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2010, Vol.51, No.

  • 1.

    Eine Studie über den Bodenrichtwert in Deutschland

    Seung Pil Choi | 2010, 51() | pp.1~24 | number of Cited : 7
    Abstract
    Der Bodenrichtwert wurde von der Regierungsbehörde für einen allgemeinen Zweck der Entschädigung und der Steuerabnahme als Standardwert für Immobilien festgelegt. Wie bei uns, je nach der Veröffentlichung kann der Name sich ändern, grundsătzlich jedoch wurde der Begriff “Bodenrichtwert” für den Standardwert der Immobillien bekannt. Im Falle von Deutschland, ist die Rechtsgrundlage für die Ermittlung des Bodenrichtwertes § 14 GG und §192 - §199 BauGB. Des Weiteren befinden sich der ImmowertV, die Wertmittlungsrichtline, die GAVO und die Behördenregelungen in den Regionen, in denen der ImmowertV und die Wertermittlungsrichtline die Details der Wertermittlung bestimmen. Die Ermittlungsrichtlinien ermittelen Anwendungsgebiete, Kriterien, Berücksichtigungspunkte, Vergleichswertverfahren, Gewinnwertverfahren und Kostenverfahren des Grundstückswertes. Mit der Ermittlungsrichtlinie wurden die Details und Verfahren der Wertermittlung noch genauer geregelt. Die Ermittlung der Bodenrichtwerte erfolgt durch die Gutachterausschüsse, die Regionen haben jeweils die GAVO um die Gutachterausschüsse zu verordnen. Unter diesen Behörderegelungen haben jeweilige Gutachterausschüsse die regionalen oberen Gutachterausschüsse und darunter auch Ausschüsse, die zuständig für Stadt und Kreis sind. Diese Ausschüsse sind ein unabhängiges Kollegialgremium, und anders als bei uns, besteht das Gremium aus Ratsmitgliedern, Bänkern, Landwirten, Sachverständigen, Bauingenieuren, Architekten usw., die als Immobiliensachverständige tätig sind. Für das Verfahren des Bodenrichtwertes, sammeln die Ausschüsse Verkehrswerte im Zeitraum eines Bestimmungszeitpunktes bzw. an einem festen Zeitpunkt und legen diese zusammen. Um einzelne Transaktionspreise zu ermitteln, können die Ausschüsse den Preis der einzelnen Transaktionen durch spezifische Formeln bestimmen. Bei Bedarf werden Ortsbesichtigungen durch die Ausschüsse durchgeführt und diese Prozedur gleicht einer administrativen Untersuchung. Als Wertschätzungsmethode gibt es außer der Ansammlung der Basisdateien das Wertverfahren. Dazu gehören das Vergleichwertverfahren, Ertragswertverfahren und Sachwertverfahren. Im Allgemeinen ist das Vergleichwertverfahren als Wertschätzungsmethode beliebt, wenn es aber mit der Anwendung zum Entwicklungszustand bzw. Lage des Bodens nicht passt wird eine andere Methode wie das Gewinnswertverfahren, Kostenverfahren o.ä berücksichtigt. Bei der Wertschätzung wird der gesammelte Wert von dem Verfahren ausgelassen, wenn sie durch die subjektive Betrachtung bzw. änlichem gegen die Grundprinzipien verstösst. Zusätzlich zu dem Thema ˝Betrachtungselement der Wertschätzung˝ gehört die Nutzungsmethode der Immobilien, die Möglichkeit der Nutzungsfähigkeit und Betrachtung sämtlicher Zustände.
  • 2.

    The land values assessment and land valuation in the U.S.

    JEONG, HA MYOUNG | 2010, 51() | pp.25~42 | number of Cited : 2
    Abstract
    In the United States, every single state has some form of property tax on real estate. The property tax is an ad valorem tax that an owner is required to pay on the value of the property being taxed. The property tax on real estate is usually levied by local government, at the municipal or county level. The taxing authority requires and performs an appraisal of the monetary value of the property, and tax is assessed in proportion to that value. Determining the value of land can be difficult and expensive in practice. There is no universally applicable land valuation system in the U.S. Just Compensation is required to be paid by the Fifth Amendment to the U.S. Constitution and state constitutions when private property is taken for public use. The courts have been using fair market value as the measure of just compensation on the ground that fair market value is the amount that a willing seller would accept in a voluntary sales transaction and therefore it should also be payable in an involuntary one. The fair market value is the prevailing measure of just compensation and is defined by appraisers as the most probable price that would be paid by a willing buyer to a willing seller, both being fully informed as to the property's good and bad attributes. There are no direct relationship between the fair market values and the land values assessment in the U.S.
  • 3.

  • 4.

    Reconsideration of the Land Appraisal System Based on the Officially Announced

    Min, Tae-Wook | 2010, 51() | pp.67~88 | number of Cited : 18
    Abstract
    The current land appraisal system is based on the officially announced land price. Law prescribes that appraiser should appraise land by the officially announced price of standard land. The reason that law requires balance between appraisal price and the officially announced price of standard land is that the latter represents justified price. But on the contrary to law's intention, it is revealed that the officially announced price of standard land is far less from market price. The ratio of the officially announced price of standard land to market price is vary from 20% to 80% which is variable according to region that land is located and land sort. So when appraiser appraises land which its officially announced price of standard land is less from market price, he use 'other factor' in order to calculate fair value. Actually land is appraised by market value standard, but appraisal report is prepared by the officially announced price of standard land to satisfy law. In land appraisal the officially announced land price standard cause inefficiency without any desirable result. So it is advisable to abolish the standard. The officially announced land price system is needed to operate property taxes, and to achieve equal taxation it should be made up for the weak points in the system. As much as possible the officially announced land price should coincide with market value. At least the price is assessed to represent same ratio to market value in the whole country.
  • 5.

