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2012, Vol.56, No.

  • 1.

    Kritische Bemerkung zum Gesetesentwurf fuer Landesentwicklung und fuer deren Hilfsleistung

    Hae-Ryoung Kim | 2012, 56() | pp.1~15 | number of Cited : 3
    Bei dieser Abhandlung handelt es sich um Bemerkung zum neuen Gesetzesentwurf fuer Sondergebietsentwiklung und deren Unterstuetzung. Dieser Gesetzentwurf wurde im September 2011 von der Kabinetsitzung verabschiedet. Dieser Gesetzentwurf bezwekt sich die drei Sonergesetze(Gesetz fuer Unterstutzung der lokalen Kleinen Unternehmer, Gesetz fuer Investitionsfoerdeung in neuen Entwicklungsgebieten, Gesetz fuer Entwickung der Kuesten Regien) zu bereinigen bzw. vereinfacken. Dieser Gesetzesentwuf beinhaltet, dass in der besonderen entwickungsbeduerftigen Gebiete der Bauminister bzw. Gavanuer bei der Provinzlgovernment Sonderentwicklungsvorhaben projektmaessig ein Sonderentwicklungsplan durchfuehren kann. Mit diesem Gesetzesentwurf ist es beabsichtigt, eine hamonisierte Planung fuer ganzen Land beschaedigt wird. Das heisst, dass dasr in diesem Gesetesentwurf geregelten sonder Planungssystem mit der allgemeinen Landesplanungssystem nicht gut hamoniseren kann. Unter diesem Grund wird vorgeschlagen, dass einige Sonderregelungen zur Deckung fuer Sonderentwickungsbedarf im Gesetz fuer Landesentwickung und Flaechungnutzung einzufuehren sind. Der Gesetzentwurf hat einige Vorschriften fuer Foerderung der Investition von Unternehmer an der Landesentwickungsvorhaben, die sehr grosszuegige Unterstuetzung von Verwaltung an der investisierten Unternehmern beinhaltet sind. Angesichts des Gefahrs von ungerechter Handlung zwischen oeffentlichen Haende und privaten Unternehmer ist es beduerftig, einige Vorschriften ueber transparente Verfahren fuer Wahl der privaten Unternehmer.
  • 2.

    A Comparative Law Study on Improvements to the Korean Legal System for the Promotion of Development of Deep Underground Geothermal Energy

    Choi, Inho | 2012, 56() | pp.17~47 | number of Cited : 2
    The promotion of renewable energy technologies is one of the essential solutions to global climate change, prevalent environmental pollution problems, energy insecurity, and the maintenance of long-term national competitiveness. Among other renewable energy resources, deep underground geothermal energy resources have many strengths, which include unlimited resource potential, high reliability in supply, and environmental friendliness relative to other renewable resources. However, deep underground geothermal energy resource developers face formidable regulatory barriers due to the absence of specific permitting procedures under the current Korean legal system, which are specifically designed to consider geothermal energy characteristics. Based on the examination of Australian, American, and German cases, this Article proposes that geothermal energy resources be classified as mineral resources with possible national ownership under the Mining Law. It also adds that special provisions relating to geothermal energy projects must be inserted into the revised Mining Law in order to reflect the characteristics of geothermal energy exploration projects. On the other hand, the Article argues that RD&D support for the facilitation of drilling and exploration technologies be strengthened, together with an urgent need for the reconsideration of recent national policy that chooses to switch to renewable portfolio standards (RPS) from feed-in tariffs (FIT).
  • 3.

    A Study on maritime delimitation in the Seamangum Project Region

    Kim,Hee-Gon | 2012, 56() | pp.49~93 | number of Cited : 8
    There is a korean proverb saying that 10 years of time change even mountains and rivers. It has passed 20years since the Seamangum Project first began in 1991, but now it is still in prograss. The Seamangum Project had been hesitated because of opposition of environmental group and others and was stopped for a whiie by decision of the Seoul administrative court of law on 15 July 2003. After that, all of the legal barriers of the Seamangum Project was removed by judgement of the Supreme Court of Seoul on 16 March 2006. And finally, by completing the connection construction of Seamangum breakwater on 21 April in 2006, it is now scheduled for internal development works. In the meantime, a new problem raised; that is a maritime delimitation problem in the Seamangum Project Region among related local governments like Gunsan-si, Gimje-si, and Buan-gun. The argument of maritime delimitation in the Seamangum Project Region are first, a possibility of inclusion of the ocean into administrative jurisdiction second, a legal character and limitation of the maritime border line in national topographical map, third, reasonable standard(method) of maritime delimitation. Among them, second and third points are more important and essential. This study is aimed to research a reasonable standard(method) of maritime delimitation esp. in the Seamangum Project Region and is organized as follows. Ⅰ. Introduction Ⅱ.Discussion situation about maritime delimitation in the Seamangum Project Region. Ⅲ. Main Problems about maritime delimitation in the Seamangum Project Region. Ⅳ. Reasonable standard(method) about maritime delimitation Ⅴ. Over maritime delimitation to future development Ⅵ. Conclusion Lastly, I want emphasize a few noticeable points for preparation of standard(method) of maritime delimitation esp. in the Seamangum Project Region as follows. First, recognition of limitation of the maritime border line in national topographical map and effort for getting rid of it. Second, consideration of reasonable standard(method) of maritime delimitation in international law, for example equitable principles. etc. Third, consideration of view point of future common development etc.
  • 4.

