expressed in France as exclusion sociale. This concept of social exclusion is being discussed in social welfare studies and social security law in Korea, and even constitutional researchers use this term, but it is probably not a concept that is often heard in constitutional studies. In fact, this social exclusion in France has not started to be used very recently. Already in the 1990s, long-term unemployed people were used to refer to a situation where they were away from social life. And this problem consciousness leads to the lowest income for social participation (“revenum inimum dinsertion”). There is an argument that if we look to Korea, we should not seek a solution to such a polarized society through the intervention of the state. This debate includes standing on the perception that fixed polarization or social exclusion is not so serious, and in this case it will be the current state of polarization society acceptance theory. It is not at the level of this epistemology, but in the first place that the state intervention is unnecessary or harmful, insisting on the superiority of the vitality of private enterprises to revitalize enterprises as a result reduces poverty or argues for the failure of the government, There is also an injustice as well as an infringement of freedom, but the Constitutional Science’s response to this is currently not good. Among the above discussions, mainly the last argument seems to be that the state directly attempts to intervene. However, as described in this article, in France, state intervention does not necessarily mean that the state uses its own hands. On the other hand, it has been pointed out earlier that in France the tradition of anti-etatisme also exists deeply. Here, this paper looks at France and tries to get some hints on the principle of the state, what role it plays, and how the state intervenes in the field of social security.
  • 4.

    The Development in a Regional Organization for Implementing a Human Rights Protection System in Asia, and a Role in the Country and the Human Rights NGO

    Lee,Hyeong Seok | 2021, 9(1) | pp.83~115 | number of Cited : 0
    Abstract PDF
    Europe, the Americas and Africa concluded the human rights agreement to ensure human rights. For the effectiveness of Human Rights Convention, the organizations called the Human Rights Commission and the Human Rights Court were established. Asia is not existed a regional convention on human rights for a political and cultural reason. There is not even an organization that guarantees basic human rights and freedom in a procedural manner and that solves a specific dispute. Asian countries are recently getting higher in the cultivation of human rights consciousness and in the awareness of the rule of law. Thus, the discussion and possibility are growing in terms of concluding Asian Convention on Human Rights and of forming the human rights security system, which is composed of a substantial security organization. For the effective guarantee of human rights in Asia, it is important to clap up a human rights convention and to establish even an effective security organization. But to specify this, there is a need of role and cooperation in civil society like the human rights NGO along with Asian countries. To examine this necessity, this study, first, inquires into the application of forming the human rights security system through analyzing the human rights security systems in Europe, the Americas and Africa. Second, the aim is to check the human rights status and the institutional operation in Asian countries and to review the types & cooperation process of current small regional organizations, and the procedure for the human rights guarantee. Third, it looks through an effort to improve human rights by civil society like the human rights NGO in Asian countries and through implementing a regional human rights network. Based on this, a plan is aimed to be pursued for contributing to the efficient human rights guarantee in Asia.
  • 5.

    Future Countermeasures of Ministry of Justice, Japan according to “Interim verification report on master plan of promoting the use of Adult Guardianship System"

    Oh, Ho-Cheol | 2021, 9(1) | pp.117~136 | number of Cited : 0
    The use of adult guardianship system in Japan is very poor as in Korea, so 「Act on promoting the use of adult guardianship system」 has enacted on April 15, 2016 to overcome this. It was confirmed that the nation will make every effort to solve various problems about adult guardianship system to promote the use of adult guardianship system by enacting his law. And 「Master plan of promoting the use of adult guardianship system」was announced on March 24, 2017 based on Article 12-1 of this law. This plan summarized the tasks about adult guardianship system and presented Out Line for future countermeasures. And 「Interim verification report on master plan of promoting the use of Adult Guardianship System」was organized and reported on March 24, 2020 in the experts' meeting for promoting the use of adult guardianship system on March 17 of the same year. This study examined what Ministry of Justice, Japan should respond to such as matters on the supply of Guardianship System Support Trust and Guardianship System Support Deposit and Savings, countermeasures on appropriate security of operation according to the intention of voluntary guardianship system and reexamination of right limitation such as adult ward on adult guardianship system to check whether there is any implication for Korea.
  • 6.