    The Appraisal Criteria for Cash Liquidation of Housing Redevelopment Project

    김종하 | 2010, 51() | pp.89~112 | number of Cited : 6
    Abstract
    Based on problem consciousness of cash liquidation system of housing redevelopment, legal character and appraisal criteria of cash liquidation was comprehensibly reviewed. Since housing redevelopment project belongs to public service developed by a redevelopment association, prior cash liquidation should be identified as the prior stage of adjudication, loss compensation agreement. Therefore, filing a dispute relating to practical cash liquidation as a form of civil lawsuit results in coexistence of administrative measure followed by its appeal procedure, administrative lawsuit, and civil lawsuit against one legal affair. Consequently, possibility to damage legal stability by court's arbitrary interpretation since the court will not be bound to the law concerned if loss compensation issue caused by public law is considered as civil lawsuit issue. In addition, the appraisal criteria for prior cash liquidation should be based on the approval date of management and disposition plan when the parties for prior cash liquidation and sale are determined. However, in order to prevent any legal confusion, it is a solution to delete the cash liquidation system but define the subjects as agreement or adjudication subjects; or to maintain the prior cash liquidation system but, if agreement on liquidation amount is established, considering it as an agreement under the law of compensation in land use, to effectuate legal effect such as ownership transfer.
  • 6.

    A Study on Project Propulsion of Cadastral Resurvey in Surveying, Hydrographic Survey and Cadastre

    Choi, In Ho | ShinPyeongWoo | 2010, 51() | pp.113~130 | number of Cited : 2
    Abstract
    At present, Cadastral of Korea was influenced by result of a land investigation work in 1908. As a consequence, It has come with the point at issue in cadastral administration. And, since The Korean War, Cadastral Record reached uppermost limit of cadastral management for injury and defacement of Cadastral Record. In order to solve this problem, A nation must reorganize existing cadastral system, and modernize cadastral administration. This is namely a Renovation of Cadastre. and Renovation of Cadastre, undoubtedly, will be enforced. If nation enforce Renovation of Cadastre, the rights of an individual will be restricted. Because Renovation of Cadastre exist Temperament of public interests and Nature of National Office Work, It can not run counter to Article 23 of the Constitution. Most of the disputes in relation to land boundary involve the problems around the boundary obtained from a cadastral survey such as the coverage of land ownership or determination of land boundary. Accordingly, this study aims to consider some amicable resolutions for such disputes. First, this study reviews the resolutions for boundary disputes related to the cadastral survey under the current cadastral system. Second, it suggests the Cadastral Renovation Project as an alternative to overcome some limitations in the resolutions discussed above. Third, it reviews subject matters and problems of the “Special Act on Land Survey”. Therefore three-dimensional land use is widespread to overcome limits of a narrow territory, the existing cadastral system cannot be unwarrantable in its systematic position.
  • 7.

    Legal Issues about the Regulations of Land Transaction

    KIM, MIN HO | 양은영 | 2010, 51() | pp.131~154 | number of Cited : 4
    Abstract
    Today, one of the most difficult and intricate social problems are a matter of the estate. Land is a finite resource in its nature which makes it complex to identify reasonable market based on the characteristics of its geographical locations' fixations and variations, and challenging to set the standard price. This generally leads to a lack of land supply, the inefficiency of land use, land speculation and the disorderly and prevalence conduct in trading system, a surge of land value, personalizing of development interest, and mis-balancing of land holdings, which phenomena indicates sever social conflict of class and individuals and hindering utilization of land. As a result, much of the system has been established to perform a various policy, but no solid system has been settled. 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. Therefore, the government actively intervened to limit land marketing of self-governing by private parties, but should directly or indirectly regulate personal property through land dealing regulation system. Thus, proactive care toward land owners whose ownership has been violated due to public regulation, is crucial for ownership guarantee and enhanced land competitiveness. However, many property transaction regulations lack legal system itself triggers in to a chain reaction of lack of linkages between the trade regulation means of property, which makes it harder to achieve the objective of land dealings regulation system, also puts a question on its effectiveness of operation due to procedural difficulties and logical contradictions. 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. Therefore, these land transactions and the related legal system must carry out its role of reviewing and point out practical problems that is necessary for the corrective measures, legal systems and administrative systems through the coordinacal problems transactions and the need for strengthening the effectiveness of regulatory institutions should be positioned.
  • 8.