    A Study on the Legal Characteristics and Transferability of Inland Fisheries Permit

    Lee,Heon-Seok | 2012, 56() | pp.95~113 | number of Cited : 0
    Fisheries resources living in inland have continuously reduced due to over-fishing and development thoughtless for the environment. Inland fisheries that target the fisheries resources have been also confronted by several problems such as insufficiency of inland fisheries management systems, inconsistent fisheries management system, inferior infrastructure of inland fisheries, and decreasing fishermen's real income. Even though there are Fisheries Act, as a general law and Inland Fisheries Act, as a special law, we are little concern about Inland Fisheries Act, because people think Inland Fisheries as leisure. Consequently, Local governments which are located beside the lake, decide same kind of Inland Fisheries Permit differently, so the people are confused. The reason of fisheries administration get in trouble is due to problems at the inadequacy of our fisheries law system. Current fishery of Korea is classified by dividing largely into 3 kinds of report fisher, permit fisher and licence fishery can not be established without these 3 kinds. Fishery mentioned here means capturing and rearing of inland water resources for business with purpose of livelihood and profit, and it excludes capturing and rearing of inland water resources by method of fishing with hobby or experience. Regarding permit fishery, receives permit from administrative office regarding fishing vessel and it is fishery to capture inland water resources with method designated method by the administrative office at the time of permit by wandering about wide sea. And regarding license fishery, administrative office divides near inland water from the land and let person who received licence capture inland water resources designated by the local government. So, We need to make development of inland fisheries policy including public people, and the improvement of inland fisheries permit system and law reflecting various users of inland fisheries.
  • 5.

    A Legal Review on the Readjustment of Insignificant Land Parcels

    Hyun-Joon Lee | 2012, 56() | pp.115~132 | number of Cited : 4
    The purpose of this study was to suggest the improving means for establishment of efficient land management system by examining the concrete methodology concerning readjustment of insignificant land parcels. In order to achieve this goal, I firstly investigated several existing papers and statutes, related to registration of land. And then, I reviewed the main issues such as the registration mechanism of land, the root cause of them, and the derived problems from them. After studying, I recognized that insignificant land parcels are caused by neglect of duty when officials deal with the tasks of cadastral readjustment. And also it inflicts heavy losses on the both public sector and private sector of land management. Therefore, this study urged the concrete solutions on the reviewed problems by suggesting the legal basis and reasonable methodology concerning readjustment of insignificant land parcels. In addition, this study suggested the technical method for the improvement of present land registration system.
  • 6.

    Research on legislation regarding the management and development of public properties on commission

    Jang Kyo-Sik | 2012, 56() | pp.133~152 | number of Cited : 0
    Local governments have maintained passive management strategies regarding public properties and therefore have failed fully utilize them. Local governments seek pro-active management such as the development and utilization of public properties, to depart from passive strategies such as maintenance and preservation in order to have financial independence. Utilization measures through management and development of public properties on commission is considered based on the recently-revised legislation. First, the legal principles and effect of management of public properties on commission can be identified as follows. The management of public properties on commission consigns administrative affairs such as the management and treatment of public common properties to agencies such as the Korea Asset Management Corporation, giving them rights and responsibilities for the affairs. It saves management expenses through the active management of public properties and increases non-tax revenues. It also reduces the administrative burdens for local governments and efficiently manages public properties’ management by utilizing the expertise of private agencies. Provision of information regarding land sales and lease could increase the satisfaction of local residents. Second, the legal principles and effect of the development of public properties on commission can be identified as follows. With the development of public properties on commission, agencies develop facilities with the consigned properties and their own private financing and make the rights of ownership of the development that of the local government. Agencies are consigned with the management and operation of the development in a certain period and give revenues from the lease and distribution of the development to local governments. It minimizes local governments’ financial burdens and makes the timely development of facilities required possible. In addition, the government-led development allows for the optimum utilization of public properties which satisfies both publicity and profitability. It also contributes to an increase in the price of public properties, the financial income of local governments and the revitalization of local economies. Third, post evaluation of the management and development of public properties in the commission is important. Thorough post evaluation should be conducted along with the development of evaluation standards and system. The review of actual cases is also significant. The implication from the actual cases after the introduction of the institutions regarding the management and development of commission following the revision of the law on public properties and item management could be a touchstone for local governments in managing and developing public properties on commission.
  • 7.

