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2005, Vol.26, No.

  • 1.

    Issues and Tasks of Special Law for Multifunctional Administrative City Construction

    Su Kab Kim | 2005, 26() | pp.1~22 | number of Cited : 1
    In this Article, I deal with issues and tasks of 'the Special Law for Multifunctional Administrative City Construction' in Korea. The plan for construction of multifunctional administrative city now and new administrative capital which was nulled by constitutional court has a purpose to realize the balanced national development as well as solution of capital congestion.Although there are many opinions about the constitutionality of the special law for multifunctional administrative city construction, I think these are not appropriate to solve the problems. Because the special law for multifunctional administrative city construction is a second best legislation which was drafted by national assembly according to the unconstitutional decision of constitutional court to the special law for new administrative capital construction. Therefore, we must try to achieve construction for multifunctional administrative city without delay.
  • 2.

    Legal Problems of The Land use regulations at The National territory Plan and Use Act

    정준현 | 2005, 26() | pp.23~42 | number of Cited : 5
    Each The National Territory Plan and Use Act and The Administrative Complex Town Construction Act must realize the main concept of the Basic Homeland Act, “Balance development of the Homeland”. For the purpose mentioned above, the following is suggested, ①do not permitted to substitute the Deregulation of the capital area for the administrative complex town, ②give much more weight the specification and specialization of the region than any other policy, regarding the select and concentration principle and finally ③unify a lot of laws regulated the land zoning system under the national territory Plan and Use Act.
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    The Key Issues Surrounding the Successful Implementation of Land Suitability Assessment System and Relationship of Land Use Regulation

    Oh,Hyun-Jin | 2005, 26() | pp.43~62 | number of Cited : 1
    Land Suitability Assessment System(LSAS) was introduced in 2003 to achieve Environmentally Sound and Sustainable Development(ESSD), the main purpose of which is to meet the needs of the present without compromising the ability of the future generations to meet their own needs.The primary purpose of this paper is to provide policy alternatives for the successful implementation of LSAS. Following policy alternatives have been suggested in this paper.1. It is very important for us to introduce the fair LSAS under which every interested party can agree with assessment results.2. Now that land suitability results can have direct impacts on the property values, such democratic procedures as public hearings and complains should be included in the related laws.3. Since the results of land suitability assessment, which is conducted during the urban management planning process, can restrict citizen's property right, they should be subject to administrative lawsuits.4. This writer thinks it is not necessary for the government to recoup the land owners for losses when their land designated a conservation management zone as a result of land suitability assessment.5. This writer evaluated the planned Basic Land Use Regulation Bill very positively because it is sure to simplify, clarify, and systematize zoning related laws.
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    A Study on Compensation for a Restricted Land Property Right from Land Development Project

    Eum, Soo-Won | 2005, 26() | pp.121~147 | number of Cited : 11
    Land development project accompanies land acquisition and brings about restriction to the right of land property. Public restriction to the exclusive ownership and use of land is necessary because of physical characteristics of land resources such as limitedness and irreversibility. This is why sociality and publicness of land become important. The constitution guarantees the regulation for the property right of land and stipulates the clause including regulation on the right of land property for the public use simultaneously. But the constitution also provides that legitimate compensation should be made in case of compulsory land purchase and public restriction to the right of property. For the purpose of constitutional spirit, “the law of land acquisition and compensation for public use” has been in force. But it involves a lot of problems in many respects. This study understands the theoretical basis for the infringement of right of land property and analyze the operative situation and problem in the respects of legal institution. This study also focus on the suggestion of improvement for the current institution. The policy suggestion is as follows : the enhancement of reality of concept of the legitimate compensation which is stipulated in the constitution, the realization of standardized lot price for public notification which is standard price for the compensation for condemnation, the clarification of period of claim for damage, the adherence to the principle that relocation program should precede the compensation, the measures for the community restoration and social integration, the cultivation of professional compensation institution, the diversification of measures for compensation, the strengthening of protection regulation for the lessee, the support for resettlement and relocation.
  • 7.

