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2010, Vol.50, No.

  • 1.

    The Legislation System on Land Use Planning of Korea

    Bae Young-Kil | 2010, 50() | pp.1~22 | number of Cited : 6
    Abstract
    The purpose of the Legislation System on Land Use Planning of Korea is to contribute to the sound development of the national land and the improvement of the national welfare by providing for fundamental matters concerning the formulation and implementation of plans for and policies on the national land. Recently, many legislation on national land planning has been made, espacially in 21st centuries. But in many cases, Legislation on national land planning in Korea has been enacted without elaborate interrelation between national plans and rules. Accordingly it is very hard to recognize the exact restrictions on the specific place in Korea, in spite of the owner of the land or the specialist on public land law to. Moreover recently, the government has enacted many special statutes to arrange the foundation for development of the province or to build a new administrative capital and so-called innovative cities. These newly enacted statutes have very different contexts from the existing positive lawsystems. Thus, these actions will make the conditions to be more difficult. In order to solve these problems mentioned above, this article will suggest some solutions mentioned below. First, concerning the area or district, where the regulation of land use is applied, it is needed to reduce regulations on the specific area or district. Meanwhile, for the long term, it is necessary to change the system of national land management from regulation on specific use-oriented to the planning-oriented system as in Europe countries. Secondly, a fundamental and integrate Act on the enforcement of development project is needed. And, it is recommendable that the number of many special laws on land should be reduced. Especially, Korea Constitutional Court declared disagreement with Constitutional law on The Urban Program Act, article 21 in 1998, and urged a proper legislation which fits the 20th century. Thus the special law according to the above decision was enacted in 2008, but this law should be integrated into the above fundamental law. Third, Groping for systematization of municipal law is recommendable. Because, in order to work out the complicate problems systematically, it is necessary to approach in larger and more integrated scale(method).
  • 2.

    Das Rechtssystem der Raumordnung in der Bundesrepublik Deutschland

    Im, Hyun | 2010, 50() | pp.23~42 | number of Cited : 5
    Abstract
    Die Raumordnung in der Bundesrepublik Deutschland sind im Gesetz begründet. Die Länder haben große Befugnisse über Raumordnung wegen des Dezentralisationssystems. Nach der Änderung des Grundgesetzes durch die Föderalismusreform ändert die Rahmengesetzgebungskompetenz sich zur Abweichungskompetenz. Entsprechend dieser Änderung haben der Bund und die Länder eigene Gestaltungsspielräume über die Raumordnung. Dennoch handelt es sich um das Prinzip der Konkordanz und die kooperative Föderalismus wie früher im Gesetzgebungsverfahren. Das Raumordnungsgesetz bestimmt die Grundsätze der Raumordnung unter Berücksichtigung des Zusammenhangs mit den Grundrechten. Damit können die Raumordnung der Verwirklichung der Grundrechte dienen. Und das Gegenstromprizip für den Ausgleich und die Übereinstimmung der Befugnisse von jeden Planungsträgern ist besonders wichtig. Für effektive rechtliche Kontrolle über Raumordnungsplan ist die Kontrolle durch das Verwaltungverfahren erforderlich. Um diesen Zweck zu konkretisieren, bestimmt das Raumordnungsgesetz und Baugesetzbuch die Zusammenarbeit von Bund, Länder und Gemeinden, Beteiligungsverfahren der Öffentlichkeit und die Übertragung des Planungsverfahrens zu einem Dritten.
  • 3.

    The Study on Japan's Land Planning Laws

    Jae Kwang Kim | 김경덕 | 2010, 50() | pp.43~68 | number of Cited : 0
    Abstract
    Japan's structure for land plan or comprehensive plan etc. are similar to our countrys' in enacting land planning laws. According to the Japanese domestic general assessment to Japan's land planning section for a long time, Japan's land planning section was maintained uniform legal system driven by nation to focus land development, as a means for urban development and economic development, therefore, it has been criticized for apart from the actual life of residents, local activation and so on. The Japan has kept carrying out various measures under integrated plan - a strong centralized top-down, so-called from center to province - through the nation in the notion of development from the area of economic development. It has affected nature of each law to govern land use or land plan. In other words, the basic features of Japan's land-use and planning laws seem to be focused on development-oriented and government-led system. However, Japan's government has introduced the various measures into recent law-amendment to correct the problems of conventional land use and planning laws, such as urban planning act, landscape act and so on. Of course, this action means not only the revision of the legal system but also a change in idea of land. That is, the philosophy - after recognizing the limitations of state-driven and unilateral planning laws, and then making and enforcing local planning on the basis of forming opinions and gathering opinions in each province, on this, land development must be balanced with the overall - is lying at the bottom. Furthermore, it represents the change of philosophy on the freedom of architecture or development based on absolute ownership principle questioned so far, and the minimum regulatory principle in police administration.
  • 4.

