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2009, Vol.46, No.

  • 1.

    Strategische Umweltprüfung und Raumplanungsrecht

    Kim, Hyun Joon | 2009, 46() | pp.1~28 | number of Cited : 2
    Abstract
    Bei der vorliegenden Arbeit handelt es sich um die Strategische Umweltprüfung(SUP), die auch als die Plan-Umweltprüfung genannt wird. Die SUP verfolgt das Ziel, ein hohes Umweltschutzniveau sicherzustellen und dazu beizutragen, dass Umwelterwägungen bereits bei der Ausarbeitung und Annahme von Plänen und Programmen berücksichtigt werden. Es ist auch nicht zu verkennen, dass die SUP eine möglichst konsensuale Planung unter Berücksichtigung von Umweltaspekten ermöglicht. Aus diesem Grund ist die SUP als ein effizientes Instrument zur Konfliktbewältigung zu berücksichtigen. Das am 1. 6. 2006 in Kraft getretene koreanische Umweltpolitik-Rahmengesetz hat durch die Novellierung der Vorschriften über das PERS(the Prior Environmental Review System) die SUP akzeptiert. Weiterhin wird die Frage der SUP hierzulande heftig zur Debatte stehen, da das neue SUP-System m.E. viele Probleme enthält. Die vorliegende Arbeit versucht durch eine rechtsvergleichende Untersuchung zwischen Deutschland und Korea eine Lösung für die Frage zu finden. In diesem Zusammenhang ist die Arbeit wie folgt gegliedert: Im ersten Kapitel wird das Problem einführend gestellt. Im zweiten Kapitel wird die gesetzliche Situation von dem PERS und der SUP in Korea geschildert. Das dritte Kapitel bildet den eigentlichen Kern dieser Arbeit. Hier werden die Regelungen über die SUP im koreanischen Umweltpolitik-Rahmengesetz behandelt. Das vierte Kapitel beschäftigt sich mit der Harmonisierung von dem SUP-Gesetz zum Planungsgesetz. In der Schlußbetrachtung im fünften Kapitel werden dann die Ergebnisse dieser Untersuchung kurz zusammengefaßt.
  • 2.

    Probleme der Rechtssysteme im Bereich von Bau und Boden sowie Umwelt

    Shin, Bong-Ki | 2009, 46() | pp.29~58 | number of Cited : 2
    Abstract
    Es handelt sich bei dieser Untersuchung um die Probleme der Rechtssysteme im Bereich von Bau und Boden sowie Umwelt. Ausserhalb der Einführung(Ⅰ) und des Schlusses(Ⅴ) wird diese Abhandlung von drei Kapitel gebildet. Im Ⅱ. und Ⅲ. Kapitel werden die Probleme der Rechtssysteme im Bereich von Bau und Boden, z.B. Ergänzung der Maßregeln gegen die Auswanderung, Aussetzung der Fristen des Rückkaufsrechtes bei der Änderung der öffentlichen Versorgungsbetriebe, Systeme der Veröffentlichung des Einstandspreises der Wohnung sowie Obergrenze der Einstand- spreises der Wohnung bei der privaten Unternehmen, Sonderabgabe zum Grundstück für Schule u.a. untersucht. Im Ⅳ. Kapitel wird die Erforderlichkeit der Übertragung von Organleihe Umweltaufgabe zu Selbstverwaltungsaufgabe u.a. untersucht. Manche hier hingewiesene, verfassungswidrige Regelungen sollen so schnell wie möglich legislativ positiv eingeflußt werden.
  • 3.

    A Study on the discussion of the Green Space Construction under the 'Low Carbon, Green Growth' Strategy in Korea

    Mihong Lee | 2009, 46() | pp.59~82 | number of Cited : 3
    Abstract
    The objective of this study is to explore the policy related Green Space Construction and present the issue under the 'Low Carbon, Green Growth' Strategy in Korea. First issue is the green growth concept is confused to SD(sustainable development). The SD concept is more broad than green growth, so it is necessary to differentiate between two concepts. Second issue is the absence of strategy and item related green growth. Especially regional specific character and business style is considered during establishing strategy and item. Finally, public-private partnership is more necessary than before, because corporate role is important in constructing the green space construction.
  • 4.