    Legal issues and challenges of introducing Regulation Equity System

    PARK KYUN SUNG | 2010, 51() | pp.155~180 | number of Cited : 9
    Abstract
    When regulatory standards enacted by law are applied to special each case uniformly, regulatory standards can't fit the intent of regulation and moreover can bring the result against equity notwithstanding being generally valid in itself. To solve these problem, Regulation Equity System is a system to be able to take administrative measure for intent of regulatory legislation with equity, instead of applying regulatory standards. Regulation Equity System is necessary to ensure fairness of regulation on an issue of uniform regulation. Our government has regulated uniformly to prevent her own will and corruption in the course of regulation, and to ensure quick execution. Therefore, the introduction of Regulation Equity System is urgent to ensure fairness than in any other country The government legislated a “Bill of Damage Relief of Administrative Regulation and Regulation Equity” for the introduction of regulatory equity (it is called the “Regulation Equity Bill” in the rest) and noticed it in advance after discussion with departments in August 2010. The issue, Regulatory system is against the principles of separation of powers, the principles of the rule of law and equality, has been raised, but it accords with the current constitutional system, and contributes to the legal advancement. Regulation Equity Bill has devices of preventing the abuse of the regulatory system and a privilege from it, but we should further try to make complement system and aware of this fact to operate this, considering of risk of abuse on regulation equity. The issue of privilege and corruption might be raised, because decision of regulation equity benefit to the applicant. Therefore, decision of regulation equity should be admitted under strict requirement exceptionally, and it needs to strengthen the device for fair decision of regulatory equity. And should enhance professionalism of commission for citizen's trust, and should open its decision to the public to the maximum. In addition, we should design the way of setting established exceptions and discretion and division of roles in Regulation Equity System properly to ensure the validity of the regulations We should try to continue to make efforts as well as to enhance flexibility and fairness of regulation with softening the rigidity of regulation for strengthening regulation to ensure fairness. For these mentioned above, we should settle the Regulation Equity System, and be looking for ways to improve the system including reasonable process of discretion and introduction of screening and scoping system in environmental impact assessment to ensure flexibility and fairness of regulations For enhancing resilience and equity of regulation, its environment must be made at the same time. Particularly the expertise, public interest sense and ethics of civil servants, public confidence in the administration should be strengthened.
  • 9.

    Rechtspolitische Aufgabe zur Stärkung des Einspruchsverfahres als Rechtsschutzmittel

    Sung-Soo Kim | 2010, 51() | pp.181~204 | number of Cited : 10
    Abstract
    Heuzutage werden in Korea über 100 Arte von öffentlich-rechtlichen Abgaben erhoben. Ständig bemüht sich zwar die Koreasnische Regierung darum, daß die Belastung der Abgabepflichtigen gemindert werden soll. Dennoch verändert sich die Lage nicht im wesentlichen im Hinblick auf die Zahl und Belastungsniveau der öffentlich-rechtlichen Abgaben. Trotz der Feststellung, daß, die Erhebung der Abgaben zur Erfüllung öffentlicher Interessen als notwendig gehalten wird, ist die Bereitstellung des effektiven Rechtsschutzes gegen die rechtswidrige Erhebung der Abgaben von Bedeutung zum Zwecke der Verminderung der Abgabebelastung. Anders als Steuer erscheint den Abgabepflichtigen die Einlegung einer Klage oder eines Widerspruchs zwar rechtlich nicht unmöglich, aber steht sie immerhin in der Wirklichkeit in dem psychologischen Zwang, denn die Abgabepflichtigen müssen so oft mit den zuständigen Behörden als Abgabenerheber umgehen. In dieser Hinsicht wird dem Einspruchsverfahren im Bereich des Abgabenrechts als ein informelles Rechtsschutzmittel die praktische Bedeutung zugerechnet. So gesehen, spielt die rechtspolitische Aufgabe eine wichtige Rolle, die nach der rechtlichen Charakterisierung der jeweiligen Abgaben die Verfahren, zuständige Behörde, Einlegungsfrist und Prüfung des Einspruchs typisierend gesetzlich regelt. In erster Linie hängt das Einspruchsverfahren als ein effektives und vertrauenswürdiges Rechtschutzinstrumentarium davon ab, daß die Zusammensetzung und Tätigkeit der Einspruchsbehörde sachlich und neutral in Erscheinung tretten.
  • 10.

    A study on reinforced general use to road

    Guk-Soo Jeon | 2010, 51() | pp.205~226 | number of Cited : 9
    Abstract
    The road was used for general traffic. The public has the right that can pass a road freely. If he cannot pass of an obstacle on a road, he may demands for remove it or State compensation to the State or the local government. Any person who intends, in a road zone, to build, rebuild, modify or remove installations, articles or other facilities, or to occupy and use roads for other purposes, shall obtain permission from the relevant road management agency, he can use the road exclusive and monopolistic. On the other hand, a neighborhood who lives in the house which contacted with a road or administers a gas station, he depand on the road for life and economic activities, he has right to use the road than the public, it is the reinforced general use right. a person has suffered loss, such loss due to permanent closure or modification of roads and railroad works for a long term, he may claims for compensation for loss or compensation for damages to the State or local government. In cases where a person who has suffered loss, such loss due to third person who disturbs road, he may claims for remove it or compensation for damages.
  • 11.

    A Study on the Personal Information Infringement According to Using Administrative Information Network

    Jang Kyo-Sik | 조정은 | 2010, 51() | pp.227~250 | number of Cited : 3
    Abstract
    The sharing of information among government agencies through the national super-highway information network became available due to construction of e-government. The administrative information sharing means that government agencies are provided with managed informations by information network, disk, tape or other similar media and use those informations. It can be at the core of implementation and development of e-government. Due to the administrative information sharing, by the way, administrative services can be performed quickly and efficiently and the possibility of personal information violations have been increased at the same time. Especially, the violations can be more serious because it is hard to know how the personal information are used due to inner connection among government agencies. Therefore, we should consider the possibility of personal information violations and the current situation by sharing information through administrative information network and need to suggest the future direction of personal information system by analyzing the related legislation. Ultimately, the assessment of personal information impact should be imposed as prevention measure and the alternative of resident registration number should be arranged in order to prevent privacy breaches. And the existing concept of personal information should be specified more broadly and the clear evidence of legal punishment should be offered in case of violation of personal information. Besides,government regulation should be harmonized with self-regulation and the international cooperation about the movement of personal information should be taken concrete for the age of globalization.
  • 12.