    A study on the standard for compensation for loss in America - Focusing on the Relocation Act -

    김창휘 | 2005, 26() | pp.149~177 | number of Cited : 8
    In America, the general basis of compensation for loss is supported by the 5th and 14th Amendments of the American Constitution. Accordingly, it holds good in all the American states. In America, where the idea of just compensation was established long ago, it has been maintained by the legal decisions that the just compensation, under the 5th Amendment, the Federal Constitution, means a full and perfect one paid at the general market value of the taken property, that is, a perfect compensation for the property. Following are the four factors that must be considered to examine the taking of property rights against the Constitution: First, was there the taking of private property right or not? Second, can the taking of private property right be justified? Third, is the taking for public use or not? Finally, was just compensation for the taken property paid or not? The central focus of this article is on whether or not just compensation should be paid, the fourth factor as above mentioned.Hereinafter, I am to explore the compensational standard for loss, focusing on the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, along with the content of just compensation in America for loss formed by the interpretation of, and legal decision on the 5th Amendment, the American constitution. In America, compensation in the event of acquiring land for public work is not handled by any uniform standard of written sections other than this act; therefore it is thought to be the only standard for compensation for loss in America.
  • 8.

    Grundrecht in Sozialer Rechtsstaat

    KyuHah Kim | 2005, 26() | pp.179~196 | number of Cited : 0
    One of the principles in the Constitution, which is closely related to the foundation of a law-governed state, is Constitutionalism.The core essence of a constitutional state is to guarantee human-rights and the main characters of human-rights could be differentiated as time goes on. As an additional explanation, the term ? human rights had actually appeared from a modern state and it has been going on today laying stress on the right to live. In the present society, all the dramatic changes as the conditions of securing all constituencies right to live could be explained from the existence of property right in a country which has adapted free market economy system.The additional explanation follows as: Since the power of the absolute property rights which was emphasized in the modern ages have become relatively weak as time have passed, therefore the rights had to be materialized based on a certain social contractions.Under the consciousnesses, this research paper had divided the nation into the two parts according to the main character of basic human rights, which are liberalism- based legal state and that of socialistic-based, and reviewed.
  • 9.

    A Study on Delegation the Power of Eminent Domain Authority to Private Entities

    KIM, MIN HO | 2005, 26() | pp.197~210 | number of Cited : 21
    Traditionally, in American legal system, the Federal and all the States' Constitutions approve public entities' power of eminent domain for public use and with just compensation. However, recently, the statutes which the Federal and States' governments delegate the power of eminent domain authority to private entities are increasing more and more, especially in the sector of urban redevelopment. By the way, whether is a sort of statute like this against constitution or not? For resolving this problem, we have to recognize what means “public use”. Generalizing broadly, there have been three different judicial definitions of public use, although they do not coincide precisely with particular historical periods. The first, which has always been regarded as an uncontroversial minimal definition, is that public use means public ownership. Under this basic definition, a taking is for public use if the government will own and control the property after the condemnation is complete. A second, more inclusive, definition provides that public use literally means use-by-the-public. Under this definition, title to the property after condemnation is not relevant. The third and by far the dominant definition is that public use means public purpose or benefit. Under this expansive conception, property can be taken for any purpose with a plausible public interest justification. In conclusion, the question about whether the statute provided delegation the power of eminent domain to private entities is against constitution defends on whether the purpose of takings comes under “public use” or not. Therefore, even though the statute provides delegation power of eminent domain to private entities, it is constitutional unless it's purpose does not fall under “public use
  • 10.

