Legal Theory & Practice Review 2021 KCI Impact Factor : 0.87

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2021, Vol.9, No.2

  • 1.

    Legal research on the introduction of the private investigation system - Focusing on private detective service legislative bill -

    Moon Jae Tae | 2021, 9(2) | pp.11~36 | number of Cited : 0
    In modern society, new laws continue to be enacted due to the development of science and technology and rapid changes in the way of life. And the spread of citizenship is bringing about the expansion of the role of the state. Accordingly, the state should focus on policy development that can guarantee activities for the active protection of the rights of the people. The “private investigation system” is an appropriate system in the context of such limitations in state administrative power and increasing demands for guaranteeing the rights of the people. In our society, social discussions have been continued on the introduction of the “Private Investigation System”. In addition, related legislation has been steadily proposed in the National Assembly. However, it was discarded every time due to concerns that the expected increase in privacy, personal information, and other illegal acts expected by the passage of the legislation would increase. However, there is no evidence that it is possible to block illegal activities just by recognizing the detective business. Rather, various damages can be relieved and prevented when the state officials and manages the detective business. With the recent amendment of the 「Act on the Use and Protection of Credit Information, from August 5, 2020, the use of the name 'Detective' and the detective business became possible. However, the amendment does not contain the standards and scope of work related to the detective business. In order to implement and settle the detective business, it is necessary to investigate foreign legislation that has already successfully operated the “private investigation system”. In addition, it is necessary to promote the detective business that reflects the improvement of the relevant legislation.
  • 2.

    Improvement of Legal System about Domestic Violence

    Kim Jan Di | 2021, 9(2) | pp.37~58 | number of Cited : 0
    Korea has enacted and enforced the Act on Punishment of Domestic Violence based on the measures against offenders and the Act on Prevention of Domestic Violence based on the protection/support for victim, to cope with domestic violence. Since such acts on domestic violence are separated, however, both acts are weakly interconnected. They primarily intend to discipline/punish the offenders, but to ultimately protect the victims and facilitate the peace, stability and recovery of homes. The measures against offenders and the protection for victims are not separate issues, but are eventually methods for achieving a common goal, though they approach domestic violence from different perspective. This paper, therefore, proposed that a comprehensive law should be enacted in embodying a new legal system about domestic violence. In other words, it is necessary to enact the 'Domestic Violence Prevention Act', by integrating to two acts, and not only the discipline against domestic violence offenders but also the protection/support for victims should be contained in it. The existing acts should be adjusted to rationally cover both the discipline against offenders and the protection for victims through police officers' initial responses, probation and the victim protection order system, under a single legal system, while the system of cooperation with related agencies should be also established.
  • 3.

    A study on fire prevention in school facilities - The characteristics and its implictions of U.S.A and U.K, Japan -

    Yim Dong-Kyun , Yang Gi Geun | 2021, 9(2) | pp.59~88 | number of Cited : 1
    Abstract PDF
    The purpose of this study is to conduct a comparative analysis between the fire prevention system of domestic educational facilities and the fire prevention system of overseas educational facilities such as the United States and Japan to derive implications from the results. What can be seen through the analysis of fire prevention systems in educational facilities in the United States, United Kingdom and Japan is as follows. First, it is a detailed fire safety standard suitable for the special purpose of buildings such as educational facilities. Second, detailed guidance in cooperation with local fire departments. Third, regular fire drills and compliance with fire safety construction laws in school buildings are mandatory. Finally, it is the disclosure of the website of fire safety standards and guidelines for educational facilities, and so on. In order to effectively improve the fire prevention system of educational facilities in Korea, it is necessary to prepare fire safety guidelines for schools suitable for local characteristics. As explained in the case of overseas education, it is necessary for the Ministry of Education, Culture, Sports, Science and Technology or the educational autonomous district to cooperate with local fire departments to prepare detailed guidelines in all areas such as construction management, supervision, and inspection of buildings. And when such detailed guidelines are prepared, it is possible to prepare fire safety guidelines tailored to the characteristics of the region.
  • 4.