    Study on Roadway Maintenance Laws

    Woo-Suk Chae | 2012, 56() | pp.153~174 | number of Cited : 2
    Roadways are typically regarded as one of the representative public property and the laws on public property within the traditional administrative law has been the basis of its legal principals. The laws on public property, especially in Korean administrative law jurisprudence, has been studied as one of the itemized discussions within the administrative laws due to the influence of German and Japanese laws and the studies are focused to public property's establishment, extinguishment, limitation, management and it's use. However the legal characteristic of roadways has been changing with the periodical change. If the studies and discussions within the traditional laws were focused on the maintenance of roadways, one need to raise the legal principal which can, including the maintenance, provide the basis of roadways as public goods that are provided to the public for more efficient and comfortable use herefrom. Furthermore, the legal principals regarding roadways should be formed in connection to the environmental issues which is the biggest issue in modern society on the basis of national land use and development.
  • 8.

    Study on the legal characteristics of land use zoning system

    송현담 | 육동연 | 2012, 56() | pp.175~189 | number of Cited : 0
    Land use zoning is one of City Management Plan (CMP). There has been a debate on what is a legal nature of CMP, because CMP has both sides of legal status at the same time; a legal norm and/or an administrative act. The court has taken a stance that CMP is an administrative act, because CMP is a kind of restrictive plan which allows the government to have a administrative disposition. If CMP is an administrative act, the private rights violated by CMP can be remedied through an administrative suit for revocation. However, in the real world, the violated private right cannot be easily remedied because the government's discretionary power on CMP has been recognized very widely as a freedom of formation. The Supreme Court had decided that the government's freedom of formation shall not be an unlimited power and thus the government's discretionary power shall be deviated or abused when there are deviation, defect, or mis-calculation of profit-loss measurement of government's discretionary power. It is meaningful that the judicial precedent had adopted the academical reasoning regarding to profit-loss measurement on administrative act, defects of profit-loss measurement, and discretionary power on land use planning. Nevertheless, the judicial decision seems to have some limitations such as the court did not mention the legal basis of ordering profit-loss measurement and the definition of defects of profit-loss measurement when the court decided deviation, defect, or mis-calculation of profit-loss measurement of government's discretionary power. In the case of discretionary power on land use planning, the defects of profit-loss measurement itself can be the cause of illegal administrative act. In such a case, the administrative planning shall be invalidated or cancelled pursuant to the gravity of the defects of profit-loss measurement.
  • 9.

    A study on improvement in the provision of construction site for apartment buildings enforced as a measure for migrating inhabitants

    Ok Kyung Yuh | 김은유 | 2012, 56() | pp.191~206 | number of Cited : 1
    The existing measures for migrating inhabitants take a simple form of selecting any one of the measures such as establishment of a migration settlement, provision of housing sites or apartment buildings, payment of a resettlement stipend for migrants. Such measures, however, have been causing high expenses for resettlement, which resulted in selling off the migrant's right to ownership of a parcel of land to a third party, and necessitated new migration measures due to deteriorating real estate market and migrants' resistance, for example, adoption of an unprecedented measure in Korea, i.e., provision of construction sites for apartment buildings in the administrative-complex city construction project. Under the Housing Act, however, although there are housing cooperatives and joint development projects conducted by land owners and building contractors in order to receive a construction site for apartment buildings, and thereafter build apartment buildings and for a migrant to acquire the ownership of an apartment, migrants are unable to select the method of housing cooperatives under the Housing Act, and the said joint development project is far from realistic because of the problems surrounding provisional attachment/seizure and decision-making. To improve and solve the above problems, this study has suggested adoption of a migrant-association system. On the other hand, project operators shall realize that migrants are their business partners in promoting the public interest projects concerned and that being considerate of migrants' interest is the shortcut to successful fulfillment of the projects, and therefore they should left no stone unturned in their efforts to establish/enforce truly effective measures for migrating inhabitants.
  • 10.