    Legal System and Issues for Land Use Planning and Control in U.S.

    KIM, JEEYEOP | 2010, 50() | pp.69~93 | number of Cited : 8
    Abstract
    This article explores the legal system for land use planning and control in the United States. To do so, it begins with the historical development of the U.S.'s land use planning and control. And then, it examines the legal structure and system for land use planning and control, and analyzes the major legal issues regarding land use law. The findings of this study are as follows. First, the legal system for land use planning in U.S. began to cope with the serious sanitary problems for housing due to the rapid industrialization in the late 19C and has been evolved through developing the various zoning techniques and dealing with environmental issues. Second, local governments are delegated to adopt and implement land use system by enabling laws. Third, zoning is the core tool to regulate land use, which is supplemented with subdivision law. In addition, private land use laws, such as nuisance and servitude including easement and covenant, still play an important role in regulating land use matters. Fourth, the major legal issues center around ultra vires, due process and regulatory taking under the Fifth Amendment, the Free Speech clause under the First Amendment, and the Equal Protection clause under the Fourteenth Amendment.
  • 5.

    A study on the use and control of Korea Land

    lee jae sam | 2010, 50() | pp.93~124 | number of Cited : 7
    Abstract
    First of all, according to Basic Land Law, it is desirable that land plan should start with comprehensive outline about overall land based upon basic and long-term development direction, followed by regional and sectorial plan. Also, it is desirable to set up city plan by purpose according to land plan and use law. Specifically, comprehensive land plan should include long-term policy direction such as land status, environment change, realignment of space structure and regional function direction, enhanced national competitiveness, improved nation's life, effective use and control of land resources and environment preservation and improvement for land development. Also, it is important to recognize ‘No plan, No development’. Therefore, 'First plan- Second development' mechanism should be established in terms of land use. Thus, from land plan to development, legitimity of land should be established. For the most effective and efficient land use, consistent land control measures should be set up and efficient land use should be enhanced and land use should be controled in order to give stability and justice in land use. In order to achieve ultimate goal of land use regulation effectively, transparent land regulation and convenient land use by the public are prerequisite. In other words, it is necessary to simplify and clarify land use regulation. For sustainable development and effective land use, land development should focus on ‘First plan and second development’ mechanism. It is also important to pursue the development, considering eco-friendly, equal development and competitive land environment. Due to strong publicity and sociality of land, in terms of exercising ownership, use and development of land based upon personal ownership guarantee, the public interest is greatly violated. In terms of plan, use and development of land, damages toward land owner and local residents continue, causing obstacles to effective land control. Thus, proactive care toward land owners whose ownership has been violated due to public regulation, is crucial for ownership guarantee and enhanced land competitiveness. Thus, legislators should institutionalize various remedies and rewards through deregulation of land, giving acceptance application, right to request purchase and financial reward.
  • 6.

    A Review the Problem of investing the Private sectors with Eminent Domain on Residential Site Development Project

    Jeong Kuk Won | 2010, 50() | pp.125~148 | number of Cited : 5
    Abstract
    Korean Residential Site Development Promotion Act grants the eminent domain by the private sector for smooth residential land development. The problem is that due to the national generality․extensiveness of residential land, grant of eminent domain by private sectors would be shown a full-fledged grant of eminent domain. To resolve such problem, it should be defined more rigorously than eminent domain by private sectors in another specific area. In addition, unlike national works or government business, public services by expropriation by private sectors or private enterprises cannot assure continuous ex-post achievement in profits. If their genuine purpose, pursuit of profits doesn't come up with the conduct of competent public work, there is always a risk that the achievement of the public work would be neglected or given up. In case of granting eminent domain to private sectors, the requisite and use should be regulated more strictly rather than one of public sector to enhance the public interest and sort out companies with the object of the pursuit of profits to some degree. Also, unlike expropriation by public institutions, another problem is that there is no compulsory measure to continue the performance of a project in expropriation by private sectors. A way to resolve this problem can be expropriation by public-private corporation. In case of a process is done by private joint corporation, even if a private enterprise back out, a state or public institution that could finish the performance will remain and complete the project in the long run.
  • 7.