    Competition Law Issues Regarding Online Platform Companies' Big Data Monopoly

    KIM, Beom Joon , Lee Chae Yul | 2021, 9(2) | pp.91~117 | number of Cited : 3
    With the development of data-driven information and communication technologies, global IT companies have expanded their scope to the platform industry, and major foreign countries have developed national development strategies with the aim of revitalizing the digital economy. In particular, the Covid-19 outbreak in 2020 has activated non-face-to-face transactions, which has exploded the demand for platform companies that can run search, order, and payment online. Typical applications include search engines, social networks, Internet shopping, and delivery intermediary applications. Instead of providing free services to users, these online platform companies are securing user data and using it to grow their businesses. For example, personalized advertisements can be provided by analyzing data such as search contesnts, consumption patterns, eating habits, conversation contents, etc. formed by using the personal information of the users and the service itself can be improved. Within the online platform market, the business will operate based on this, allowing companies that utilize a larger amount of data to gain the upper hand. As a result, there is a problem of unfair practices caused by the data monopoly of digital giant companies. Major foreign countries such as the U.S., Germany, EU, and Japan recognized such a big data monopoly as a competitive legal issue, accumulated judicial precedents, and established regulatory systems. The United States discussed data as a major issue in reviewing mergers between platform companies, and EU also sought to address data imbalances by specifying the obligation of large platform companies to provide data. In Germany, the revision of the Competition Restriction Prevention Act reflected data-related issues in the digital market in regulations, and Japan also preemptively prevents platform companies from monopolizing data by establishing guidelines for fair competition. Unlike major foreign countries that already regulate big data unfair practices by online platform companies through legislation and precedents, Korea has mainly implemented policies by linking data to privacy. Therefore, measures to regulate monopolies by collecting large amounts of data by platform companies have not yet been developed. Therefore, this paper examines the competitive restriction effect of data monopolization and analyzes regulatory trends in the United States, EU, Germany, and other countries that lead the digital economic market. Based on this, this paper would like to examine the m&a review of Delivery Heroes and Woowa Brothers Corp. to derive demand for improvement of 「Monopoly Regulation and Fair Trad Act」.
  • 5.

    The Establissement of the right direction for the Restorative Policing

    MoonKwi KIM | 2021, 9(2) | pp.119~140 | number of Cited : 0
    This study attempted to review the contents and system of the recently promoted restorative policing undertaken by the South Korean National Police Agency, and to present the ideological and practical directions that should be maintained in order to establish the South Korean-style restorative policingas an effective conflict resolution approach. In terms of ideology, restorative policing should be an approach that is faithful to the ideologies and principles of restorative justice, and should be positioned as a new philosophy and paradigm for policing, and used as a means to complement traditional policing or criminal justice procedures. In practical terms, restorative policing should be set as follows in terms of subject, purpose, object, means and method. On the subject's side, restorative policing should be operated in such a way that the party to the case is the subject. Regarding the purpose, restorative policing should pursue a humanist dialogue-centered approach. In terms of targets, restorative policing should be used not only for the post-treatment of crimes, but also for crime prevention purposes, and the scope of application should be expanded and diversified by applying them to serious crimes throughout all stages of policing. Regarding the means and methods, restorative policing should be an easy and flexible approach, should not be led by the police, diversified the way programs operate, and should break away from the performance-oriented system operation.
  • 6.

    A Study on the Current State of Stalking and the Protection of Victims

    Song, Min-Jin , Park Hyun Jeong | 2021, 9(2) | pp.141~170 | number of Cited : 3
    In general, stalking is perceived as an act of continuing repetition against the will of the other person, for example, approaching, following, waiting in hiding, asking for date, etc. However, when looking at the recent stalking case, it shows a gradual appearance of violent crime beyond the type specified in the conventional misdemeanor punishment law. There are many types of stalking crimes and victims. In relation to the victim and the perpetrator, it can be classified into close relationship, relationship-seeking, and non-relational type, and according to the type of behavior it is divided into emotional stalking, physical stalking, and sexual stalking. Looking at the damage-focused types, paying attention is needed to the damage caused by psychological deprivation, the damage caused by the social activity restriction, the damage caused by the cyber activity restriction, and the damage caused by the economic burden. This can be said to be the basis for showing a gradual phenomenon to the extent that it is impossible to lead daily life beyond simply feelings of discomfort and anxiety. Stalking poses a risk factor as a hidden crime in that it is difficult to prepare countermeasures because criminal sanctions are not properly implemented. In addition, in the type of misdemeanor crime, the risk factors that may lead to retaliatory crimes due to incremental risk factors to violent crimes, light punishment or warning, etc. should not be overlooked. Since these types of damage and risk factors can cause serious damage, the urgency to protect victims is required. Accordingly, it is necessary to establish a system for the clarity of the requirements for sanctions and the active response of the investigative agency, focusing on foreign legislation on the protection of stalking victims and the newly established 「Legislative Bill of Punishment of stalking」. In addition, as an institutional device for the protection of victims, research should be conducted to establish a support system for victims of stalking crimes and to establish a stalking countermeasure center in force in foreign countries. Since stalking has an incremental characteristic, a step-by-step institutional device that can be prevented from just minor incidents and a step-by-step protection device to protect victims must be provided. Through this, stalking crime is expected to gradually decrease.
  • 7.