    A Study on Judicial Precedents of Dam Discharge-Triggered Floods

    Lee Soonja | 2009, 46() | pp.83~112 | number of Cited : 1
    Abstract
    A government would have its own commitments to providing its people quality water supply systems and preventing potential natural disasters resulting from floods; actually, an urgent need to respond to those commitments led to the construction of artifactual dams all over the country. Contrary to such generic expectations, however, reckless dam construction projects and the resulting mismanagement have cost us lots of casualties and property damages. In spite of that, people did not take such losses seriously as they were, which they rather considered nothing more than natural disasters, not man-induced ones. As for now, pursuant to Article 2 & 5 of the National Compensation Act, one could file claims for damages against the Government in case he/she believes that they are attributable to a governmental mismanagement or any other governmental malfunctions in that either its sudden water discharge or neglect of duties to notify possible affected residents of the said discharge in advance has caused the foregoing casualties or damages. With regard to such dam-related mismanagement and malfunctions, this study took the following four aspects into account: (1) Physical conditions of a dam, such as location, structure, functions, etc.; (2) Determination of flood control capacity or flood control method; (3) Regulated dam discharge based on specific rules on dam discharge; and (4) Notice of dam discharge Precedents hold that any government mismanagement or malfunctions in accordance with the foregoing (1) and (2) were negated, while, in case of (3) and (4), mixed precedents of rulings were found. This study addresses whether those two cases are subject to Article 2 or 5 of the same act. Furthermore, it’s also explored by the used of judicial precedents whether an aspect related to any neglects of duties or obligations to take preventive measures can be referred to in judging the said mismanagement or malfunctions. Incidentally, since public facilities, such as dams, get more and more varied and complex, which, in turn, required their management to get more and more complicated and sophisticated, it’s obvious that there may be a case where it will take cooperation from applicable authorities to decide whether a proper management has been done, which is why a failure to take preventive measures against contingent risks is often considered in judging whether there has been any mismanagement or malfunctions attributable to the government. In addition to that, there is an urgent need to come up with a new system to put floods and related damages under control based on a whole new approach. Also needed are trainings and educations tailored to those in charge of operating and managing dams that are more likely to cause disasters than other social infrastructure and more susceptible to natural changes.
  • 5.

    A Study on Law and System for the Improvement of the Real Estate Investment Efficiency and Information Reliability

    이찬호 | 김영일 | 한진환 | 2009, 46() | pp.113~138 | number of Cited : 0
    Abstract
    This study is to seek for the stability of the real estate market on focusing around the real estate agency contract system in the real estate market. The results of the positive analysis are as following; First, the most important problem of the brokerage business is the system that the licensed real estate agent is produced. The exclusive agency contract system is needed and should be improved. Second, the exclusive agency contract system has a good effect on the real estate transactions efficiency, information reliability and investment decisions. Third, the factors of the real estate transactions efficiency have a positive effect on the real estate information reliability, and it does the investment decision. Fourth, the investors in real estates demand the real estate information reliability. Therefore, the best ways to improve the exclusive agency contract system are as following; First, ensuring the legal stability of the agency contract, Second, increasing the legal binding power of the agency contract agreement, Third, protecting the exclusive right of the broker, Fourth, legalizing the exclusive agency contract form, Fifth, enlarging the exclusive agency contract, Sixth, including the typical contract of the agency contract in the civil law. Therefore, to clear up the legal character of the agency contract, the agency contract should be included in civil law.
  • 6.