    The alternative discussions on takings law in Korea

    JEONG, HA MYOUNG | 2010, 50() | pp.149~170 | number of Cited : 11
    Abstract
    The Korean Constitution provides for just compensation in cases of takings : Article 23 (3) takings, use, or restriction of private property from public necessity and compensation therefore are governed by law. It is stipulated by “Act on the Acquisition of Land, Etc. For Public Works and the Compensation Therefore of 2010” (the Compensation Act). The purpose of the act is to “ensure a promotion of public welfare and a pertinent protection of property rights through an efficient implementation of the public works, by prescribing the matters for indemnity of any loss incurred by the acquisition or use of the land, etc. required for the public works through consultations or expropriation.” Chapter VI of the Compensation Act outlines the possible types of indemnities and relevant methods of payment to be made to the “landowner or person concerned for any loss incurred by acquisition or use of the land, etc. required for public works.” Besides lawful landowners, “person[s] concerned for any loss” are also included in the compensation scheme. It may protect tenant's interests. There is no proper compensation for the evicted tenants according to the acts. South Korea has had decades of social unrest resulting from the lack of compensation, The act also has some provisions about the repurchase right for the taken property' owner. The pre-requisition of repurchase is too difficult to meet and the government also has the power change the public projects to keep the land for public purpose. The government is needed to introduce civil penalties to disgorges windfall-profits from curmudgeon and some kind of shield to deflect the ever-mounting resistance.
  • 8.

    국토관리에 대한 평가와 과제

    Kim,Young-Sam | 정사언 | 2010, 50() | pp.171~190 | number of Cited : 0
    Abstract
    국토질서의 혼란은 국민의 생활기반에 커다란 타격을 가할 수도 있으므로 국토에 대한 국가의 개입은 매우 중요하다. 국토는 다른 재화와 달리 항구적으로 사용되고 모든 국민의 삶의 근원이 되는 것이다. 국토관리는 국토의 균형 있는 개발 또는 합리적인 국토의 이용질서를 도모하기 위하여 종합적인 측면에서의 계획작용과 개별적 내용의 규제작용을 그 대상을 하는 국가작용 내지 지역사회의 사회적․경제적․문화적 발전의 기반이 되는 기초조건을 기본으로 하고 있다. 나아가서 국토관리는 비이용자원이나 토지 또는 생활공간을 효율적으로 이용할 수 있는 상태로 조성하여 전체로서 지역사회와 국토를 적극적․계획적으로 장래에 향하여 형성하는 국가활동인데, 국토관리에 관한 법체계가 국토의 유지․보존․개발이므로 이제는 냉온탕식 국토관리대책은 지양되어야 할 것이다. 이 논문에서는 국토의 개념을 살피는 것으로 출발하여 국토관리의 의의, 기본정신으로서의 기본원리와 기본원칙, 그 간의 주요내용 및 평가와 과제를 국토의 핵심인 토지를 중심으로 고찰하고 있다. 즉, 국토관리의 평가와 과제를 중심으로 알아본 후 과거의 국토관리가 가지고 있는 문제점과 그에 대한 해결방안을 제시하여 국토관리의 올바른 방향을 제시하고자 한다.
  • 9.