    Methods to acquire rights for residency on the law of city development

    lee jae sam | 2012, 56() | pp.207~242 | number of Cited : 8
    This means that on the federal law, human’s dignity, right to pursue happiness, and right to human life, etc., cannot be made without occupying residency. This also means that proper way of living is vital feature for human’s dignity and right to pursue happiness. In addition, National Housing Act chapter 5, part 2, number 1 sets the minimum standard of living as a human right to make a life good and proper, and number 2 tries to lower the number of households under the standard of living when the country, local organizations, and corporations proceed businesses to build resident places, and chapter 5, part 3, number 1 says that the country and local organizations need to support households uner the standard of living through offering resident places or housing fund. Also, the Built Environment Renewal Development Act chapter 1 develops those cities which need renewal or those in poor living conditions with plan, and by regulating items to make old and poor buildings better, sets the purpose of contributing on developing the city environment and enhancing the quality of livin standard. However, for the right of living, because the right of living is not stable as a result of faulty systemization of structures related to federal law of residency, the minimum standard of living, and especially policy operation of residency for low-income citizens on the Built Environment Renewal Development Act, the rights are violated or inefficient, indeed. There are differences between the reality and the contents about the policies and security, and usually there is lack of complete and detailed plans in the area with lots of low income and old households. Thus, it is necessary to establish related legal structure on residency in order to guarantee the right of residency. First of all, it is required to build the concept structure on the federal law of residency, and the settlement of residency related individual legal structure is needed. In addition, for the business of city development, the stable structure of citizens’ resident methods should be guaranteed. Guaranteeing resident right of citizens who are kicked out for city development business needs to be stipulated, and it needs to guarantee the necessity and methods of resident plan when lost it. Development business effects residents’ life styles, who lived for a long time, so that they get injuries economically, mentally, and psychologically as a result of the fluctuation in wealth, destruction of resident area, and collapse of unity. Thus, on the development business, moving plan as well as physical compensation should be widely given. This tells that active support is necessary such as giving priority for moving into public rent housing, supporting on rent fee for moving for civil rent housing, purchasing and supplying multi-family housing at concentrated area, supplying rent housing for low income households, supporting fee of parcel for citizen’s housing, supporting homeless citizens and labors to purchase housing and funding, funding for low income households, excluding income tax temporarily, expanding supplies of small housings. In addition, because self-employed small business owners among citizens of renewal area are spread a lot, it is important to let them re-settle or re-enter through ways like giving original merchants the right of lease prior to the other after completing business. In conclusion, federal establishment of resident concept, structure of individual laws related to residency, standard of low quality living, systemization of resident plan of low income households and policy operation on the law of city development. This consideration of rationality of resident plan on city development law, settlement and improvement of residency of citizens with low income is considered to contribute to improve the quality of citizens’ resident environment and their lives.
  • 11.

    A Legal Study on the Limits of the Compensation Systems by the Existing Compensation Law

    주종천 | 2012, 56() | pp.243~262 | number of Cited : 1
    The purpose of this study is to propose improvement measures in legal system as well as to suggest the point at issue about the compensation systems(including regulations) of the land by the existing compensation law resulted from the operation of public works. This study mainly includes the compensation provisions for the special type of land and the compensation systems(including regulations). The special type of land is as follows; illegally altered land, uncompensated land and unauthorized building site In particular, compensation system mainly dealt with its boundaries of legal provisions in terms of compensation system recommended by the owners This study presents the limits of regulation in each compensation area, and also proposed improvement plan for that study to be in accordance with the request of constitutional “Just Compensation”. The limits of compensation systems proposed in this study are supposed to be moved to the area of improvements, and more advanced studies are likely to be necessary to make that purpose possible. Finally, I hope this study will be substantially helpful to guarantee the rights of those who were deprived of properties due to the operation of public works.
  • 12.

    A Study on the Improvement of FarmlandManagement System in the Characteristics of Farmland Use - the case of the farmland in the metropolitan area and Jeonlabuk do -

    Jeong Hoe Gun | 2012, 56() | pp.263~284 | number of Cited : 1
    The purpose on the studying is to analyze farmland use characteristics of the areas that are Seoul and Gyeonggi-do that are a metropolitan area and Jeonlabuk-do that is not a metropolitan area as an case study area, and to show the farmland use and a management direction according to the characteristics. As a result, a decrease ratio of farmland area in metropolitan area was higher than Jeonlabuk-do, and the diversion ratio of the farmland was high, too. However, as for the main grain agriculture area, the ratio of Jeonlabuk-do area was higher than metropolitan area in comparison with a case study area. The future farmland use and the management system that must be improved based on farmland use characteristics are as follows. First, the metropolitan area is strong in the farmland use character as the part for urban land use. Therefore, it was showed what all the parts about the urban economic part, the part of agricultural production and the part of social environmental benefits must be considered totally in the farmland use of metropolitan area. It is showed facts that the collective of the farmland is necessary, because of the economy of scale, facts that the support of the government for this is requested in the farmland use of Jeollabuk-do. Second, It was showed that the possession and a cultivation scale of the farmland for the agriculture must be relaxed. Third, it was showed that the management according to the type of the farmland is required. A regional farmland use planning must be established according to the area that reflected the farming actual situation and the opinion of inhabitants.
  • 13.