    A Study on the Model of Vitalization for Old Urban Center in the Regional Medium and Small Cities in Korea - Urban and Residential Environment Maintenance Law -

    Choi, In Ho | 2009, 46() | pp.139~158 | number of Cited : 4
    Abstract
    The purpose of this study is suggestion that improvement model of the vitalization for old urban center in the regional medium and small cities in Korea. In order to achieve the objective of this study, this study uses a theoretical studying method and case studying method with in the limits of the regional medium and small cities. In the case studying method, this study was performed to analyze by using the land use succession theory and the dynamic statistics of population, the present status of old urban center decline which has been troubled in the regional medium and small cities in Korea. As the result, it was known that rate of the municipal finance independence and scale of population have significantly had influence on the decline of old urban center in the regional medium and small cities in Korea. In the land use succession theory, the stage of regional medium and small cities is in its decline stages on neighborhood life cycle. Specifically. the urban and residential environment maintenance law has poor content. for vitalization of old urban center in the regional medium and small cities in Korea. And so this study propose some kinds of the problem and improvement contents of the urban and residential environment maintenance law for vitalization of old urban center in the regional medium and small cities in Korea. And this study propose the governance model of the vitalization for old urban center in the regional medium and small cities in Korea.
  • 7.

    Review on compensation of premium for redevelopment project in Public Law perspectives

    허강무 | 2009, 46() | pp.159~176 | number of Cited : 32
    Abstract
    Premium is the well established practice in Korean property market, however there are no systematic devices to protect the tenants who paid premium. By this reason, premium compensation became the primary cause for incessant disputes during redevelopment process. The problem of premium compensation did reach the critical point where the law can not stand idle or disregard any more under the excuse that the premium is difficult for objectification. As long as premium does exist as market practice, just Compensations be enforced to achieve the genuine purpose of fair cost-bearing and protection of private property right This study, under the purpose of providing the discussion point to seek solution for premium problem and smooth operation of redevelopment projects, takes the following process: Chapter II conceptualizes and classifies Premium. Chapter III reviews concept of property right under Constitutional Law, and premium as taxable income, to discuss whether premium may be recognized as property right. Chapter IV, firstly reviews premium paid by commercial properties tenants, business compensation to commercial properties tenants pursuant to 'Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor', and then derives how to improve business compensation for commercial properties tenants' Premium.
  • 8.

    Legal Aspects of responsibility and relief measure for Jeju April 3rd victim

    Ko Heon Hwan | 2009, 46() | pp.177~204 | number of Cited : 0
    Abstract
    Jeju April 3rd is the biggest incident which residents in Jeju were sacrificed under a false accusation in the process to reduce it and armed conflict in a dark political situation of liberation and division of the country. In the meanwhile, Jeju established 「 Special law of fact-finding and honor victim on Jeju April 3rd 」 on January 12, 2000 with bearing fruit by civic groups' continuous campaigns. Also, it brought a insignificant result which supports medical and living expenses in the name of compensation on social security and honor victim of views. However, we can not find it the regulation of victim's relief measure in relation to compensation and indemnification of the responsibility and people's responsibility on essential matter of Jeju April 3rd. A real solution of Jeju April 3rd should be sought for countermeasure of psychological  physical relief measure for the bereaved and victims were sacrificed on a false charge without any reason in the historical  political maelstrom to the way from liberation to division over ideological ideas after investing the truth of it. Therefore, this thesis considers responsibility and ground of Jeju April 3rd victims to complete and expand the relief measure which is only stopgap measure on current special law and shows a way to go by examining legal principle about relief measure.
  • 9.

    Conditions for Legitimacy of Internet Regulation in Korea

    Kwon, Hun-Yeong | 2009, 46() | pp.205~236 | number of Cited : 5
    Abstract
    Korea has created one of the most advanced and dynamic cyber cultures in the world in less than 10 years. However, it has encountered many normative problems during the development processes. As far as Korea's industrialization and democratization are concerned, Korea took relatively shorter amount of time than any other countries in the world. It seems that Korea's informatization follows the same pattern as Korea's industrialization and democratization. However, with the birth of the conservative administration in 2008, the government turned into reinforcing the Internet regulations which created a strong opposition from liberal side. Nevertheless, this kind of controversy is essentially made by the difference in human being of the subject of the norms. Since modern times, most Koreans have not been treated as the subject of the norms even though they should have been. Today, these Koreans demand their position in cyberspace. This kind of democratic demands can finally be understood as norms when these demands have procedural legitimacy based on predictability and expectancy for the subject of the norms and observance. n order to make it happen, we need to work on actual collaborations in the areas of ensuring civil participation during legislative process, strengthening private and public partnership, and specifying practical normative power not individually but as a nation for netizens. The national assembly needs to open discussions related to regulations over the Internet with a little more open mind.
  • 10.