    The concept of power and the structure of the theory of power - Comparison of Stephen Lukes, Nicholas Luman, and Harold Laswell’s theory of power -

    Jongho Kim | 2021, 9(2) | pp.171~212 | number of Cited : 0
    There have been various attempts so far in grasping the phenomenon of power in sociology. However, many attempts so far still have many problems in terms of conceptualization of power. In other words, the concept of power continues as an ‘essentially controversial concept’ in the sense that the discussion on the criteria for the correct use of the concept has not ended. So why is this happening? One big reason is that the individual attributes and the collective attributes that first arise from the accumulation of several individuals are not separated and confused in the process of conceptualizing power phenomena, it is impossible to determine which social phenomena specifically perceived as power phenomena by each power theory. Therefore, in order to determine the power phenomenon, a standard for that decision is necessary. This criterion is insufficient just to conceptualize as an individual attribute or to conceptualize as a collective attribute. Once we have separated individual and collective attributes, we need to relate them to create a decision criterion. So, how do we understand power while studying law? The word ‘power’ appears only once in Article 1, Paragraph 2 of Korean Constitution. It is not known for what reason, but studies that have discussed the concept of power in law are quite rare. The impression that it has been put off by the realm of politics cannot be erased. Therefore, the necessity of actively developing the discussion of the concept of power in legal study was raised. In addition to reviewing the theory of power by Steven Lukes and Niklas Luhmann, the point in this article is about Carl Joachim Friedrich’s ‘concept of substance’ and ‘concept of relation’ in order to faithfully review the theory of power. It is indispensable to miss a review of those dogma. In this paper, while evaluating the extremes reached in previous studies, I will try to discuss the possibility of developing the intellectual heritage behind them, focusing on the two discussions, Lukes and Luhmann. Although the theory of power between the two is worthy of review and at the same time a convergence point and a “reach point” of two different concepts, there have been no academic attempts to compare the two so far. Since the power theory of both sides has a different structure, a comparison will clarify the general aspects of the same problem of power phenomenon. The explanation of power is still insufficient, but for the first time, the directly related parts in this article mainly reviewed what was discussed by Bachrach and Baratz. In understanding the nature of power, pluralism is concerned with how power is actually exercised. For pluralists, power appears as a result of participation in decision making, and therefore, it was thought that the researcher could scrutinize precisely after making a specific decision. In addition, it was decided to find an answer to the problem raised in this paper through a review of “Power and Society,” the culmination of Lasswell’s theory of power. Lukes and Luhmann’s discussion contained a number of issues as a theory of power. In the case of Lukes, he was discussing the power to “distort” the individual preferences of the actors without theorizing the “real interests” in the three-dimensional view. In the case of Luhmann, since the sharing of the code of power is returned to the ability of a symbol, it ignores the difference between multiple actors and easily takes the logic that the code is consistently shared between multiple actors. The problem facing the two people can be formulated as a problem that the whole theory of power has. It is a problem in which the decision of the power phenomenon cannot be reduced to an individual attribute or a collective attribute. The full reduction to personal attributes requires a criterion of judgment beyond the individuality of the actor because it tries to leave the sympathy of the power phenomenon thoroughly to the subjective judgment of the parties. The inability to present that standard makes it possible, so to speak, “fantastic power.” I had doubts about what Lasswell understood as a relational conception from an early age because Lasswell considers not only power and wealth, but also respect and affection. However, I agree with Lasswell’s argument that his concept of power is the concept of relations as Friedrich calls it.
  • 8.