    Die Entwicklung des europaeischen Umweltrechts und die Reaktion des koreanischen Rechts

    Song Dongsoo | 2012, 56() | pp.285~308 | number of Cited : 4
    Diese Abhandlung beschäftigt sich mit der Geschichte und den Organisationsstrukturen der Europäischen Union über die zentralen Ansätze der EU-Umweltpolitik und die Gesetzgebungsverfahren bis hin zu neuesten Entwicklungen in allen wesentlichen Gebieten des speziellen EU-Umweltrechts. Wie werden Verordnungen und Richtlinien – insbesondere für den Umweltsektor – in der Europäischen Union gemacht? Wie hat sich das EU-Umweltrecht in den letzten 10 Jahren entwickelt? Welche aktuellen Tendenzen sind im europäischen Abfallrecht, im Gewässerschutzrecht und im Naturschutzrecht zu beobachten? Diesen und ähnlichen Fragen widmet sich diese Abhandlung. 1972 forderten die Regierungschefs der Europäischen Gemeinschaft die Europäische Kommission auf, ein umweltpolitisches Aktionsprogramm auszuarbeiten. Mit diesem Schritt war die Notwendigkeit einer gemeinsamen europäischen Umweltpolitik erkannt. In den 1980er Jahren wurde die Europäische Gemeinschaft zu einer Europäischen Union aufgewertet. Ein bedeutender Schritt dorthin war die Einheitliche Europäische Akte (1987). Damit erhielt die EG einen bedeutenden Zuwachs an Kompetenz, u.a. eine ausdrückliche Kompetenz für eine EG-Umweltpolitik. Der Europäische Unionsvertrag von Maastricht (1992) hat darüber hinaus den Umweltschutz als Ziel der europäischen Gemeinschaft noch einmal rechtlich fest verankert. Die Europäische Union begründenden Verträgen unterstreichen, dass die weitere Entwicklung der Gemeinschaft auf dem Grundsatz der Nachhaltigkeit sowie einem hohen Maß an Umweltschutz und Verbesserung der Umweltqualität beruhen muss. EU-Rechtsakte sollen alle BewohnerInnen der Union ungeachtet dessen, wo sie wohnen oder arbeiten, in gleicher Weise schützen. Wenn ein Mitgliedstaat eine Richtlinie nicht ordnungsgemäß in einzelstaatliches Recht umsetzt, kann eine einzelne Person unter bestimmten Umständen eines Rechts beraubt werden, das sie den Vorschriften der EU gemäß besitzt. Vom Gerichtshof der Europäischen Gemeinschaften wurde entschieden, dass dieses Recht unter bestimmten Umständen auch gegen einen Mitgliedstaat durchgesetzt werden kann, der die zugrundeliegende gemeinschaftsrechtliche Norm nicht in seine Rechtsordnung einbezogen hat. Das EU-Umweltrecht hat großen Einfluss auf die Gesetzgebung des koreanischen Umweltrechts.
  • 14.

    Eine Studie über das Maßnahmegesetz

    Hong Wan Sik | 2012, 56() | pp.309~330 | number of Cited : 11
    Ein Maßnahmegesetz ist ein Gesetz, dass speziell für einen Einzelperson oder einen Einzelfall erlassen wurde. Die Maßnahmegesetze sind im Bereich von Grundrechtseinschränkungen generell unzulässig und ansonsten nur in engen Schranken zulässig. Als Maßnahmegesetze bezeichnet er solche Gesetze, bei denen die Schaffung einer Rechtnorm dergestalt in den Dienst eines Zieles gestellt wird, dass sie als Mittel zu dem betreffenden Zweck verwendet wird. Für den modernen Staat ist die Maßnahmegesetze unentbehrlich. Die Maßnahmegesetze sind meistens das Mittel zu erhalten die wirtschaftliche und soziale Balance. In diesem Sinne, sind die Maßnahmegesetze keine Verfallserscheinung parlamentarischer Legislation, sondern der Ausdruck einer gewandelten, stärker lenkend eingreifenden politischen Gesetzgebung. Die Maßnahmegesetze sind zulässig aber müssen sein gemässig für die Gewaltenteilung und Gleichheitsgrundsatz. Die Maßnahmegesetze verlieren ihren Sinn, wenn der Zweck, dem sie dienen, entfällt oder wenn die Mittel, die sie bieten, sich als ungeeignet zur Erreichung jenes Zweckes erweisen.
  • 15.