    A Study on Tax Administration and “Due Process of Law”

    김민훈 | 2005, 26() | pp.211~229 | number of Cited : 0
    Until now tax is regarded as undeniable national obligation in Continental Law System Nations such as Germany and France. These Continental Law System nations adopt the Tax Administration Assessment System rather than the Self Assessment System. Korea also adopt the Tax Administration Assessment System as tax charge system so far. This system does not matter in terms of the rule of law because it determines the objective amount of tax according to the tax substantive law. But it is unsatisfactory system in many aspects as compared with Self Assessment System in America. Self Assessment System is suited for the doctrine of democratic sovereignty and it is far better in the effective tax collection. Therefore the conversion of the Tax Administration Assessment System to the Self Assessment System is necessary. And it is necessary to examine the appropriateness of the Self Assessment System and its operational condition in U. S. A. Furthermore it is meaningful to inquire about which right guarantees American taxpayer and to what extent this American tax system can be introduced in our country.Also, this dissertation aims to inquire into the Tax Investigation and the Taxpayers' Safeguard. That is, under Self Assessment System, in case Taxpayers' return isn't and Return is unsatisfied, Taxation Office investigates and decides. Therefore under The Self Assessment System, though Taxation Office' Authority is supplementary, it playes important role. Specially, The Tax Investigation is very important issue, because it poses some question concerned with individual right, especially infringement of privacy. Up to now we have neglected the due process in tax administration. Therefore, a Study of Due Process of Law in U.S.A. is meaningful to develop Tax Administration and Taxpayers' Safeguard in our country(Though the Chapter of Taxpayers' Safeguard is regulated in General Law of National Tax in 1996, it is unsatisfactory).
  • 11.

    Eine Untersuchung über die Änderungsnotwendigkeit des Datensicherungsgesetzes

    KIM, IL HWAN | 2005, 26() | pp.231~251 | number of Cited : 14
    Datensicherung ist die Herstellung von Datensicherheit. Datensicherung faßt daher alle technischen und organisatorischen Maßnahmen zusammen, die zur Sicherstellung der Datensicherheit getroffen werden. Datensicherheit ist der Zustand, den die Maßnahmen der Datensicherung erreichen wollen. Datensicherheit ist gegeben, wenn das Risiko eines Schadens auf ein vertretbar geringes Maß reduziert ist. Im Unterschied zu Datensicherheit beschreibt der Begriff Datensicherung die Anstrengungen, die unternommen werden oder werden mssen, um dieses Ziel zu erreichen. Die Informationstechnik entwickelt sich rasant weiter, die Risiken fr die Datensicherheit ebenfalls und zum Glck auch die technischen und organisatorischen Mglichkeiten, sich dieser Risiken zu erwehren. Dater mssen die Datensicherungsgesetz gendert werden, um das Risiko eines Schadens auf ein vertretbar geringes Maß zu reduzieren.
  • 12.

    A Study on the Administrative Release

    김치환 | 2005, 26() | pp.253~286 | number of Cited : 8
    The use of administrative release for administrative compulsion has not been known to us before. The administrative release, however, is very powerful compulsion means for offenders to perform the administrative duties these days. This administrative release often seems to be a week means for administrative compulsion. But it has very serious and strong effect actually. It would often threaten the human rights of offenders. It is why this paper tried to restrain the effect of administrative release on both sides of reality and legality. At the same time it is the reason why the measures of administrative release should not be used carelessly. Fundamental rights are to be protected even though they are violators. On the other hand, however, government should enforce laws to attain its goal, what we call, public interests. And in the process of pursuing the public interests government cannot help appealing to forced measures (administrative compulsion). The more powerful the forced measures are, the more easily government can attain its goal, controlling the offenders effectively. This is why government wanted to have strong enforcing measures administratively. Administrative compulsory measures should be so strong as to force offenders to perform their duties. Nevertheless It cannot be so strong as to threaten the human rights of offenders. So it is needed to harmonize the strength of administrative compulsion with the protection of fundamental rights of offenders.This paper has tried to research how to harmonize two conflicting sides above. The most important thing is not the legal effect but the real or social one of the administrative release. The actual effect does not fail to be noticed.
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    Zum Abweisungsbeschluß der Verfassungsbeschwerde gegen § 19 Abs. 1 BWBVermittG