    Review of Internal Control Measures to Suppress Corporate Crime

    Park Woong Shin | 2021, 9(2) | pp.213~252 | number of Cited : 0
    Without the existence of a corporation based on capitalism, the management activities of companies have already become indispensable to human survival, to the extent that it is hard to think of the material affluence we currently enjoy. Although the quantitative and qualitative expansion of companies has benefited from expanding and reproducing economic goods and thus expanding employment, the reality is that various side effects, including environmental pollution, cannot be ignored. In particular, the adverse effects of such activities can be seen to be greater if the entity is directly or indirectly involved in various criminal activities. This type of crime not only adversely affects the sound national economy by greatly infringing on the normal economic activities of the state, but also damages the direct parties to the criminal act in a small way. Therefore, crimes committed by companies are also justified. The problem is that in modern society, the specificity of a company, a complex and specialized organization, acting systematically, or unofficially under the direction of its commanding officer, makes it difficult to detect corporate crimes, and, fortunately, even if caught, to prove the causal relationship between crimes and acts, such acts are the result of corporate management judgment and should not be subject to criminal responsibility. Criminal law should respond appropriately to the changing social environment. In view of the importance of enterprises in modern society, I think it is time for criminal policy attention as well as criminal understanding of crime to curb corruption and injustice and realize social justice. Therefore, to help us understand the type of corporate crime and its criminal policy response, we would like to review the issue of punishment for corporate crimes that have already occurred and how to prevent them.
  • 9.

    Review of the background of the law against discrimination against persons with disabilities and measures to ensure effectiveness

    Jung, Jung-Hee | 2021, 9(2) | pp.253~292 | number of Cited : 4
    Currently, the number of registered disabled people in Korea is continuously increasing. As types of disabilities are diversified, demands for related policies are also diversifying. In order to meet this policy acceptance, policies for the disabled are also being strengthened to keep pace with the dynamic environmental changes in Korean society. The Act on the Prohibition of Discrimination against Persons with Disabilities began with a legislative movement of the disabled themselves in the reality of severe discrimination against persons with disabilities in our society, and laid an important foundation for upgrading human rights in quality. Accordingly, the anti-discrimination system for the disabled is based on the goal of eliminating prejudice against the disabled (social cold eyes) and improving the social environment and inducing equal employment with the non-disabled in terms of opportunity equality. Based on the social model, the law has become a groundbreaking foundation for shifting the paradigm from 'benefit and consideration to human rights' throughout our community's policies on the disabled. However, despite the long passage of the law, the blind spot of the law still exists in the labor market, which does not extinguish discrimination against the disabled and parasites them like poisonous mushrooms. In addition to improving awareness of the prohibition of discrimination against employment of persons with disabilities, it is necessary to enhance the system's problems and measures to improve the mandatory employment of women with disabilities and persons with severe disabilities. Article 11 of the Constitution stipulates that "all people are equal before the law," and Article 10 states that "all people have the dignity and value as human beings and the right to pursue happiness." People with disabilities are also citizens of our nationality. Therefore, we should not be discriminated against because of non-disabled people and disabilities, and we believe that we have the same right to live equally and happily. This is not wrong with non-disabled people, but for innate and acquired reasons, there is only physical and mental discomfort in life. Disabled people are also warm neighbors and members of our community. Thus, beyond prejudice and discrimination against disabled people, disabled people are not the only ones with disabilities. They can have more diverse abilities than disabilities than non-disabled ones. Disabilities should be eliminated in our society, and the main focus of this discussion is on achieving a welfare society where they are given enough opportunities for jobs suitable for their ability in the fourth industrial era. The development process of this paper focused on the relief of rights through the Court (Judges), which is called the Last Rights Relief Organization (Boru), as a means of rights relief against discrimination against persons with disabilities, with the concept of disabilities (justification). After the enforcement of the Anti-Discrimination Act, the court's ruling (judgment) aims to identify how and how legitimately the law is applied to ensure the effectiveness of the law in the future. In addition, disabled women have a special desire for non-disabled people due to their biological and social characteristics, as well as dual status as socially disadvantaged. The issue of discrimination against them needs to be re-examined in connection with various related laws, as well as problems of the same law (weakness-corrections), particularly by inserting health and educational rights into implications (sinterpretation) sections.
  • 10.

    Discussion on human rights violations of bio-forensic evidence in investigation procedures