    A Review on the Regulation of Sports Agents in the United States - Focusing on the Major League Players Association (MLBPA) rules on agent regulation -

    JongHwan Lee | 2021, 9(1) | pp.137~163 | number of Cited : 0
    In this paper, I will introduce the regulation of agents for the Major League Baseball (MLB) meeting and consider what is required as a so-called sports agent. In this paper, we will use the term agent in that it provides a wider range of service services than is normally assumed. Sports agents represent negotiations and marketing tasks related to contracts and transfers of sports players and provide various management services. Sports agents have professional abilities and are responsible for performing a variety of activities that support the athlete to achieve more effective results than the athletes themselves. And the sports agent began with introducing players to the club and signing contracts. After that, the work to increase the value of players was expanded following the annual salary negotiations, and furthermore, he was in charge of supporting the shortcomings of players. Sports agents are, first, to allow players to concentrate solely on exercise so that they can further increase their performance through training and skill development. Second, the psychological stability of the players can be obtained. Third, it can increase the value of the player’s endorsement advertisement. In addition, if sports agents are divided into small groups, they are divided into sports marketing agents and sports contract agents. It is also classified as a game agent, which is the role of concluding a match between the player agent and the team. The agent’s performance job is to collect data and learn knowledge on laws related to sports player contracts, regulations and regulations of sports associations and organizations, trends in domestic and international sports markets, and competition and competition schedules. Discovering and nurturing competent players and forecasting the players' marketability. Representing a player in salary negotiations, transfer to a team, sponsorship and advertisement model appearance contract, and marketing. It provides and manages overall services such as media promotion of players, medical and legal support, support and management of players' families, training programs, and fan management. This paper reviews the definition of agents, agent registration requirements, certification procedures, and prohibited acts of agents, as defined by the United States Unified Athletes Contract Act. It also reviews the legal relations on the responsibilities and obligations of sports agents. In discussing the MLBPA rules for agent regulation, the characteristics and purpose of the MLBPA rules for agent regulation, the subject of the MLBPA rules, regulation on application, regulation after certification, and regulation on the internal relationship of agents are examined in detail.
  • 7.

    Legal Study on the Labor Director System in Public Institution

    SHIN JAE HA | 2021, 9(1) | pp.165~189 | number of Cited : 0
    Labor Director System (Board-level Employee representative) is a system that allows directors representing workers to participate in the board's decision-making process at the board of directors of companies or public institutions. Labor directors may exercise their right to speak and vote on major matters, such as business plans, budgets, amendments to the articles of association, disposal of property, etc. The purpose of introducing the Labor Director System is to protect workers as shareholders, to perform the role of effective monitors and advisors, and to promote investment in human capital. Despite labor reform, labor-management conflicts continue due to the dual structure and polarization of the labor market, continuous wage hikes and worsening management performance. The government is attempting to introduce the labor director system in public institutions by presenting the realization of social values of public institutions and establish it as national tasks. The introduction of the labor director system to companies and public institutions can make significant changes in the Korean stock capital market, including its impact on the market economy in the future. It is expected that there will be positive aspects to improve corporate governance by preventing conflicts between labor and management and contributing to the productivity of companies and stabilizing labor-management relations. However, the effectiveness of workers who lack management expertise can be an obstacle to companies' rapid decision-making for economic activities, and whether labor directors can represent workers' interests and reflect them in company management is also a problem. Rather than equally applying the labor director system to companies and public institutions, it would be desirable to have sufficient experience after implementing it first to the public institutions, supplement the problem, and then try to introduce it to ordinary private companies. As the conclusion, more consideration is needed to review the background of the introduction of the labor director system and the trends of foreign legislation before introducing labor director system. Also the new proposals on the labor director system of public institutions can be made to improve corporate governance for economic democratization.
  • 8.

    Exceptional State and Reversion of the Ghost as a Crisis of Constitutional Democracy

