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2012, Vol.58, No.

  • 1.

    The Korea-U.S. FTA and the Real Estate Policy in Korea

    KIM, MIN HO | KIM, JEEYEOP | 2012, 58() | pp.1~20 | number of Cited : 1
    Abstract
    This paper explores whether the Korean real estate policies may constitute indirect expropriation under the Korea-U.S. FTA. To do this, it analyzes the meaning of indirect expropriation and the indirect expropriation provisions in the FTA, focusing on how rare circumstances may be considered; and examines if major real estate policies in Korea may be found rare circumstances. It concludes that it would not be easy to find indirect expropriation in the Korean policies in that the Korean system shares the primary legal principles on real estate development with the U.S. and, most important, the trend in finding indirect expropriation by the international tribunals, as well as the U.S. courts, shows deferring a State's police power pursuing legitimate public goals. Nevertheless, the Korean system should be carefully improved and reformed to attain a more reasonable, systematic structure in international context.
  • 2.

    Controversial issues and tasks raised on Act on the Acquisition of Land etc. for Public Works and the Compensation Therefor, as Korea-US FTA entered into effect

    Heo, Kang Moo | 2012, 58() | pp.21~42 | number of Cited : 7
    Abstract
    Korea-US FTA entered into effect as of March 15, 2012. after 8 years’ discussion since 2003. Investment-related “Expropriation and Compensation” and “Indirect Expropriation” stipulated in Korea-US FTA is expected to give significant effect on overall real estate-related legal system in the future. Henceforth, the purpose of this paper is to review how the expropriation and compensation-related provisions would affect domestic legal system on land compensation and current real estate policy with Invester-State Dispute as medium, focusing on controversial issues and tasks. In this paper, Chapter Ⅱ cleared up the contents related to Act on the Acquisition of Land etc. for Public Works and the Compensation Therefor within Korea-US FTA Treaty. Chapter Ⅲ reviews the controversial issues of Korea-US FTA and Act on the Acquisition of Land etc. for Public Works and the Compensation Therefor. Chapter Ⅳ suggests the expected future tasks in Land compensation legal system as Korea-US FTA entered into effect.
  • 3.

    Zustand und rechtliche Untersuchung von sozialen Wohnungsbau

    Song Dongsoo | 2012, 58() | pp.43~68 | number of Cited : 26
    Abstract
    Sozialer Wohnungsbau bezeichnet den öffentlich geförderten Bau von Wohnungen, insbesondere für soziale Gruppen, die ihren Wohnungsbedarf nicht am freien Wohnungsmarkt decken können. Der Soziale Wohnungsbau in Korea hat seine Vorgeschichte im Jahr 1989. In den 1980er-Jahren entstanden in vielen Großstädten neue Siedlungen, die insbesondere Bevölkerungsgruppen mit kleinem Einkommen ein gesundes Wohnumfeld bieten sollte. Einige berühmte Beispiele finden sich in Seoul. Die gesetzliche Grundlage ist das Wohnungsgesetz, das als Ziel formulierte, Wohnungen zu schaffen, die nach Größe, Ausstattung und Miete oder Belastung für breite Schichten des Volkes bestimmt und geeignet sind. Das Gesetz über die soziale Wohnraumförderung regelt den Wohnungsbau und andere Maßnahmen zur Unterstützung von Haushalten mit Mietwohnungen. Je nach Regierungssystem ist der Soziale Wohnungsbau wirtschafts- und sozialpolitisch eine Ergänzung der Wohnbauförderung oder tritt an deren Stelle.
  • 4.

    Theory and Practice on the Activation of Urban Development by Private Sector - including the development of a raw land -

    BYUNG KI KIM | 2012, 58() | pp.69~106 | number of Cited : 3
    Abstract
    ‘The Urban Development Act’ was enacted under the catch-phrase of “multidimensional and appropriate correspondence to the new diverse demands of urban development in the 21st century”, in order to respond to the problems arising from the urban development under the previous ‘Housing Site Development Promotion Act’. Also, the Urban Development Act is evaluated to have realized the considerable institutional evolution in the sense that it had designed the ‘urban development business by private sector’ as the alternative, enabling sustainable supply of urban land. According to the Urban Development Act, in the course of proposing the urban development area, the private sector can carry out their business as actual players and even have the right of eminent domain upon certain conditions. The urban development by the private sector as the main players can make up for the negative effect resulting from the previous urban development led by the public sector, specifically; the resistance by the citizens against the public sector's expropriating method of urban development, enhancement of private sector's technological skills and financing capabilities, and possibility of a creative urban development, getting out of standardized urban development etc. Furthermore, in the macroscopic aspect, the development by the private sector is in accord with the small government-oriented tendency, the private sector's improved participation in the public utilities, and the free flow of private capital due to the relaxed regulations, and neo-liberal trend such as the establishment of competition system between public and private sector etc. Nevertheless, despite these positive effects, many problems are pointed out, so in the matter of the right of eminent domain, whether to admit the public interest of the urban development business should be decided, considering the purpose, scale, and development plan; and public expropriation should be determined accordingly, while balancing public and private interest. Moreover, whether the institutions designed for the private sector's improved participation are highly effective or bring adverse effect is debatable. In addition, private sector can develop a raw land it was supplied with; According to existing law, the supply of raw land institution under the Urban Development Act and the advance supply regulation according to the advance-supply of raw land of ‘the Bogeumjari Housing Construction Site Process’ under the Ministry of Land, Transport and Maritime Affairs are the examples. Both are the same in the sense that they can be supplied with and develop a raw land; however, different in the laws they are based on and the time stages when the supply occurs. In the case of the private sector's development of a raw land they are supplied with, ecofriendly and dimensional development is possible by establishing both land use plan and architectural plan; and a creative urban development can be induced by the relaxation of the initial funding, quick land supply, effective use of land through the whole development of land and building, and supply of land tailored to consumers. However, the problems caused accordingly should not be overlooked; especially, the institutional weakness must be examined and complemented based on the experience of the Amended Sejong City Act. It is evident that the positive effect can be anticipated by the private sector's participation in the urban development. Even so, it should be discussed in the perspective of securing public interest in the light of the distinctiveness of private sector. As the participation of private sector basically assumes profit maximization, in order to minimize the adverse effect, subject and scope should be determined so as to prevent the impairment of public interest; and the role of public sector is more than important in this respect.
  • 5.