    신봉기 | 2005, 26() | pp.349~372 | number of Cited : 0
    Es handelt sich bei dieser Untersuchung um die Richtigkeit oder Unrichtigkeit des Abweisungsbeschlusses der Verfassungsbeschwerde gegen § 19 Abs. 1 des Gesetzes zur Vermittlung von Bau, Wohnung und Boden(BWBVermittG). Nach § 19 Abs. 1 BWBVermittG ist schadenserstzlich verpflichtet, wenn der Makler bei der Vermittlung vorstzlich oder irrtmlich dem Verkehrsbetreffenden eigentmliche Schaden bewirkt. Ausserhalb der Einfhrung(I) und des Schlusses(IV) wird diese Abhandlung von zwei Kapitel gebildet, also wichtige Inhalte des Beschlusses des koreanischen Verfassungsgerichts(II), sowie die Unrichtigkeit dessen Beschlusses(III). In der II. Kapitel werden die Abrisse des Sachverhaltes, der Gegenstand der Verfassungsbeschwerde, der Entscheidungsteil des Beschlusses durchgesehen. In der III. Kapitel werden die Unklarheit der Begrndung des Nicht-Vorhandenseins der Zussigkeitsvoraussetzung und die Passivitt des Verfassungsgerichts, das Abzugssystem des BWBVermittGs und eine analysierende Vergleichung insbesondere mit Japan und Bundesrepublik Deutschland, im Hinblik auf die Begrndetheit die Prfung der Verletzung des Gleichheitsrechts, der wesentlichen Inhalte von Freiheiten und Rechten sowie der Unvereinbarkeit der Gesetzgebungspolitik mit durchgesehen und nachgeprft.
  • 16.

    Wohlfahrtsstaat in der Verfassung

    은숭표 | 2005, 26() | pp.373~386 | number of Cited : 0
    Die viel beredete “Krise” des Wohlfahrtsstaates ist vor allem eine Krise der bisherigen Denkmittel, eine Mentalittskrise. Sie wird teils berschtzt, wenn man annimmt, daß das Gesellschaftssystem, das diesen Wohlfahrtsstaat hervorgebracht habe, am Ende seine Mglichkeiten angelangt sei. und teils unterschtzt, wenn man annimmt, daß es nur um momentane wirtschaftliche Rezessionen um leere Kassen gehe. Es gibt wenig Anlaß zu der Hoffnung, daß die politische Theorie aus sich heraus sich regenerieren knnte. Erweitert man jedoch den gedanklichen Eizugsbereich auf die Gesellschaftstheorie oder gar auf grundlegende Konzepte der gegenwrtigen interdisziplinren Diskussion (System, Komlexitt, Selbstreferenz, Evolution, Selektion - um nur enige zu nennen), findet man faszinierende Mglichkeiten fr theoretische Neuformulierungen, die freilich fr den Wohlfahrtstaat selbst nicht schon Problemlsungen darstellen.
  • 17.

    Rulemaking in Cyberspace on American Administrative Law

    Dongsoo Lee | 2005, 26() | pp.387~407 | number of Cited : 0
    Electronic rulemaking(e-rulemaking) offers the potential to overcome some of the informational challenges associated with developing regulations. E-rulemaking refers to the use of digital technologies in the development and implementation of regulations.Attention to the use of information technologies(IT) in government rulemaking dates back only about a decade. Beginning in the late 1980s, the now-defunct ACUS started commissioning report prepared by administrative law scholars.Overall, many possibilities exist for applying IT in new ways to government rulemaking. A number of innovations in rulemaking practice could be developed these ideas as follows:① Improved data mining capabilities.② Conflict identification tools.③ Plain language tools④ Integrating rules with other laws.⑤ Online regulatory negotiations or juries.⑥ Digital public hearings.⑦ Sharing data and models online.⑧ Customizable, automatic alerts⑨ IT and non-rule policies
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    A Study for the Introducing the Taxpayers' Suit