    The legal characteristics of police-responsibility in Cyberspace

    Kim, Do-seung | 2009, 46() | pp.237~256 | number of Cited : 8
    Abstract
    The factors of risk society are dismantling communities, increasing anonymity, collapse of national boundaries due to the development of public transportation and communication, and sudden increase of natural disasters. The modern society which can be characterized as information society needs to pay attention to appearance of a new space, the cyberspace, which transcends traditional physical one according to the development of information communication technology and its dysfunctions. Thus, the cyberspace represented by the internet, has various forms of risk-generating possibilities such as spread of harmful materials for minors, spread of libelous false rumors, and paralysis of business and outflow of personal information through hacking or computer viruses, with peculiarity of anonymity of doers, non-existence of central administrative organization, promptness of circulation of information and a wide range of ripple effects. These possibilities not only mean the domain of risk-generation in police law, but also give rise to the limit of regulation and theory of the existing police law on the assumption of physical space. In this situation, the theoretical establishment of administrative law about the regulating system responsive to various reverse function of information society will accomplish the peaceful existence of community from diverse risk of information society. Also, it will withdraw the problem of unnecessarily bloated criminal law, particularly excessive criminalization, and it's meaningful in winning the discussion of regulating cyberspace as the main part of administrative law. Especially, renewing the issue of the subject of invocation in cyberspace police through police-responsibility(‘Polizeiverantwortlichkeit’), the paper looks at the particularity of police-responsibility and raises the problem of indirect regulation in current illegal circulation of information. In order to scrutinize them, the risk factors threatening public peace and orders in cyberspace are classified into cyber aggression and illegal circulation of information, discussing ground, limit and distinctiveness of police operation according to each type to demonstrate that the invocation of police power must be carried out considering the characteristics of both types and in different purpose and manners.
  • 11.

    A Legal Concept of the Convergence of Broadcasting and Telecommunication

    KIM, MIN HO | 김현정 | 2009, 46() | pp.257~290 | number of Cited : 7
    Abstract
    According to the development of science and technology, a new service which is called a convergence service of broadcasting and telecommunication appeared. Usually such a convergence service includes both characters of broadcasting and telecommunication services and it is called a midterm sphere service or a boundary sphere service. A lot of discussions got accomplished about this subject, because the present legal system is based on the traditional broadcasting and telecommunication system, and the ordination of the legal system for the new convergence system is insufficient. Especially the discussions went on progress to regulate if it's more adequate to subsume the convergence service into the broadcasting sphere or into the telecom- munication sphere, or even in a new tertiary sphere. However, broadcasting and telecommunication have different legal concepts, and the ideological pact of the regulation and the regulation principle of the two services are different from their legal roots on. In the case of the convergence of broadcasting and telecommunication service, this one has both characters of broadcasting and telecommunication. So if the convergence service is subsumed into one traditional legal concept, the basis of the broadcasting and telecommunication system will collapse. In addition, broadcasting and telecommunication are different in their constitutional fundamental rights and these rights cannot be converged. If the convergence of broadcasting and telecommunication is defined in a legal concept, it results to a convergence of the fundamental rights of the constitution. This thesis recognizes this problem, and the principal main subject of this thesis is about the adequacy of the legal concept of the convergence of broadcasting and telecommunication, the technological concept of the convergence is of course possible. According to these analysis, the regulation ideology and theory of the convergence of broadcasting and telecommunication is not a theoretical fusion of the regulation ideology and theory of broadcasting and telecommunication each, it is only a pilled mix of them. Thus, each fundamental right is just entangled and there does not exist any new fundamental right. That means that the convergence of broadcasting and telecommunication might exist in a technological concept due to the fact that it has elements of both broadcasting and telecommunication, but it cannot become a legal concept. The convergence of them is only a technological concept, and in legal matter the broadcasting part of the convergence has to be handled just as broadcasting, and the telecommunication part of the convergence has to be handled just as telecommuni- cation. The convergence of broadcasting and telecommunication must be understanded as a "Broadcasting․Telecommunication" as a individual concept each.
  • 12.