    A study on the legal issues about jurisdiction and control of superintendent of education

    Im, Hyun | 2012, 56() | pp.331~348 | number of Cited : 10
    The purpose of this study is to suggest legislative improvement for local education autonomy system through the analyzing of the current law and precedents. And This Paper reviews mainly the relationships between superintendent of education and another educational administrative body, that is, the minister of education, seience and technology, head of local government, local council and education committee under current law. For the realizing a true local education autonomy, reestablishment of function of central government and local education authority is needed. Furthermore it is also necessary to decentralize authority of the ministry of education, science and technology. In terms of control measures of central government, legal bases of measures should be clarified. And the effectiveness of legal remedies should be secured. In a relationship between superintendent of education and head of local government, reinforce their cooperation is the most important issue. And check the superintendent by the education committee and the local council should be permitted in substance. It takes effort to realize an democratic and self-regulating local education autonomy.
  • 16.

    Amtshaftung wegen pflichtwidrigen poizeilichen Unterlassens und Voraussetzungen für die polizeiliche Handlungspflicht - Oberstes Gericht, Urteil vom 9. 10. 2008, 2007Da40031 -

    Kim, Hyun Joon | 2012, 56() | pp.349~370 | number of Cited : 14
    Hierbei handelt es sich um die Voraussetzungen für die polizeiliche Handlungspflicht. Die Voraussetzungen, bei deren Vorliegen die Polizei zum Einschreiten verpflichtet ist, sind im Einzelnen umstritten. Das koreanische oberste Gericht hat in seinem Urteil vom 9. 10. 2008 entschieden, dass der Staat(Beklagte) keine Amtshaftung wegen pflichtwidrigen poizeilichen Unterlassens beim ‘Stalking-opfer’ hat, da es keine schwerwiegende und dringende Gefahr gibt. Als Maßstab zog unsere Rechtssprechung nur das Vorliegen der schwerwiegenden und dringenden Gefahr heran. Um diese Probleme klar zu lösen, schlägt die vorliegende Arbeit vor, dass folgende Maßstäbe miteinander berücksichtigt werden sollen; - Schwere der Rechtsgüter - Voraussehbarkeit der Gefahr - Vermeidbarkeit der Gefahr - Subsidiarität - Zuversicht der Bürger
  • 17.

    A Study on the Introduction of Tentatively Named Legal Acceptance Business according to Abolition of Institutional Delegation Business

    최철호 | 2012, 56() | pp.371~400 | number of Cited : 9
    The Revised Bill on the Local Autonomy Law that abolishes the institutional delegation business system the most as an element hindering independence and self-reliance of the local government and that reorganizes most of previous institutional delegation business into autonomy business and legal acceptance business that are business of the local government was submitted to the National Assembly on October 31, 2011 and is currently under review. The key of the Revised Bill on Local Autonomy Law is to be made as a business of the local government by newly establishing a system called a legal delegation business, so it can be said that the legal delegation business is almost the same system as a legal consignment business. This thesis researched in the comparative law aspect to draw implications in researching the birth background and its content of the legal acceptance business regulated in the revised current Local Autonomy Law of our country by analyzing several discussions on the positive and negative theories of the legal consignment business in Japan, namely, discussions on business distribution of the local government in Japan that abolishes more previously the institutional delegation business than Korea and reorganized this as autonomy business or legal consignment business. The purpose of business distribution in the revised local autonomy law has focused on readjustment of only a scope of business of the government-province inside a current system frame that keeps 3 classes of nationalㆍprovincial adminstration organization system composed of nation-metropolitan council-local governments, so it can be said that it is insufficient that the provincial adminstration system didn't reach the level reorganizing the provincial adminstration system fundamentally. However, even if the revision of the Local Autonomy Law is an innovation of incomplete and unfinished decentralization, it abolished institutional delegation business which is national business and reorganized many parts of the institutional delegation business as autonomy business or legal acceptance business, so it can be said that the responsibility assigned to the local governments is very big and that as the authority of the local governments was much assigned, the responsibility according to this is also large.
  • 18.

    A study on the Social Welfare Facility Evaluation System

    seon eun ae | 2012, 56() | pp.401~420 | number of Cited : 6
    The purpose of evaluating the social welfare facility is to establish the operating foundation of the efficient and effective social welfare facility, induce those facilities to have competition in good faith with each other and protect the human rights of their users. When it comes to facility evaluation, all social welfare facilities are legally prescribed to be evaluated more than once every three years with the amendment of the Social Welfare Service Act in 1998. So social welfare facilities have been evaluated since 1999. All social welfare facilities have been evaluated four times from 1999 to as of 2012. In evaluating social welfare facilities, their evaluation indicators have continually been revised and complemented with the change of the social welfare environment. And they have positively been evaluated by their employees as the social welfare quality evaluation group has been operated. But the periodical evaluation of social welfare facilities was institutionalized. Nevertheless, many reverse effects and problems have been raised such as the validity of evaluation indicators, the lack of objectivity of evaluation procedures, the limit of information provision for users' service choice, the difficulty of securing the specialized manpower related to evaluation, the qualitative deviation of independently conducted evaluation and the like. Therefore, to complement the problem of currently conducted social welfare facility evaluation, this study presented the scheme to revitalize the certification system of social welfare facility evaluation. The social welfare facility evaluation certification system can resolve several problems of the current facility evaluation system and present a direction for social welfare facilities to become better. The certification system would overcome the current evaluation system and perform a great role in securing the choice of prospective facility users.
  • 19.