    A study on a set of administrative function steps

    Jae-Ho Kim | 2010, 51() | pp.251~278 | number of Cited : 3
    Abstract
    Administrative functions have been required to respond the diversity and specialization of administrative relationships. The Administrative Law has recognized the need to establish the new system of administrative rules and functions which can be merged in the traditional system of a constitutional state. It will be realized by adopting administrative functions giving consideration in advance to guarantee the transparency of administrative decisions and the procedural rights of individuals, which will make the Administrative Law open, flexible and developed. This paper finds the limitation of the traditional administrative functions and examines the legal effects of government's commitment and interim administrative functions upon the premises that gradual and interim administrative functions are necessary. There are immanent differences on the definition, meanings, and requirements between the traditional administrative functions and the commitment or interim administrative functions, but as so do the traditional functions, the new administrative functions also seek for and contribute to fitting the purposes of administrative decisions and protecting individual rights. Government's commitment itself regulates administrative relationships and administrative bodies will be bound by the commitment, though it does not conclude administrative relationships when it was made. It is enough to meet the requirements of administrative functions and individuals whose legal rights are infringed by excluding the bounding power of the commitment should be protected by the procedure of loss compensation and administrative dispute. In 1995, the Supreme Court decided that determining priority prior to providing a fishery license is not an administrative decision, but a commitment. However, the determination of priority was considered an administrative decision in the administrative tribunal and was not dismissed. In result, the decisions from both the administrative tribunal and the court were inconsistent. The interim administrative function should be approved when the implementation is beneficial, even if related facts have not been determined and the administrative function is reserved. There are negative views to accept the new administrative functions because the dependence and expectation of administration are accomplished by the traditional functions. However, although the interim administrative function accompanies its principal administrative function and requires to complete imperfection, it should not be denied that certain administrative functions are implemented and beneficial effects are accomplished. Thus, the interim administrative function meets the requirements of a administrative function, and it is already carried out and able to be carried out.
  • 13.

    Legal System of Anti-Money Laundering in Korea

    Dongsoo Lee | 2010, 51() | pp.279~306 | number of Cited : 5
    Abstract
    oney laundering is the process by which funds obtained through criminal activities are turned into funds that appear to have been obtained from one or more legirimate sources. The purposes of preventing money laundering are; 1) to maintain international financial order, as well as to establish law; 2) to secure financial soundness and transparency; 3) to prevent damage to financial institutions and to gain credibility; 4) to prevent social and national corruption; and 5) to block the negative impact of such criminal conduct on the national economy. How to perform money laundering ① Through casinos and racetracks ② Transactions in trade ③ Alternative remittance systems ④ Bank account, trust funds, bank loan, private banking, and bearer bond, etc ⑤ Transactions on the stock exchange (brokerage account, investment trust)⑥ Insurance ⑦ Financial derivatives ⑧ Electronic banking, electronic money The effort to prevent money laundering can violate the privacy of individual financial transactions. Privacy of financial transactions is a right secured by the Constitution, which protects privacy and private property. Therefore, the effort to prevent money laundering should strike a balance between guaranteeing constitutional fundamental right and obtaining transparency of financial transactions and soundness of national economy.
  • 14.

    ritical Review on the Escape Clause of Online Service Provider of Copyright Law

    Hyunkyung KIM | 2010, 51() | pp.307~324 | number of Cited : 6
    Abstract
    On May, 27, 2003, Amendment to Copyright Law was approved that escape clause of Online Service Provider has been newly adopted. Amendment to copyright law submitted by the government and proposed by both Nam, Gung-Suk, and Shin Ki-Nam, the members of national assembly, was referred to the first committee of ministry of culture and tourism in the 228th National Assembly. They were sent to the Bill Examination Subcommittee after being reviewed by the panel and gone over the substitute debating. These three bills had not been submitted to the plenary session. Instead, alternatives were agreed to be suggested by the Bill Examination Subcommittee. These alternatives were sanctioned by the committee of ministry of culture and tourism in the 236th National Assembly on February, 24, 2003. The committee of culture and tourism explained the reasons for proposing the alternatives in the bill whose measures are designed to ensure the establishing basic institutional grounds for online service provider to run business activity in a safer environment. The first reason is that there have been growing needs to protect the investment efforts on making Databases and Digital Contents whose demand has been increased with the advancement of Knowledge and Information society. Secondly it is necessary to reinforce the protection of copyright in the digital net work environment in many ways like tightening the control of technological protection measure which is to secure the exclusive right of author from illegal reproduction and preventing the infringement of accessing to right management information of the works of author and setting up the legal system for online service provider possible to be exempted from obligation if OSP fulfills the required conditions when author's copyright is infringed through internet by the third person. These purposes and concerns appear in and inspire Article 77 of copyright law effective from July, 1, 2003. Article 77 has been enacted to govern to build better circumstance for OSP to run business more safely in today's information oriented society by adopting the escape Clause, by which the responsibility can be lessoned and exempted if Online Service Provider stops to copy and transmit after finding out that he or she is infringing the rights of authors by the third person while providing the services of reproducing and transmitting the works, performance, phonogram, broadcasting and data base. In meanwhile, there lies a problem in accepting thoughtlessly this legislation methods without researching on whether escape clause properly contribute to playing the role of fostering better circumstances in which OSP and Information&Telecommunication Service Provider can maintain their business in a more stable situation by strengthening the protection of copyright law and blocking the circulation of illegal informations. In particular, The issue of obligation ex delicto can not be simply solved in an uniformed manner by written laws and regulations. Ultimately the extent of liability and possibilities of exemption should be dealt and reached on through the trial. Briefly, the liability of OSP and ISP can not be exempted right away just by newly adopting an article, escape clause. On the basis of these concerns shown as above, research was scrutinized on this these about written documents dealing with the pros and cons toward adopting the escape clause for OSP and the streams of related cases of other countries and the current escape clause provided in copyright law. And then critical reviews and propositions of effectiveness of escape clause of OSP are made with analysing the subsequential trends of cases after the newly approving escape clause on this these.
  • 15.