    A Legal Issues about Personal Information Protection in Private Sector

    KIM, IL HWAN | KIM, MIN HO | 2009, 46() | pp.291~318 | number of Cited : 20
    Abstract
    Privacy information protection in ‘public sector’ and ‘private sector’ may be identical according to the phenomenological concept ‘privacy information protection’ however, there are enormous differences according to the legislative technique in regulation objects, purposes, and specially measures. Collecting privacy information in public sector is most likely an ‘administrative investigation’ to collect information for administrative purpose, and in private sector collecting information is for ‘business activities’. In addition, the privacy information protection law in public sector has another purpose, which is to secure efficiency of administrative acts by “using or applying personal information” under the major premise of protecting personal information. On the other hand, the privacy information protection law for private sector not only has a principle to “protect personal information” but has a constitutional principle called “free market economy system”. Thus, the privacy information protection law for public and private sector has a difference in legislation principle; regulating public and private sector as a bundle is to be evaluated as exceeding the limitation of legislative technique. Therefore, legislative theories find that it is appropriate to separate the privacy information protection law of public sector and private sector, nevertheless we can't deny that it is difficult to clearly separate the two areas as two different laws because both sectors has a reiterative area and they share a phenomenological purpose which is to “protect personal information”. In conclusion, it is advisable, setting one law just as the German legislative model, to separate “general and common regulation”, “personal information protection in public sector”, and “personal information in private sector” in a separate compilation or chapter.
  • 13.

    Judicial Review to Agency Interpretation of Statutes

    Dongsoo Lee | 2009, 46() | pp.319~338 | number of Cited : 4
    Abstract
    Every agency decision must be anchored in the language of one or more statutes the agency is charged to implement. Every agency-administered statutes contains ambiguities. It is impossible to draft a statute with sufficient precision and foresight to resolve each of the hundreds of issues that are likely to arise during the life of the statutes. Two institutions play major roles in giving meaning to agency-administered. ①In NLRB v. Hearst Publication, 322 U.S. 111(1944), the Court affirmed a decision that agency's construction of statute, it is required to implement muse be a reasonable basis of law. ② In NLRB v. Bell Aerospace, 416 U.S 267(1974), Court ignored the agency's construction of its statutes and substituted the court's independent construction for that of the agency. By the way, The Court announced the abandonment of its traditional treatment of agency constructions of agency-administered statutes in Chevron v. Natural Resources Defense council, 467 U.S. 837(1984). Chevron is one of the most important decision in the history of administrative law. Chevron's presumption regarding the appropriate institutional locale for policy implementation in the face of statutory silence creates significant ambiguity of its own. Specially, it leaves unclear which of the interpretive tools traditionally need by judges to guide their independent judgment about the best construction of statute survives circumscription of the judicial interpretive role.
  • 14.

    A Legislation Model of the Korean Environmental Law : Focusing on the German Environmental Law