    Formation of Pancasila as basic principle of Indonesian Constitution andits constitutional meaning

    Hae Cheol Byun | 2012, 56() | pp.421~442 | number of Cited : 6
    Indonesia is a country who has diverse cultures, religions, languages, etc. How can it maintain its unity as a state? It is possible to answer by mentioning "Pancasila". It is considered as basic principle of Indonesia. It is not only stipulated in the preamble of Indonesian Constitution, but also has been, in Indonesian history, formed with the lives of the Indonesia people and respected by them for a long time. It was prior to the declaration of the independece in 1945 that the indonesian founding fathers tried to create a philosophical and ideological foundation for a new state in future. The Investigation Committee for Independence having primarily discussed it, the Independence Preparatory Committee which included Sukarno and Hatta finally decided to adopt “Pancasila” as principle and ideology of a new independent state. It is composed of five principles: Belief in one and only God, nationalism in the unity of Indonesia, humanitarianism, consultative democracy based on deliberation and consent and social justice. “Pancasila” being inserted into the preamble of Indonesian Constituion, Indonesia became a “Pancasila”-based state.
  • 20.

    Application of the Precautionary Principle in potential risks of nanomaterials

    So,Jae-Seon | Lee, Chang-Kyu | 2012, 56() | pp.443~476 | number of Cited : 7
    As more use of nano-technology, 21st century technology has emerged as a key area of ​​development. So the field of nano technology in all industries is affecting a paradigm. These nano-technology attracted the attention of the state-of-the-art science and technology would be a way to break through congestion. So much about nano technology in the developed world to invest, and Korea also nano-technology, the economic value added is to make the investment. But nano-technology to create a very small nano-materials to penetrate the human body has the potential to cause harm. The penetration of nanomaterials on the human body that had existed up to now what kind of toxic substances than would result in a threat to humans: toxic nanomaterials are regulated by the Law and Justice First, people in the process of the Risk Society to protect the country's protection obligations can be expressed as: The Risk Society in the government for the development of science and technology risks for the safety of the people should be prevented in advance. However, due to the development of science and technology in modern society, the law can not prevent any risk or danger. Because the risk of development of science and technology occurs intermittently, rather than the disappearance from the environment and human influence, because constantly. Therefore, reactive rather than seeking remedies for the safety of proactive measures to strengthen the right. For this reason, the risk is not a surprise due to the damages received a full recovery is difficult. So, rather than compensation for damages received from the risks in advance is important to prevent. In this paper, therefore, these risks of nanoscale materials filed with the problem of how to discipline them lexicographic rules are intended to present the measures.
  • 21.

    Local Autonomous Entity’s Integration and Legal Tasks according to Electoral District’s Demarcation