    A study on the improvement of police committee

    이영우 | 2010, 51() | pp.325~342 | number of Cited : 8
    Abstract
    Our society, as it comes into modern society, is rapidly changing by wave of urbanization and globalization. Concept of police has been also socially and historically changed accordingly by time and society while it continues to be changed. Therefore, police organizations need to be changed corresponding to social changes. Changes in police can be viewed by police policies and police organizations. Police policies are required to be changed into local autonomous police and police organizations need to correspond to democratic society and shouldn't damage democracy and political neutrality which is a basic concept of police law. Korean police had established police committee and public peace administrative committee in order to secure political neutrality. Therefore, the police committee, beyond its simple consultation and legislative functions, needs to suggest directions corresponding to basic concepts for police laws and requirements of people through improved systems for police committee which is custom tailored for our country while it achieves its original purposes and basic concept for current police law. Those are purposes of this paper. As the police committee is regarded as a council system and consultation․legislative organization according to current police law. the committee's members have their responsibilities for decisions from the police committee. This consultation․legislative organization has authorities only for consulting and making decisions upon articles imposed by police chief and laws while it has no right for presenting its jobs outward. Although the committee might be a nominal council consultation․legislative organization, it has a simple advisory organization since it has no articles for binding power against consultation․legislative organization. Since the police committee has no foundational articles which gives legal binding power for the consulted and voted articles which have been resolved by the committee and administrative security ministry, if necessary, has a right for requesting reconsideration, its simple consultation and legislative right might degenerated into a superficial legislative power. Those are problems. The police committee needs to manage police agency with its administrative position beyond current nominal consultation and legislative organization in order to achieve its administrative tasks effectively and to secure political neutrality. The police committee, corresponding to purposes for its establishment, needs to be systematically institutionalized so that it can achieve responsible administration and service for people with its role for consultative administrative government office and legal roles. And it's impossible for the committee to secure political neutrality and democratic aspects which are purposes for its establishment, and to carry out its diversionary against police administrative jobs if the committee belongs to current administrative security division. The police committee, beyond its simple consultation and legislative functions, needs to meet basic concepts of police laws and requirements of people by improving its custom-tailored system for our country while it has rights to check and manage police offices in order to achieve its original purposes and basic concepts of current police laws by legal and systems which give actual management and supervisory right against police administrative organizations.
  • 16.

    Constitutional study of the protection of an unborn child's life

    Pyo, Myoung-Hwan | 2010, 51() | pp.343~364 | number of Cited : 9
    Abstract
    This paper described laying stress on constitutional several problems about the protection of an unborn child's life protection. The right to life as constitutional right is acknowledging as the right of all humans. Furthermore, the basic right to life of an unborn chid, who is in development stage of formation of human, is admitted. Therefore, the state takes duty to protect the right to life of an unborn chid according to sentence 2 of Art. 10 of Constitutional law. In concerning of the protection of an unborn child, who is the subject of the right to life, Criminal law keeps a regulation that prohibits abortion in principle. Regulation of crime about abortion has characters which are as benefit and protection of an unborn child's life and legislative protection law for an unborn child in pregnant's secondary self-determination. So, regulation of illegal abortion on criminal is judged from not viewpoint of restriction of nature right but the legislative protection law of nature right. In contrast, regulation of restricted permission of induced abortion on Art. 14 of Mother and Child Health Law has meanings which are as a pregnant's protective regulation as well as protection of unborn child's life. However, the reason of regulation of permission of induced abortion on Art . 14 of Mother and Child Health Law involves character restricting of right to an unborn child's life more strongly. On that score, examination of constitutional justice on Art. 14 of Mother and Child Health Law is applied the anti-overrestriction principle and the principle of definiteness as a screening of restrictive act of nature rights. In this paper, I have drawn constitutional justice with showing constitutional possibility of discriminative treatment about life's value on stage of forming human and theory of protection of required nature rights on regulation of criminal abortion on Criminal law as a legislative protection law enacting graded treatment of life. But, about regulation of restricted permission of induced abortion on Art. 14 of Mother and Child Health Law, this paper showed that problem and presented direction of new legislation, applying the anti-overrestriction principle and the principle of definiteness. Also, this paper suggested regulating another reason of deadline showing constitutional problems about protection of an unborn child's life related to Art. 15 of Mother and Child Health Law which enacts the reason of deadline.
  • 17.