    Sung Kyoung Ahn | 2009, 46() | pp.339~358 | number of Cited : 2
    Abstract
    In Germany there are many codified laws such as the Code for Civil Law (BGB), which, when the idea of its codification was first introduced, caused heated discussions for and against it, but now is proven to be useful. So does the codification of Environmental Law in Germany, which has been progressed since the 1980s with intense discussion of its use. However, the House of Representatives of the German Parliament (Bundestag) could not pass the resolution for the Code for Environmental Law (UGB), supposed to be promulgated in February 2009, which becomes a huge setback. According to the Minister of Federal Department of Environment, Ms. Sigmar Gabriel, the reason for this failure was that at that time, there was disagreement between CDU and SPD at the council level and she was optimistic that there would be a new council to be formed in the Parliament so that this proposal for codification would be passed through the Parliament. The codification of the current Environmental laws, both federal and every 16 states, is evaluated as meaningful in Germany, despite the fact that there are still serious conflicts, oppositions and many inherent problems ahead . In the meantime, the Korean Environmental Law was started in 1963 as the Environmental pollution Act, a single law laying out the groundwork for the future legislation on the environment. Today, multiple codes have been enacted such as the Environment Conservation Act in 1977 and Environmental Policy Act in 1990. Note the plural codes system has organized the contamination by each kind and each measure and sorted contaminants systematically. Therefore, this approach has been assessed as effective to overcome rigidity and to take concrete and timely measures. However, there are still issues to be resolved: the uneven distribution of the regulations, and the dual-regulation problem, the lack of systematic uniformity. Today, with the development of environmental law in South Korea, the discussion on the uniform codification of environmental laws becomes active and it is now timely to bench mark the progress of such development in Germany.In this paper, with an overview of the development and the progress of German environmental codes, we will discuss integration process which gives us the direction on how to deploy the future legislative efforts in Korea.
  • 15.

    Problem and Improvement plans of sysem of simplified taxation on the Value-Added Tax Act - Combined with the Unconstitutionality of standard provision for exclusion of simplified taxation -

    Hiehoun Lee | 2009, 46() | pp.359~376 | number of Cited : 3
    Abstract
    Simplified taxation system of Value-Added Tax Act is a taxation exception system that exempts the duty of tax payment by the grounding data such as tax accounts to small si zed private businessman with the sales less than 48 million won of goods or service in a year, differently from general tax payer. However, simplified taxation system, under Value-Added Tax Act, clause 25, article 1, enforcement ordinance of the foresaid Act, clause 74, article 2, and the foresaid Act, enforcement regulations, clause 23-2, article 2, 3, and noti-fication of National Tax Service No. 2008-23, is an unconstitutional regulation contrary to principle of taxation equality since it causes imbalance of tax burden between general taxpayer and simplified tax payer and the standard of exception of simplified taxation system is different per region without rational reason by simplified tax payer’s avoiding the receipt of tax accounts and omission of taxation standard. Therefore, the foresaid system should be abrogated and integrated to general taxation so the order of giving and receiving tax accounts should be recovered and fairness of tax burden should be secured. Meanwhile, the standard of exception of simplified taxation system under Value-Added Tax Act is not defined in Value-Added Tax Act, clause 25, article 1, but defined by general delegation to enforcement ordinance, enforcement regulations, and notification of National Tax Service of the foresaid Act, respectively. It is considered not to be contrary to principle of legalism in assessment requirement since it is not considered as general delegation, because ‘types of business, scale and region and so on considered' is difined in Value-Added Tax Act, clause 25, article 1, number 2.
  • 16.

    A Study on the Reforms of Administrative Procedure in the Local Government of Japan

    Jang Kyo-Sik | 2009, 46() | pp.377~398 | number of Cited : 1
    Abstract PDF
    In accordance with the Administrative Procedure Act in Japan, local governments shall take the responsibility for implementing the Administrative Procedure Act and have the obligation to put an endeavor in accordance with Article 46 of the Act above. In other words, local governments shall make an endeavor to take the necessary actions in order to secure the fairness and improve the transparency in the admi- nistrative operation in accordance with the purposes of the Administrative Procedure Act related to the administrative measures and guidance and application process that are not subject to the provisions of Chapters 2 to 5, Clause 2, Article 3 of the Administrative Procedure Act. Furthermore, it is required for local governments to maintain the appropriate procedures for regulations including independent approval and permission of local governments related to the establishment of guidance for the administrative innovation in local governments. Accordingly, the local governments in Japan have been maintaining the administrative procedure ordinances in the legislative aspects and accumulating the unique implementation cases of administrative procedures. First, the change for the 10 years since the establishment of the Administrative Procedure Act in Japan and the revisions up to now were examined. In particular, Japan added the administrative legislative proceedings to the Administrative Procedure Act and the comment proceedings were substantially changed. Thus, the reasons for the revision of the Administrative Procedure Act and major changes were investigated. Next, the establishment, implementation and major contents of administrative procedure ordinances by local authorities in accordance with the Administrative Procedure Act were analyzed. The Administrative Procedure Act of Korea specified the obligation to establish and publicly announce the standards of administrative measures beyond the execution of disadvantageous measures. However, the legal question on the administrative regulations with respect to the legislation proceedings of execution standards and the legal question in accordance with the establishment of standards by the legal decrees have been discussed in Korea. The maintenance of administrative procedures by the ordinance is the important legislation form in Japan. The legislation and operation status of administrative procedures in local authorities will be the important reference for the local authorities of Korea in terms of the practical implementation of the local government system in Korea and maintenance by the administrative procedure ordinances. Finally, the actual maintenance and implementation of ordinances by local authorities for the administrative procedure innovation in Japan were analyzed. To this end, this study identified the suggestions related to the comment proceedings from the implementation status by local authorities in Japan. Furthermore, for the imple- mentation status by local authorities according to the implementation of an online administrative procedure system, the policies of local authorities in accordance with the Online Administrative Procedure System Act were examined. The empirical examination n the administrative procedure innovation by the local authorities in Japan will be a useful legislation model for the administrative procedure innovation by the local authorities in Korea and furthermore, for the successful settlement of administrative procedure in Korea.
  • 17.