    Jeong Kuk Won | 2012, 56() | pp.477~504 | number of Cited : 3
    Full-scale local autonomy has been achieved formally in our country by selecting local assemblyman of the entity in 1991, and then local governors by resident’s direct elections at 1995, but the necessity of administrative district’s reorganizations have been proposed for maximizing efficiency of the local autonomy practically. Though local administrative system’s reorganizations have merits of being able to strengthen efficiency and competitiveness of the local autonomous entity, but it could be said that matters of administrative reorganizations or its integrations are very important constitutional issues nationally in that one or a lot of local autonomous entities are disappeared by integrations, and it would entangle and make conflicts from political, economical, social, cultural, and historical interests sharply. And a matter of electoral district demarcation will be occurred in elections of local councils’ assemblymen by local autonomous entities’ integrations, thus these interest’s conflicts and contradictions have to rather be judged from value realizations’ perspectives in decentralization of power, not from public interests only. Integrations of local autonomous entities would contribute to goals such like its efficiency and competitiveness’s enhancement, but worries are being suggested that it could come out to central control’s reinforcement owing to intensified symptoms of centralism. If integrations of local autonomous entities become to strength centralism, this has to become on alert because it follows to disappearance of local autonomy and decentralization. Local administrative system’s reorganization having been taken roots well while experiencing trials and errors till now could become a retrogressive revision that would cause subordination of local politics to central ones and thus shaking local autonomy completely. Chapter 1 of 「he Special Act on the Reform of the Local Administrative System」is regulating “promotion organizations and procedures, standard and scopes, and national support etc for reorganizing current administrative system by coping with rapid changes of administrative environments, and aims at contributing to local competency’s enforcement, national competitiveness’s enhancement, and resident’s convenience and welfare’s promotions”. Realizing such purposes is rather available through local autonomy’s settlement, decentralization’s enforcement, and region’s balance developments than considering the method of local autonomous entities’ integrations as the top priority. For realizing integrations, Chapter 4 of 「he Special Act on the Reform of the Local Administrative System」is regulating budget (Article 25) and special supports (Article 26) etc according to ‘exemptions on integrated local autonomous entities and large cities,’ but local autonomy and decentralization are able to be strengthened if same supports are made to current each basic local autonomous entity instead of doing such supports to the integrated city between autonomous entities. Though administrative district’s reorganizations and local autonomous entities’ integrations are shown as being visualized and actualized by legal bases like 「he Special Act on the Reform of the Local Administrative System」 but it regulates that “In its promotions, MayorㆍCounty headmanㆍDistrict leader submit their opinions to MayorㆍProvince Governor, and then the latter submit it to Promotion Committee for Local Administrative System’s Reorganizations till end June, 2012 in principle. And then the Committee submits integrated plans of local administrative bodies to President and National Congress, and confirms integrated recommendations between local autonomous entities and integrated willingness of the local council after July 2012.” However, regardless of these regulations, there were not any local autonomous entities that submit integrated proposals voluntarily within the deadline of end December, 2011. When looking at these results, worries are suggested that local autonomous entities’ integrations by administrative system’s reorganizations would be finished such like ‘There is no matter whether it is done or not.’ Though some meanings could be filed up with debates on local administrative system’s reorganizations, but expenses of being charged to the nation and society will become too much great if it becomes the special act such like ‘There is no matter whether it is done or not.’ Therefore, local administrative system’s reorganizations shall be promoted by considering local autonomy and decentralization’s aspects carefully in addition to perspectives of realizing goals such like efficiency and competitiveness’ enforcement of nation and local autonomous entities in the process of its reorganizations.
  • 22.

    The constitutional meaning and value of 'due process of law' in korean constitution

    Pyo, Myoung-Hwan | 2012, 56() | pp.505~526 | number of Cited : 14
    Korean constitution has adopted the due process principle in 1987 that is one of domination principles of English-American law system. Due process principle is provided on the fifth and fourteenth Amendment of U.S.A. United State Supreme Court makes the good use of 'due process principle' as the guideline of the most important interpretation to solve the problems of a imperfection of the system in the basic right on constitution of U.S.A.. United State Supreme Court has been developing the protection system of basic right through the expansion of application sphere and the list of basic right and the limit of restriction of basic right and embodiment of the criterion of judging from the interpretation of the Due process provision Korean constitution has prescribed ‘due process provision’ in article 12 paragraph 1 and 3 influenced from american constitution. But due process principle on korean constitution and american constitution is different from the content and system of provision. Therefore it has been occurring problems that apply the law theory of United State Supreme Court for interpretation ‘due process provision’ in korean constitution. This paper has investigated which limits exist for the application the interpretation theory of United State Supreme Court as interpretation of ‘due process provision’ of korean constitution. This paper has also investigated how apply ‘due process provision’ in korean constitution. Due process provision is adopted in Korean constitution and then Constitutional Court of Korea is opened. So Constitution Court of Korea has applied the law theory of United State America Supreme Court for interpretation ‘due process provision’ in korean constitution. This paper has indicated those problems of application of our constitution Court. This paper has also investigated why does Due process provision in korean constitution needs.
  • 23.

    A Study on the Dwelling for Korean in Okubo Area, Japan

    Choi, In Ho | 2012, 56() | pp.527~550 | number of Cited : 2
    The purpose of this study is to find out the characteristics of dwelling for Korean in Okubo area, Japan in order to provide some information for better ethnic community plans for Korean in Japan. To analyze characteristics of dwelling, a questionnaire survey was conducted with 400 visitors and dwellers who lives in Okubo area located in Shinjuku, Japan from 1 October 2011 to 15 October 2011. 329 sheets of 82.25% of them were returned, all of every 329 valid samples were used in the analysis of characteristics of dwelling. As a result, in the case of 166 residents living in Okubo, the dissatisfaction of dwelling was 6.6%. Residents are satisfied with their living for convenience of transportation. However, the short-term(less than 1 year) dwelling residents accounted for 83.2% as an overwhelmingly high percentage. Because ethnic Korean residents living in the ethnic town are aware of the benefits of ethnic town in Okubo, as the first settlement of ethnic Korean residents in Japan seemed to be preferred Sinokubo ethnic town. However, 163 respondents who did not have experience of dwelling in sinokubo did not want to live in the Okubo area, because of the noises around in the Okubo area. Respondents who did not want to live in the Okubo area was 72.4 percent of respondents. This point was conflicting to the characteristics of dwelling in Okubo area.