    A study on the safety control of electric facilities in the view of Public law

    김종천 | 2010, 51() | pp.365~392 | number of Cited : 0
    Abstract
    Electricity is very important green energy source in everyday life and industries. The importance of electricity cannot be overemphasized. And we cannot ignore the risks of electricity such as a short circuit and an electric shock. In this thesis, the theory of law is studied to ensure safety from the fire, the electric shock and the accident of electric equipment caused by electricity, and safety control rules are analyzed based on the studied theory of law. Electric Utility Act specifies the business permission, the authorization, the report, the inspection before use, the appointment and education of electricity safety manager, the regular inspection, the safety checkup and the special safety inspection system. Electrical Construction Business Act specifies the electrical construction registration system, the electrical construction separate ordering provisions, the subcontract prohibition provisions, the electrical construction sign posting provisions and the comprehensive management provisions of information about construction work. Electric Technology Management Act specifies the provisions of designs and supervision about the electric facilities. Electric Appliances Safety Control Act specifies the safety certification and mark system as a preliminary control for the electric appliances safety management, the report and mark system of autonomy safety confirmation object electricity appliances, the confirmation and mark system of supplier suitability about electric appliances, and does the regular inspection, internal inspection and safety inspection as ex post facto safety control system. But there are some problems to produce actual results for the safety control, the reason why the sentence is light in case of violation of regular inspection and regular inspection time in Electric Utility Act. Also we have no regulation for trading electricity safety experts to prevent risks and accidents from electric facilities. It is invaluable to realize the safety from risks and dangers of electric facilities. So, the legislator related electricity should ensure safety of lives and bodies of people through freedom and safety and be under obligation to reform a law to develop electric industries.
  • 18.

    소청심사제도의 제문제

    Kim,Young-Sam | Jai-Uhng Kyoung | 2010, 51() | pp.393~418 | number of Cited : 7
    Abstract
    공무원으로서 징계처분이나 그 의사에 반한 불리한 처분 등을 받고 불복하는 자의 재심청구 또는 불이행이라는 부작위에 대한 행정처분을 구하는 청구를 받아 심사․결정하는 특수한 행정심판제도의 하나로서 소청심사제도는 간접적으로는 행정의 자기통제 또는 자기감독의 효과를 도모하고, 직접적으로는 사법보완적 기능을 통하여 공무원에 대한 임용권자의 부당한 인사상의 처분을 취소 또는 변경하여 줌으로써 공무원의 권익을 보다 강하게 보장하려는 데에 있다. 이 논문은 소청심사제도의 문제점과 그에 대한 개선책 검토에 그 주된 목적이 있다. 먼저 공무원의 개념과 공무원의 신분보장제도성립에 이론적인 기초를 제공하고 있는 현대 관료제도로서의 기본적인 면 및 공무원의 신분보장제도와 권익보장제도 나아가 소청심사 제도를 고찰한다. 그 가운데 국가권익위원회의 권고안을 중심으로 공무원의 징계기준에 제시된 징계양정보다 낮은 수위의 처벌이 만연하고 있고, 소청심사제도를 통해서도 상당부분 징계감경 처분이 되고 있어 “솜방망이 처벌”이라는 비판이 각계로부터 제기되고 있으며, 이에 부패행위에 대한 징계․소청심사 제도의 공정성 확보를 통해 공무원 부패행위 처벌의 실효성을 획기적으로 향상시킬 수 있도록 제도개선점을 검토한다. 소청심사제도의 개선 추진과제로서, 첫째 징계양정기준 과소적용 방지 체계 운영으로서 부패행위에 대한 징계양정기준을 과소하게 적용할 경우 적절한 재심의 요구를 인정할 필요가 있다. 둘째, 부패행위에 대한 징계처분의 적정성을 도모할 방안이 요구되며, 형사고발이 제대로 이행되고 있는지에 대한 실태를 정기적으로 점검하는 방안을 제도화하는 문제도 검토할 필요가 있다. 셋째, 소청심사의 운영을 공정하게 하고, 그 실효성을 확보할 수 있는 수단으로서의 금품․향응수수 공금횡령․유용 등 부패행위에 대하여는 표창공적 등 정상참작, 깊은 반성 등 불명확한 사유에 의한 징계감경을 제한하는 방안도 강구되어야 할 것이다. 넷째, 소청심사위원 명단, 소청심사 결과․사례 등을 공개하여 투명성을 제고하여야 할 것이다. 다섯째, 시․도 소청심사위원회 구성의 공정성을 강화하기 위하여 소청심사위원회 내부 공무원 위원 최소화 및 소청심사위원회 외부민간위원 위촉시 공신력 있는 외부단체 추천을 통한 선발도 검토할 필요가 있다. 이 논문은 현행 소청심사제도의 문제점에 대한 이러한 개선방안을 통한 소청심사제도를 개선하여 공무원의 신분보장과 그 권익보호 나아가 행정의 공정성과 투명성을 높여 소청심사제도의 실효성을 확립에 기여하고자 한다.
  • 19.

    A Comparative Constitutional Analysis on Local Decentralization

    Moon-Hyun Koh | 2010, 51() | pp.419~446 | number of Cited : 7
    Abstract
    The notion of local self-government has been historically and empirically formulated according to situation of each country. Therefore, each country provides constitutional article for local self-government in a different way. This essay aims to find a way to constitutional revision by comparative constitutional analysis of 11 major countries on local decentralization. To this aim, this essay covers meaning of local decentralization in chapter 2, and then analyzes constitutional article on local decentralization of 11 major countries in chapter 3. As a result, Korea is the very last country in that Korea provides only two articles for local self-government in Korean constitution. Into the bargain, the Korean constitutional text of the local self-government-related articles is too simple and abstract. Accordingly, they provide few directions for lawmaker. And the local self-government-related articles delegate to law too much. As a result, the legislature has too much discretion. Some implications for constitutional revision in order to strengthen local self-government and decentralization are presented in chapter 4 of this essay. First, it is necessary to make it clear that ideology of local decentralization and balanced national development shall be provided in the Preamble to the Constitution. Second, it is also necessary to make it clear that local decentralization as ideology of nation shall be provided in the General Article to the Constitution. Third, it is also necessary to make it clear that the principle of subsidiarity and one's own responsibility shall be provided in the power of local self-government. Fourth, kinds of local self-government shall be fixed in the text of constitution in order to avoid over-delegation to law. And Jeju Special Self-Governing Province as exceptional case shall be fixed in the text of constitution. Fifth, basic composition and operation of local self-government shall be determined by local ordinance, as far as it is not against law of the state. Sixth, the high power of financial autonomy shall be constitutionally guaranteed for the local self-government. Seventh, the power of filing a complaint with the court shall be constitutionally guaranteed for the local self-government. Eighth, the representativeness of local residents shall be secured as the source of legitimacy for the power of local self-government. Ninth, the guaranteeing of participation of residents shall be prescribed in the constitution. In short, constitutional guarantee for the local self-government is not sufficient comparing to that of advanced countries in local self-government such as French, Germany and Spain. It is high time that we should prepare for Constitutional revision to strengthen local self-government and decentralization.
  • 20.