    A Legal Review on the Rejection Disposition against Alteration Request of Land Parcel Category - focused on the Gunsan Country Club -

    Hyun-Joon Lee | 2010, 50() | pp.191~218 | number of Cited : 1
    Abstract
    This study aims to examine the arguable problems and legal issues of land parcel category alteration between public administrative office and a private person by analysing the concrete example focused on the Gunsan Country Club. In order to achieve this goal, I have intended to investigate legal principles of issues by annotating the existing documents and judicial precedents. Then, I described the core of a topic for discussion in details. After studying, I recognized that the decision of Gunsansi office which the whole land parcel category of Gunsan Country Club site should be sport lots has problems of inequality because the site has been established as a golfing country club by the reclamation of salt field unlike general one. And also there were some misunderstanding of legal principles when the Gunsansi office applied the law. Therefore, this study proposed that the public administrative office should rationally do an executive measure on the basis of the definite interpretation and application of law in rejecting the individual request of land parcel category alteration. In addition, we suggested the legal improvement to act up to the various alteration of land parcel category.
  • 10.

    The examination of the law enforcement right of a local self government to manage a crisis.

    Won Jung Kim | 2010, 50() | pp.219~240 | number of Cited : 3
    Abstract
    The meaning of present crisis includes disasters. As a complex concept, the crisis not only occurs with a calamity in the reality but also with mass medias including the internet, leading to bring about a chaos in a society. Thus, it takes place in various types. while in the past one dimension crisis had been mainly misfortune, now it is transformed to second dimension that breaches the public order and dangers social communities through real- time changing information. In order to respond to the diverse plights we have been taking necessary measures and establishing a net of system effectively. But those are not sufficient to deal with the rapidly increasing crisis. Autonomy operated in Korea, for example, reveals its limitation. Although having an independent decision-making right, a local self government does not handle with predicaments swiftly and properly, because the only nation, not the local government, is entitled to respond to those crises. So it is necessary for the local self government to have the law enforcement right so that it could deal with the calamity successfully and rapidly by making appropriate plans. This study examined, therefore, a cause for the law enforcement right that the local self government has and it also reviewed its legal limits. By studying those it is needed to build a legal system to make sure the effectiveness of the law enforcement right of the local self government so that it could actively correspond with the future misfortunes.
  • 11.

    A Study on the Improvement of Enforcement Fine in the Present legislations

    Lee, Dong-Chan | 2010, 50() | pp.241~271 | number of Cited : 5
    Abstract
    Enforcement Fine is the System that obliger can be imposed on repeatedly until its obligation is fulfilled. Financial pressure can be effective to make obliger fulfill his own duty. Enforcement Fine has more Psychological pressure than negligence fines and administrative forfeiture do, but the likelihood of infringement of the obligor’s rights may be increased. Enforcement fine has been introduced on May 31st 1991 with the legislation of the Construction Act and has been adopted by 24 legislations after that. The adoption of enforcement fine in the future legislations will be increased. Enforcement Fine is imposed when obligation isn't fulfilled after rectification order. If the duty to act is replaceable, execution by proxy should be practiced in general, but the enforcement fine could be used as supplement if execution by proxy is not adequate for the situation. Enforcement fine in the existed law ,however, is adopted without enough examination. There is no clear criterion, and there are a lot of laws that need not to be introduced, and the problems in imposition and the appeal process of enforcement fine should be improved. This thesis is research on these problems and improvements.
  • 12.

    A Study of Cultural Policy

    Jang Kyo-Sik | 2010, 50() | pp.273~294 | number of Cited : 4
    Abstract
    Cultural policy refers to public policy on culture. It is one of the critical duties of the modern administration to promote cultural administration to guarantee cultural civic rights in the establishment of a cultural policy through the administrative process by the central or local government. At its core, the role of a cultural policy is to facilitate voluntary civic activities and improve conditions to help all citizens be able to enjoy culture at the same time. Cultural policy is the process of taking the necessary actions for a cultural renaissance by giving support to the arena in which it is limited through individual activities and the correction of imbalances. In modern times, cultural policy and evaluative issues including the protection of cultural heritage have become global issues. The continued improvement of cultural grounds to meet citizens’ cultural needs, encourage various art activities and offer more opportunities to participate in cultural activities is needed. In addition, we must be more active in the preservation and use of cultural heritage and international cultural exchanges. For this, it is necessary to diagnose cultural policies after analyzing related laws and regulations and establish major tasks for cultural policy. Ultimately, cultural policy should allow all citizens to enjoy culture together by narrowing the current cultural gap. Local governments must come up with a customized local culture. We must promote a culture industry that incorporates modern advanced technology and be active in international cultural exchanges. For this, the securing and significant increase of cultural financial resources is needed.
  • 13.