    조만형 | 2005, 26() | pp.433~456 | number of Cited : 1
    National tax paid by the sweat of brow goes because of the budget waste of the government and a local autonomy group in case of our country and is leaking, but the way that the people who are a sovereign control on that kind of illegal unfair financial act is very feeble circumstances.Execution of a corrupt budget related to fiscal expenditure of the government / a local autonomy group the people who are a tax payer in particular is direct in oneself and a tax burden of future generation is affected. Therefore, it is necessary for own tax to have to introduce tax payer litigation silver as monitoring and visibility demand about unfair use and a judicature system to divide used well among fast time.This paper is going to watch the legislative bill which it proposed in the Ministry of Government Administration and Home Affairs and the ruling party while watching historical background of tax payer litigation and the theoretical side and contents about this such as a theoretical basis, legal character, system a few function. Also, it is going to present legislation possibility of tax payer litigation and a basic direction of main legislation contents in our country.That is, as for the people who are a tax payer, as for the waste of a budget to be huge because of the fiscal expenditure which broke the law related to financial administration of the government or a local autonomy group, it is caused a direct influence by own tax burden. Therefore, monitoring of a tax payer and a function of control are certainly necessary.
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    The Trend of the Administrative Dispute Resolution and the Alternative Dispute Resolution- Focusing on the Case of Japan -

    Kwihyeon Han | 2005, 26() | pp.475~503 | number of Cited : 4
    One of the most pressing issues in our society these days are social conflicts and their solution. People are sometimes described as ‘homo conflitus.’ Conflicts exist in every society and at any time.Society is now facing unseen upheavals and changes as we enter the 21st century. In particular, administrative conflicts are often caused by an antagonism between development and preservation, and a local or regional resistance against certain developments. For example, when it comes to the selection of sites for public facilities which are dangerous or which arouse public disapproval, the conflicts become very obvious.However, the judicial procedure needs too much money and time. It has made us attracted to the Alternative Dispute Resolution(ADR) as a recommendable measure for the dispute of the administrative matters. In Japan, the ADR has been reappraised as a useful measure not less than the regular judicial process, which has made them enact the “Act on the Promotion of the Alternative Dispute Resolution” on December 1st, 2005 after considering to enact the ADR legislation. I expect they positively consider to enact the legislation for the activating of the use of the ADR such as the “Standard Act on the ADR” in the process of the Korean Juducial Reform.
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    Challenge of Women's Right in Korea

    Kwon,Young-Ho | 2005, 26() | pp.505~516 | number of Cited : 1
    한국 여성의 인권은 일제강점기, 6.25 동란, 경제개발정책에 의한 희생 등 지난 세기의 아픔을 딛고 새로운 지평을 향하여 나아가고 있다. 오늘날 한국에서 헌법이나 형법 또는 민법에서 여성에 대한 불평등 조항을 찾아보기는 힘들다. 그러나 한국 여성이 살아감에 있어 남성과 동등한 권리를 실질적으로 향유하고 있다고 단정하기엔 선진국의 여성의 지위와 비교해서 아직도 미흡한 점이 적지 않다. 특히 산업현장에서의 여성에 대한 차별과 농촌지역 등에서의 여성 인권은 여성의 정치적 지위의 향상과 더불어 21세기 한국 사회의 개선해야할 숙제로 남아 있다. 이 논문에서는 우리 헌법과 민법 그리고 노동관계법에서의 여성의 법적 지위를 논하고 문제점과 해결방안을 제시함과 아울러 2000년대에 새로이 개정된 여성관련 법규를 중심으로 한국 여성의 법적 지위의 개선에 대한 논의를 전개해 보았다.
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