    Reexamination of the Essence of State Liability of Reparation and Prerequisites for Its Validity :With Focus on 「State Compensation Law」, Article 2

    JOUNG YOUN BOO | 2009, 46() | pp.397~428 | number of Cited : 4
    Abstract
    This research is to examine actively discussed point at issue among diverse issues related to the essence of the state liability of reparation and 「State Compensation Act」. With regard to this, although this research is based on the preceding researches, new opinions were presented from the new viewpoint. With regard to the nature of the state liability of reparation, its historical development process was analyzed and based on the development process, the understanding of the current legislative system and the direction of development were explored. Toward this end, the existing discussions on the nature of the state liability of reparation were divided into the normative premises and the realistic premises, and it was examined based on the normative premises. This research viewed the legal relations of the state liability of reparation as trihedral relations, and divided them into the core relation and dependent relation. This is based on the fact that the results derived from the history of the 「State Compensation Act」 that the system of the state liability of reparation has developed based on the recognition of ‘the state’s responsibility’ focusing on the causal action of ‘the public law’s administrative action.’ The research was conducted on the difference between the core relation that is the relation of ‘the state and the people’ and the dependent relation that is public officials’ internal and external responsibility. This research attempted to understand the nature of the 「State Compensation Act」 as the system of the state liability of reparation from the viewpoint of the public law. The interpretation of Article 8 of the 「State Compensation Act」 was considered so that the theory of public law can be maintained. Finally, the major arguing point of Article 2 of the 「State Compensation Act」, aims to remove the gap between the normative system and the realistic legal systems from the viewpoint of the development of the state liability of reparation system.
  • 18.

    A study on the Utilization and Development of Alternative Dispute Resolution for Game dispute

    Sang Ki Chung | 2009, 46() | pp.429~448 | number of Cited : 0
    Abstract
    In culture contents business, the part having global competive power is online game in the present. Online game is being new business place and it's potential growth is more huge. However in developing game business various preparing system necessity occured. Important problem is trouble of the game. Game business is growing and game user is incleasing but reality is there's no prompt system for solving game trouble and solving popular complaint. So, this research examine in rapid increase of game trouble people's recognition or revitalizing healthy game culture on game business how to be in substance game trouble solving windows.
  • 19.