    Study on political party's participation in the Local elections

    김봉채 | 2010, 51() | pp.447~484 | number of Cited : 11
    Abstract
    The term “political party” means a voluntary organization of the nation that aims to participate in political decision-making of the nation by promoting responsible political assertions or policies for the interests of the nation, and recommending or supporting candidates for elective public office. Since introduction of self-government, The problem that a political party has taked part in the local election has discussed. Because the essence of local autonomy is decentralization and the exclusion of political parties but political parties are essentially political integration. In other words, these two systems are the organizing principle of our Constitution but in essence, to pursue conflicting values. Therefore, any one of them is emphasized, the other is damaged. However, the two institutions can not give any organizing principle of liberal democracy, so the two systems will be compromised in harmony. Local electoral participation of political parties should be within the scope that the nature of local government should not be damaged. I think that Political parties participate in local elections by itself should not to undermine local autonomy, but because local people have no experience and awareness for local autonomy, the participation of parties are restricted to a certain range. Our constitution gives parliament legislative discretion for party and Elections for Public Offices. “Act on Elections for Public Offices” allow a local council candidate nominated by the party, and a local council candidate to define his position. Political Parties Act make political party to organize in Seoul and five cities or provinces, and these requirements options have failed, or if political party the last four years, in Election of National Assembly Members by the expiration of the terms of office, or Election of local government head or Local Council Members by expiration of the terms of office shall not participate, has to cancel the registration of political parties. Given these points, the party's participation in local elections should be limited to election of Special Metropolitan City and Metropolitan Cities and mayor of the province and province Council Members.
  • 21.

    The Protection of personal Information and Principle of the Proportion in the Police Intelligence Activities

    Cho Man Hyeong | 2010, 51() | pp.485~506 | number of Cited : 9
    Abstract
    It is necessary that the police activities, which is for the public interest, should be controlled because it is closely related to privacy. The development of information process technology has brought about the major change in collecting and processing the personal information, but it has also caused the problem of the privacy invasion. This matter takes place, for the protection of personal information and the abuse of the police authority conflict with the contradictory request which is liberty and the right guarantee of citizen and the public wellbeing and the maintenance of order. The presented solutions for the problem is a limit of the police intelligence activities. It is the principle of the proportion that is often quoted as a control cause. This Principle of the Proportion has an important meaning in judging whether to keep the personal information which is collected and stored by police. First of all, police's collecting and processing the information related to the individual must be appropriate for the attainment of the aim. Second, the actions of all national agencies for that activities is minimal for achieving their goals. In their activities, there must be a resonable proportionate relationship between the pursued public interest and the harm of all connected. Therefore, applying to the principle of suitability, the police should distinguish menas from that which is allowed by the law and then among the means, they choose one that gives the least burden to the other party or a related person. After that, applying to the principle of the justification, they should determine the chance taken steps, comparing the harm and the public interest. In order to secure the individual information, the exercise of the police authority is suitable for the aim that police achieve the maintenance of the public wellbeing and order. Police choose the least means needed in attaining the goal and if it is administered under the principle that the individual right violation and reasonable balance, both the guarantee of individual right and the maintenance of the public wellbeing and order are achieved.
  • 22.

    Improvement of Legal Clinic Education in Republic of Korea

    Kil Joon Kyu | 2010, 51() | pp.507~530 | number of Cited : 7
    Abstract
    In the Republic of Korea universities have traditionally been responsible for legal education and court for legal practice in lawyering. In order to expand the number of lawyers who passed the limited Bar-exam and to improve the Legal Education the legal education system has changed similarly with American Legal Education under the Law School. Therefore new Korean Law School must educate both legal education and legal practice. It are the problems in korean university how to teach the legal practice and what contents will be taught. To evaluate and criticise this problem american legal education and legal practice including skills for lawyering as a model should be researched and reviewed before introduction. It is origin that the lawyers practice in the United States had been trained in a private law office as clerkship, or had educated themselves by a course of reading. By 1900 it was quite clear that the law school would come to dominate legal education. American legal education was been enhanced by the Langdell' methode. In the 1960s the american law schools have introduced legal clinic program for professional skills. Most lawyering skills course often take form of “simulation”, “Internship” with live client, or Externship. ABA standard now require that law school offer courses providing live-client or other real-life practice experiences und supervision of law school faculty. After the description of clinical legal education in American law schools the problem of transferability of the concept to the Korean Legal Educations System is then analysed by insight of continental law. Finally improvement of legal practice education in Korea is presented.
  • 23.