    Lee, In Gon | 2021, 9(2) | pp.295~340 | number of Cited : 0
    Developed countries in foreign countries have long developed bioforensics research of various emotion techniques and been used in various fields. Examples include fingerprints, documentation, DNA and bloodstain analysis. By the end of the 20th century, advances in advanced technology have added importance to DNA emotions. In order to make better use of advanced DNA technology in scientific criminal investigations, DNA databases have already been operated and practiced in the U.S. since the mid-1990s. The foundation of Korea's scientific investigation development can also be seen as influenced by scientific investigation by major advanced countries. Considering this, it is very important to consider the current status of bioforensics development in advanced countries and to look at the implications. Of course, there have already been many prior studies of bioforensics status in each country. Since the early 2000s, many scholars have started researching the overall development of legal science in each country, but only a few scholars were interested in the research at the time. Therefore, the subject and field of study were somewhat narrow. In the late 2000s, interest in the legal science system of each country increased, and many jurists, criminal policy scientists, criminologists, and law scientists attempted various studies in earnest. Based on these studies, the Institute of Criminal Policy recently conducted comprehensive legal science research for the first time in Korea. However, existing studies have some limitations. Most of the contents of foreign legal science systems remain flat introduction to the organization and responsibility of legal science research institutes in each country, and future research by younger students is expected. As for recent legal science trends, most of the reports published in the United States in 2009 are focused, and the criteria for the judgment of expert testimony in the United States are repeatedly introduced for legal content such as evidence and proof. On the other hand, insufficient research has been done on what is a problem in the criminal policy of reality in individual forensics fields in each country, and what are the recent changes in practice. In this study, the focus is on the field of Bio forensics, which aims to add weight by looking at each country's development status one more time and more specifically. In particular, we focus on looking at changes and issues in the field of Bio forensic, and we want to go too far with regard to Bio forensic institutions or organizations. Recently, a wide variety of discussions have been held in the U.S., Germany, and Japan, focusing on DNA emotions, and critical analysis has been conducted on the reliability of DNA emotions. In the UK, there are a growing number of cases of entrusting forensic emotions to the private sector to improve work efficiency, but concerns are also rising over the side effects. I would like to look carefully at these cases and look at the implications of any positive impact on our country.
  • 11.

    Roles of lawyer under the promotion of use of adult guardianship system in Japan

    Oh, Ho-Cheol | 2021, 9(2) | pp.341~361 | number of Cited : 0
    Japan enacted "the Act on the promotion of use of adult guardianship system" on April 15, 2016, and made "basic plan for promotion of use of adult guardianship system" on March 24, 2017 based on Article 12 of the same act. And they announced "interim report on the promotion of use of adult guardianship system" on March 24, 2020. The interim report on the promotion of use of adult guardianship system examines and evaluates the progress of various policies listed on the interim report on the promotion of use of adult guardianship system to organize individual task, requiring additional activity directions and reaction directions to nation, local governments and groups related to adult guardianship. Therefore, this paper examines the role required by the lawyers focusing on groups related to adult guardianship or lawyers among professionals. In summary, first, there are issues which require to appoint lawyer as adult guardians (including guardianship, assistance, help). Second, if lawyer is appointed as adult guardian in the future, he/she must comply with not only the right of representation of simple property management and legal act on property management but also obligation to consider his/her own opinions. And to practice this, he/she must closely work with welfare officials who support adult ward in the community to act as a member of network that supports adult ward. Third, we can expect them to play a role as guardianship supervisor. Fourth, if adult ward or family has difficulty to apply adult guardianship, the head of community can apply this instead. At this time, lawyers are required to give advice on specific application procedures or strengthen solidarity with local public organizations. Fifth, lawyers can cultivate and support citizen guardians, and finally, they should support their own decision making.
  • 12.

    Review of the Japanese criminal case - Sapporo District Court on November 29, 2019 -

    Hong, Tae-Seok | 2021, 9(2) | pp.365~383 | number of Cited : 0
    Attempts crimes are made when an actor attempts a crime and the result does not occur. The Korean criminal law divides these types of attempted three categories. Among them, attempted suspension is subject to reduction or exemption of the sentence, and the requirements for establishment may be stricter than other attempted offenders. Article 26 of the Korean Penal Code stipulates, “If a criminal voluntarily suspends an act of execution or prevents the occurrence of a esult of such act, shall reduce or exempt the sentence.” Based on the provision of such a middleman, the most important requirement can be regarded as ‘free will’. Japan’s criminal law also has provisions related to voluntary abandonment in Article 43 and calls for ‘free-will’ as an important requirement. Although there are minor differences in terms of the term, the context of ‘voluntary stop’ or ‘spontaneous stop’ can be consistent in attempted stop. As such, attempted suspension is considered the most important factor in its establishment. Japan’s recent case of sapporo district court on November 29 in 2019 did not result in what appeared to be a voluntary abandonment, such as calling the police station to request an ambulance after the crime, but eventually denied the voluntary abandonment. Through the case of Japan, one can only wonder how far the scope of the ‘voluntary abandonment’ to positively stop is. This paper is meaningful in examining the Japanese precedents of this content and examining the nature and scope of ‘free will’ one of the factors for affirming voluntary abandonment.