    A study on Terrorism and Security of Fundamental Human Rights

    Kim, Jong-Oh | Lee Dae Sung | 2009, 46() | pp.449~468 | number of Cited : 7
    Abstract
    The collapse of cold war caused by ideologies gave the feeling of relief and the hope to the international society that the peace and stability have finally arrived. However, in the process of international order reorganization by western countries such as USA, the international society began to pursue the profit of international and economic community as well as that of the member countries themselves through the changes in the concept of security. During the process, USA and other western countries started to expand the scope of security to economics, culture and resources as well as politics and military sides based on the broad concept of security. In the mean time there were conflicts on the resources in Middle East and anti-america nations and organizations chose to perform 9․11 terror to express their ideologies and opinions. The new terrorism after 9․11 have certain characteristics. First, they do not have clear requests nor conspicuous subjects. They perform terrors sacrificing their own lives. It is difficult to identify their organization because they have set up an network all over the world using IT technology actively. Additionally, terrors occur concurrently and consecutively, there is no other way than prevention. Second, it infringes all the values that should be protected by law such as private, social and national values. Third, terrorists sacrifice their lives for the crimes so there are many cases that there are no actual people to be punished because they are already dead. Additionally as they have secure faith in politically or ideologically, it is very hard to expect actual improvement or changes in their thinking or behaviors. Therefore in this study we have tried to make the information collection and intelligent jobs more effective to prevent terrors in advance. For this purpose, we discussed how to sensor or monitor mails and electronic communication that can infringe the human rights by limiting it to the violent behaviors of terrors. Additionally, the prolonged monitoring under the current Communication Secrecy Law was mentioned. Second, to make thee investigation more efficient, it was discussed to improve the role of special police who are dedicated to terrors to prevent terrors as there are more cases that the attackers are already dead men because of the crime itself.
  • 20.

    A Study on the Problem and Reformation of Government System on the Present Constitution

    신평우 | 2009, 46() | pp.469~490 | number of Cited : 1
    Abstract
    Korean political culture has been changed to the consociational political culture since various kinds of group have appeared and co-existed in the knowledge and information society. The multi-party system has become into generalization in Korea by the regionalism in the politics and by the proportional representation in the election. Most of political parties pursuit the policy party inside National Assembly. The proportional representation seems to be more adopted. Localization of the power has been accelerated by local self- government(autonomy). The presidental system is in accordance with majoritarian democracy, two party system, election party and plurality election, and the power sharing presidental system is in accordance with consociational democracy, policy party, proportional representation, second ballot system and localization of the power. Accordingly the power sharing presidental system currently seems to be more suitable than the presidental system in Korea The political effects of "the power sharings presidental system" shall be as follow; 1) the deadlock between the president and the National Assembly(congress) under the divided government can be coordinated institutionally by cohabitation. 2) the responsibilities of the politicians and the political parties shall be increased by power sharing between the ins and the outs. 3) the party politics shall be developed as the political party mediates the administration and the National Assembly like the political party under the parliamentary government system. 4) the potential political leaders can be trained and verified since governing under the power sharing presidental system is done by group, not by personal, and the problems of amateurism can be reduced by mitigating the rupture of the experience of a government which may be happened frequently under the presidental system. 5) the conflict coming from the fact that a leader acts the both roles as the head of state and the head of government at the same time shall be solved by separating he head of state from the head of government. So the reliance on the national policies can be increased as the evaluation and the responsibilities of the preceding government are succeeded through the political party. Therefore, if we intend to change the 6th republic government power structure, we may consider "the power sharing presidental system" as the alternative one.
  • 21.

    A Constitutional Approach on Education Autonomy and Competence Distribution Between State and Local Government in Education

    PILWOON JUNG | 2009, 46() | pp.491~514 | number of Cited : 10
    Abstract
    This is a study on what the education autonomy is and what the constitutional basis of education autonomy is, and what the local education autonomy is and what the constitutional basis of local education autonomy is, and what the principle of competence distribution between state and local government in education. An outline of this study is as follows : According to the result of this study, education autonomy is the term which secures a self-determination without outside interference for achieving a education's goal. Education autonomy is based on the independence of education in Article 31 Clause 4 of the Constitution of Republic of Korea(ROK). Local education autonomy is the unit of local autonomy and education autonomy. Two terms are not linked inevitably, but legislator of Korea links local autonomy and education autonomy. So local education autonomy is based on Article 31 Clause 4 and local autonomy of Article 117 and Article 118 of ROK. Finally, I assert that the Principle of Subsidiarity is not a principle of competence distribution between state and local government in education in this article. These conclusions help us to discuss more effectively based on the constitution hermeneutics when we design a local education autonomy system