  • 14.

    Legal Issues about Integrated Pollution Prevention and Control(IPPC)

    KIM, MIN HO | 양은영 | 2010, 50() | pp.321~346 | number of Cited : 6
    Abstract
    Integrated Pollution Prevention and Control(IPPC) has become an idealistic environmental prevention concept in developed countries and corresponds to the principal of Industrial Ecology. The concept of emission regulatory integration is a key factor for an integrated environmental management system. While most EU member countries have a cross-media regulatory system, Korea has a media-specific regulatory system which was discovered to have many environmental management problems. The European Union has adopted the Integrated Pollution Prevention and Control (IPPC) approach to control the pollution problem and has prepared the Best Available Technique Reference (BAT, BREFs) for each medias. The purpose of this study is to integrate the emission regulatory system by solving the difficulties through procedural, organizational, and substantial analysis of integration. After reviewing the permit process of each law in Korea and related regulations of foreign countries on this study, we can identify the need for a improvement of the environmental pollution permit system in the short and long term. In order to this, the following ways have performed; the first is to determine the target on the integrated emission regulatory system. The second is to design a regulatory system model. Lastly, on the basis of this research, a revised bill for an integrated emission regulatory system is suggested. And the substantial analysis of integration focused on BAT needs to complement itself in order to make the integrated emission regulatory system operate normally as an environmental management policy and regulation method. Most of all, in the existing laws which is providing the emission regulatory system has delegated exorbitant authority to local government. In the aspect of administrative organization, it is reasonable to exclude specific competency of mandate from central government to local government for maintaining the essential power of central government. And also the government needs to get the most out of working group. Therefore, the improvement of legal system and administrative organization is needed urgently.
  • 15.

    Eine Betrachtung zur Polizeipflicht von Hoheitsträgern

    이상해 | 2010, 50() | pp.347~370 | number of Cited : 0
    Abstract
    Stört ein Hoheitsträger die öffentliche Sicherheit und Ordnung, ist es nach einem überkommenen Grundsatz des allgemeinen Verwaltungsrechts nicht ohne weiteres möglich, gegen ihn vorzugehen. Hoheitsträger gelten bis heute nur eingeschränkt als polizeipflichtig. Die Berechtigung dieses Pirvileges erscheint mehr und mehr zweifelhaft. Erforderlich ist neue Bestimmung von Sinn und Zweck des Grundsatzes. Eine zeitgemäße Rekonstruktion muss zur Revidierung tradierter Annahmen über die eingescränkte Polizeifplicht von Hoheitsträgern führen. Es gibt keinen tragfähigen rechtlichen Grund, den Polizei- und Ordnungsbehörden die Anordnungsbefugnis gegenüber anderen Hoheitsträgern zur Durchsetzung des Gefahrenabwehrrechts vorzuenthalten. Nur in sehr eng begrenzten Ausnamefällen können unter dem Gesichtspunkt der Sicherung öffentlicher Aufgaben die materielle Bindung an das Gefahrenabwehrrecht und damit auch die formelle Polizeipflicht entfallen. Es ist an der Zeit, dass sich diese Erkenntnis in Wissenschaft und Praxis generell durchsetzt.
  • 16.

    The application and the limitation of the Principle of the Good Faith and Fair Dealing to a taxpayer

    김영순 | 2010, 50() | pp.371~392 | number of Cited : 4
    Abstract
    The Principle of Good Faith and Fair dealing is applicable to the case of public law as well as civil law. Also it is applicable to the tax payer as well as tax authorities. This principle has been adopted in the National Tax Law. If this principle is applicable to the tax payer, court should proclaim to maintain the administrative measure although it is illegality. Korean Supreme court required three necessary conditions, when the principle is applied. Tax payer's self-contradictory behavior, severe betrayal and worth of tax authorities's trust. But actually we can hardly find the case which maintain the illegal administrative measure in the name of that principle. The case would studied in this paper was about the principle. Supreme court was applicable the principle, so maintained the illegal administrative measure. It is so the extaordinary case. But it is more or less questionable that tax payer did the severe betrayal and whether protect the tax authority's trust. The purpose of this paper is to survey the supreme cases and to find the limit and the required conditions of the principle of Good Faith and Fair Dealing. In conclusion the principle of the Good Faith and Fair Dealing should be adopted so limited, for example if tax payer would do the severe betrayal or disturb the authorities' audit. This studying judgement applied the same criteria to judge whether or not offend the good faith, and approved the good faith to the tax payer. But I think that it is contradict to the preceded judgement because it is not worth to sustain the tax payer's business license and tax payer didn't disturb the authority's audit.
  • 17.