    Soziale Grundrechte in der Charta der Grundrecht der Europäischen Union

    은숭표 | 2010, 51() | pp.531~556 | number of Cited : 4
    Abstract
    Zwischenergebnis der Untersuchung der Grundlagen gemeinschaftsrechtlicher sozialer Rechte war, dass das geltende und das künftige Primärrecht grundlegende Fragen offen lassen, weil auch beim Inkrafttreten von GR-Charta und Vertrag von Lissabon keine Konzentration auf eine einzige Quelle sozialer Rechte erfolgt. Im geltenden Recht zur Stellung des sozialen Rechts in der gemeinschaftsrechtlichen Rechtsordnung bleiben ebenfalls wesentliche Aspekte offen. Es fehlt das normative Gerüst, welches diesen Rechten jeweils einen bestimmten Platz mit definiertem Wirkungspotential zuweist. Entscheidende Fragen offenzulassen, bedeutet zwangsläufig, dass sie vom EuGH beantwortet werden. Die Auswertung der bisherigen Rechtsprechung hinterlässt ein widersprüchliches Bild, welches auf der einen Seite durch den Exzess in der Rechtssache Mangold gekennzeichnet ist, das auf der anderen Seite aber in Viking das soziale Recht im Verhältnis zur Grundfreiheit sang- und klanglos untergehen lässt. Von normativen Grundlagen hat sich der EuGH weitgehend gelöst. Eine allgemeine, übergreifende Dogmatik sozialer Rechte kann seiner Rechtsprechung nicht im Ansatz entnommen werden. Die Untersuchung der GR-Charta und des Vertrags von Lissabon schließlich ergibt, dass die Mitgliedstaaten in erster Linie durch die Sorge vor Entscheidungen wie der in Mangold geleitet waren und kaum etwas unversucht lassen, sozialen Rechten von vornherein die Wirkung zu nehmen. Hierbei scheint unberücksichtigt zu bleiben, dass man damit gleichzeitig das einzige vor dem Hintergrund des geltenden Europarechts denkbare Instrument verhindert, das den Grundfreiheiten ein spürbares Gegengewicht setzen könnte. Die Konsequenzen daraus wird man je nach wirtschafts-und sozialpolitischem Standpunkt unterschiedlich beurteilen. Alles andere als ein Ruhmesblatt aber ist es, dass die Stärke der Grundfreiheit gegenüber dem sozialen Recht nicht Ergebnis einer rechtspolitischen Auseinandersetzung um die materielle Gewährleistung gemeinschaftsrechtlicher sozialer Rechte ist. Eine solche kann nicht sinnvoll geführt werden, wenn diese Rechte darauf reduziert werden, ob und in welchem Maße sie Kompetenzen und Einflußnahmemöglichkeiten der Mitgliedstaaten im gemeinschaftsrechtlichen Gesetzgebungsverfahren beschneiden können.
  • 24.

    A Study on Public Legal Personality of the Law in Realtor services and Report in real estate transactions - Focusing on the legal nature of Registration system and Need reporting -

    Jeong Hoe Gun | 2010, 51() | pp.557~574 | number of Cited : 7
    Abstract
    The real estate law should be considered as a neutral law since it has the characteristic of both public and private law. Some have contended that it is a form of social law. However it is not a ` rational argument because common law is the law to protect the weak. Rather, real estate law has many propensities of the private law; such as the purpose in legislation and provision to achieve the purpose. Registration and report system are the good examples to show the efforts. Registration system is the system to induce specialization of real estate business to develop competitive power in open market. The system makes certain of that whoever wants to open an agency, must register license and the seal as an agent. Report system is for fair trade in real estate market through regulating any deceiving conduct in business. For example, the system guides any real estate trade to be reported mandatorily in order to prevent any speculation or tax evasion. Ultimately, the purpose of the real estate law is to contribute to the national economy through promoting fair trade in the market by educating realtors in business ethic. Take together, the real estate law should be understood as a national public law because it is the law to stimulate the fair market trade in real estate
  • 25.

    Issues and Recommendation on the Special Act for the Land-lease Housing for Installment Sale Supply Promotion

    배문호 | 2010, 51() | pp.575~594 | number of Cited : 0
    Abstract
    It is meaningful to provide urban households without home ownership with Land-lease Housing Program for the stabilization of settlement. It is meaningful because Land-lease Housing Program provides affordable housing, redeems unearned income borne by developing land and pioneers a new way of housing supply. This study aims to examine issues of fact in the Special Act for the Land-lease Housing for Installment Sale Supply Promotion. Thus this study is to propose alternatives for the insufficiencies found in the Special Act. The Special Act is made when it is necessary to materialize what has been stated in the Constitution, Article 35 Clause 3. The Special Act includes many items that promote supply of Land-lease housing, such as the fact that Land-lease housing program holds superficies during the period of rent, the fact that Government's Comprehensive Housing Supply Plan encompasses Land-lease housing program resulting in systematic implementation, the fact that all of the Land-lease housing program be implemented by public sector, the fact that appropriateness of housing prices and the rent for land are secured, the fact that the grounds for pension and fund appropriation are established, the fact that land for housing has priority over other land uses, the fact that there are special exceptions to the application of FAR(floor area ratio), etc. Still there are many remaining issues such as limited conditions to location of land due to the immaturity of public land lease system based on land banking, limitation of funding, development by private sector is not likely, complications in the registered holder of right in the land register which is not favorable to the land owners, dubious marketability due to lack of popular understanding of Land-lease housing program, etc. Nevertheless, the most essential effort of them all is the strong and active will of policy makers and the administration to implement the Land-lease housing program.