    Jongho Kim | 2021, 9(1) | pp.191~242 | number of Cited : 0
    The fluctuations in the guarantee of security by the national-state system are no different from the expansion of the state between legal order and chaos. From the state of exception, which is both domestic and international politics, who (subject) and by what logic should the legal order be restored in what period and space? Here, Schmidt was referred to in discussing order formation in exceptional state. Schmidt made decisions in exceptional circumstances and made the sovereign of his friends and enemies. If it is determined that it threatens safety, a friend is initially established as an enemy after death by designation of the enemy. Here, prior to the debate over the subject that controls sovereignty, it is decided to classify two categories, focusing on the establishment of order in an exceptional state (although closely related). One is the reconstruction of order through the rule of power that does not require democracy. The other is the restructuring of order through self-domination through the creation of laws by democracy. The rule of power, which does not require democracy, falls into two forms. Referring to Agamben’s discussion, one form is called ‘the power of the law without rule’ or the ‘power of the non-law.’ The administrative power, which has become autonomous from the legislative power or judicial power, forms order through an order that has the same power as the law. Here, it is the fact that the act of governance, called an order, has the same power as a law, although it is not a statute legislated by a representative elected through a vote, a method of democracy. In other words, the parliament (legislature) becomes obsolete, and the separation of powers ceases. As Agamben argues in the ‘state of exception,’ a second structure that could exist alongside the legitimate constitution thanks to the state of exception is based on one paradigm that seems to be sharply defined as a dual state while maintaining the current constitution. It is the act of setting aside the separate power structure. In other words, it is the suspension of the constitution that sets the framework of the current governance and the government that puts another second structure next to the constitution. In exceptional state, it forms ‘order, not law’ by governance through power. The suspension of the legal order by the suspension of the constitution and the rule by a second structure by autonomy power reminded Nazi Germany, which ruled with the suspension of the constitution of the Weimar Republic, but substantially or in part during the Second World War. Constitutional dictatorship with suspended rule was widespread in liberal countries. Another form is created when a substantial order is formed by depoliticized economic power (for example, the formation of global standards by multinational corporations or movements in each country’s legal system for markets). Of course, depoliticized economic power does not completely destroy the current framework of governance. It is a government that has a different “second structure” next to the constitution or legislative process. This is to form a “legal order” by governing through “power, not law,” that is, power created without going through a democratic process in an exceptional state where the division of the public corporation is unclear. In sovereign states, the formation of an order other than the law evaluates the sovereign state at the center of its rule on the occasion of an exception that threatens security. If the boundary between domestic politics that maintains legal order and international politics of potential chaos is being melted, in such an exceptional state, by reappointing enemies, the scope of ‘friends’ to be kept safe is determined, and domestic politics and international politics are divided. It is a trend toward governance. However, it is necessary to continuously monitor whether the ghost of militarism is returning by arbitrarily setting a new order that our neighboring Japan is in an exceptional state.
  • 9.

    A Study on the Cyber Terrorism Countermeasures

    Kwon Yangsub , Lee, Du-Ri | 2021, 9(1) | pp.245~263 | number of Cited : 3
    Entering the era of the fourth industrial revolution, technologies such as the Internet of Things (IoT), big data, and artificial intelligence (AI) are being applied not only to industrial sites but also to everyday life. With the rapid development of information technology, cyberspace takes up a large portion of the country's activities and businesses as well as its businesses, but the risks are increasing as well. Currently, Korea's response system is drawing up policy countermeasures such as enacting and revising related laws whenever cyber attacks occur, but it is not an efficient response. To prepare for the ever-increasing threat of cyber terrorism, the study suggested that legislation and institutional improvements be a safe cyberspace in the future. First, enact an integrated law. Second, prepare international cooperation system. Third, train cyber security professionals. Fourth, supplement the response system. In addition to the above suggestions, the introduction of a system that can respond in real time to the current follow-up system will be a challenge for the future.
  • 10.

    A Study on the Implementation and Development of the Autonomous Police System

    KIM JAE HAN | 2021, 9(1) | pp.265~289 | number of Cited : 3
    In recent years, from the position of the government on the adjustment of the prosecution's and police's investigative powers, contents on the operation of the autonomous police system was included together. The autonomous police system has been debated since the past. However, achievements of efforts to reflect the position of local residents by distributing the police administration authority, which had been concentrated in the central government to the provinces, and to provide security services and public services tailored to the circumstances of the local community were not appeared readily. Along with the inauguration of the current government, a wind of reform for power institutions began to blow, and as part of the reform of the power of prosecutors, which has left scars of unfair cases and abuse of authority, adjustment of the power of investigation has been carried out, and the discussions on the introduction of the autonomous police system began in earnest. Eventually, as of December 31, 2020, 「Police Act」 was abolished, and it was completely revised to 「Act on the Organization and Operation of the National Police and Autonomous Police」 and has been in force from January 1, 2021. However, there are still many voices of criticism and concern about the autonomous police system. In particular, the issue of how to secure political neutrality against local native forces such as governor, members of the National Assembly, and local politicians is being discussed the most. In addition, issues of various types of human rights violations against citizens that may occur in the early stages, affairs distribution of national and autonomous polices, responsibility for incidents, and financial burdens for the operation of the autonomous police system have been raised. In this study, the researcher looked at various alternatives mentioned in previous studies and sought solutions to establish an autonomous police system that can be trusted by the public. In relation to the autonomous police system to be operated in the future, efforts should be made to minimize the confusion that may occur due to the introduction of new systems, and the process of communicating with local residents and understanding each other should be continued.