    The problem of the personal exemption system in the Income Tax Act

    Wansouk Kim | 2010, 50() | pp.393~414 | number of Cited : 4
    Abstract
    The current global income exemption system is under criticism for being too complicated and lacking consistency among different global income exemptions. Furthermore, it allows arbitrary discrimination on matters such as whether or not to apply global income exemptions and the amount of exemptions on the ground of different income types, and brings about an argument that as a personal exemption falls far short of the minimum living expense to meet basic living conditions, it is against the Constitution. Thus, it is necessary to make a complete change to improve the problem of global income exemption system. To propose a concrete measure to legislatively improve it, it is as follows:First, it is necessary to reform the basic exemption in personal exemptions and to simplify the global income exemption system focusing on the basic exemption Second, if some items such as additional exemption for multiple children and special exemptions are to be left as before, there should not be any difference between different types of income. It should be changed to equally apply the exemptions provision to all types of taxable income. Third, regarding the purpose of the global income exemption system, there is no rational basis to limit the global income exemption system to taxpayers with global incomes. It should be corrected to allow an exemption for retirement incomes and capital gains. Fourth, as for a separate taxation on financial income, it should be corrected to permit taxpayers to choose between a separate taxation and a integrated taxation
  • 18.

    Zum geschichtlichen Verlauf des Parlamentswahlsystems

    Do-Hyub Kim | 2010, 50() | pp.415~436 | number of Cited : 4
    Abstract
    Die genaue Betrachtung dessen, wie die Parlamentswahlordnung und die damit zusammenhaengenden Wahlen im Laufe der Zeit bestimmt und gehandhabt wurde, und wie sie gewandelt hat und welche Eigenschaften sie heute hat, kann als eine wichtige Vorbedingung fuer den Aufbau des kuenftigen verbesserten Wahlsystems gesehen werden. Aus diesem Grunde behandelt dieser Aufsatz die inzwischen 18mal stattgefundenen Parlamentswahlen und die damals geltenden gesetzlichen Ordnungen, wobei der vorliegende Aufsatz von der 11. bis zur 18. Wahl behandelte. Es wurde daraus sichtbar, dass trotz der politischen Turbulenzen und Irrungen und Wirrungen aus den sehr wechselhaften Gesetzgebungen die wiederholten Wahlbeteiligungen der Buerger eine bestimmte Erhoehung des Lerneffektes in Sachen Wahl mit sich brachten. Durch dieses Lernen wurde das politische Verstaendnisniveau des Buerger erhoeht, und schliesslich konnte die Verbesserug der Wahlgesetze und des Wahlsystems und die dadurch gewonnene allmaehliche Legitimitaetserhoehung der Wahlen erzielt werden.
  • 19.

    Protection of Nation for Crime Victim -Focusing on the Crime Victim Protection Act 2010-

    김창휘 | 2010, 50() | pp.437~472 | number of Cited : 5
    Abstract
    People base relationships with others based on national and social connections. Also diverse human relationships are formed through political, economic, social and cultural affinities. But many problems arise in mutual relationships, the root cause of which may be difficult physical, mental and financial problems. When we examine modern society, we see the number of violent crimes increasing. This increase may be attributed to economic progress accompanying industrial development. But up until recently, legal authorities were more focused on the offender's rights when accused of criminal behavior. There has been little focus to the victims rights and the problems they face as a result of the criminal acts. It is not a desirable outcome for the nation responsible for enacting law and preventing crime to neglect the problems victims face. As a result, the Republic of Korea established a constitutional basis to address victims rights by Amendment to the Constitution. The Republic of Korea Constitution, Article 30: Citizens who have suffered bodily injury or death due to criminal acts of others may receive aid from the State under the conditions as prescribed by act. The Republic of Korea has established two acts that address this issue: the Crime Victim Protection Act (2005); and the Crime Victim Aid Act (1998). These were recently combined to establish the Crime Victim Protection Act (2010). This review examined the general theory related to crime victim aid, and additionally, crime victims' right of demand for redress. Also the focus reviews the key points of the amended Crime Victim Protection Act according to the issues, including the establishment of the Crime Victim Protection Fund Act and necessity of the Circumstantial Manual Description for the real recovery for crime victims.
  • 20.

    Eine Studie über das Wahlsystem Deutschlands

    Shin, Okju | 2010, 50() | pp.473~498 | number of Cited : 7
    Abstract
    2008 wurde das Bundeswahlgesetz(BWahlG) Deutschlands reformiert. Die Briefwahl wurde vereinfacht und das Sitzverteilungssystem wurde vom Hare-Niemeyer-Verfahren, das 20 Jahre lang bei der Sitzverteilung des Bundesparlaments seine Anwendung fand, zum Saint-Laguë/Schepers-Verfahren geändert. Doch das neue Verfahren kann das Problem des “negativen Stimmgewichts”, das beim alten System immer wieder kritisiert wurde, nicht lösen. BVerfG erklärte in seinem Urteil vom 3. 7. 2008, dass das negative Stimmgewicht verfassungswidrig sei, und der Gesetzgeber diese Verfassungswidrigkeit bis zum 30.7.2011 beseitigen müsse. Das Wahlprinzip von “allgemeine, direkte, freie, gleiche und geheime Wahl” für Bundesparlament verankert sich im Art. 38 GG. Die selbe Regelung für Land findet man im Art. 28 Abs. 1 S. 1 GG. Nähres für die Wahl wird Bundeswahlgesetz und Bundeswahlverordnung bestimmen. Insbesondere zeugt das gleiche Wahlprinzip im Hinsicht des gleichen Stimmwertes aller Wählern heikle Probleme. Denn die ungleiche Wahl ist auf Grund der ungleichen Grösse des Wahlkreises unvermeidbar. Aber noch schwere Wahlverzerrung entsteht durch Überhangmandat, negatives Stimmgewicht, Sperrklaus
  • 21.

    Disapproval of the State and Berne Convention - Focused on the controversies surrounding the protection of the works between North Korea and Japan(Tokyo District Court Dec.14,2007) -

    KIM MINBAE | 2010, 50() | pp.499~526 | number of Cited : 5
    Abstract
    North Korea joined the Berne Convention in January 2003. Japan has already joined the Berne Convention in 1975. However, Japan has not accepted North Korea as a nation under international law. And article 6 of the Copyright Law in Japan to protected works are as follows. Only those works falling under one of the following items shall receive protection under this Act:(i)works of Japanese nationals (Japanese nationals includes juridical persons established under the laws and regulations of Japan and those who have their principal offices in Japan; the same shall apply hereinafter); (ⅱ)works first published in this country, including those first published outside this country and thereafter published within this country within thirty days from the date from their first publication;(ⅲ)works in addition to those listed in the preceding two items, with respect to which Japan has the obligation to grant protection under an international treaty. Based on the above provisions, the North Korea claim that the works are available for this event. Article 6 by the copyright laws of Japan, Japan said that works are duty of care to protected works. North Korea argues that the works protection have universal value. North Korea argues that copyright protection set by the Berne Convention Article 3(1)(a),the conditions of concerning the rights and obligations for the international community. In other words, Article 3 of the Berne Convention claim to compliance, Criteria of Eligibility for Protection:(1)The protection of this Convention shall apply to: (a)authors who are nationals of one of the countries of the Union, for their works, whether published or not. Highlights of this case are as follows. First, Is the plaintiff eligible parties? Second, Is Japan protected by copyright law? In this paper, the problem of eligible parties (the plaintiffs) were examined. And Japan is obligated to protect the copyright or have not been reviewed for. In conclusion, the Tokyo District Court had dismissed to the plaintiff (North Korea) claims.