    Status and Legal review of Lawsuit seeking the payment of compensation

    Guk-Soo Jeon | 2012, 58() | pp.107~130 | number of Cited : 3
    Abstract
    Any project operator may expropriate the land, etc. by the adjudication of the land expropriation committee, when it is necessary for implementing the public works on ACT ON THE ACQUISITION OF LAND, ETC. FOR PUBLIC WORKS AND THE COMPENSATION THEREFOR. The landowner or person concerned for any losses incurred by the acquisition or use of the land, etc. may receive indemnity on the adjudication. Any landowner etc. who is dissatisfied with the adjudication, may institute an appeal litigation on the adjudication. In cases where an administrative litigation intended to concerning the increase or decrease in the indemnity, he/she may institute a lawsuit seeking increase or decrease the payment of compensation. The landowner etc. may receive indemnity for losses when there is any decrease in the price of remaining land or other losses, any business losses incurred by the discontinuation or suspension of business, etc.. by this ACT. But there is no provision with the process of receiving compensation. In that case, any person who may receive indemnity, he/she via an adjudication, may institute an appeal litigation on the adjudication or a lawsuit seeking increase or decrease the payment of compensation. But he/she may institute a lawsuit seeking the payment of compensation(party litigation) without going through an adjudication.
  • 6.

    A legal review on lifting of the redevelopment district designation - With reference to the revised law (Feb. 1, 2012) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents and the Special Act on the Promotion of Urban Renewal -

    Seung Pil Choi | 2012, 58() | pp.131~160 | number of Cited : 11
    Abstract
    The Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents and the Special Act on the Promotion of Urban Renewal were revised in February 2012. The revision is expected to make positive contributions to settling down the situation where land owners, etc. are still being restricted in exercising their property right despite a continuous failure in the promotion of redevelopment projects due to deteriorated profitability and to changing them into new types of projects and therefore to promoting improvement and development of urban residential environments. The key content of revision of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents is as follows. The revised law allows for small-scale residential environment improvement projects even in areas where old and poor quality buildings are located densely together with residential environment improvement of detached and multiplex housing by expanding the types of projects set forth by the Act. However, the most important element in the revision is lifting of the redevelopment district designation where project development is being delayed. The designation is lifted in case of a delay in project development, such as a delay in application for permit by the project promotion committee and union, or in case project promotion causes excessive burden on residents. However, the lifting of designation is not through resolution by the promotion committee or union and therefore, it leads to an issue of sharing expenses previously spent in the course of promoting a project. The revised law stipulates to provide the project-related information including the estimated share of expenses to land owners, etc. and therefore to have the residents decide the status of project promotion based on the information provided. In addition, the scope of information provided in relation to redevelopment projects has been expanded. Moreover, the ratio of direct participation by union members in important general meetings was upwardly adjusted and implementation of the public management system where administrative authorities take part in a project promotion has been expanded. The revised contents of the Special Act on the Promotion of Urban Renewal are as follows. As the most important content of the revision, the effect of a district designation is forfeited in case the promotion plan is not implemented for more than two years after designation of a redevelopment promotion district. However, projects relating to infrastructures will be continuously implemented in order to enable development of backward areas. Residents' participation has also been increased. At the same time, support from the central and local governments on development of backward areas has been strengthened. The revision brought to surface an issue of conflict among residents and the burden of cost. However, as a whole, it will contribute to improving on some of the irrational elements detected in the course of urban redevelopment in the past.
  • 7.

    Case Study on the Legal status and Business scope of Authorized Property Appraisers

    육정균 | 2012, 58() | pp.161~178 | number of Cited : 3
    Abstract
    The thesis mainly deals with the legal status and business scope of authorized property appraisers. Recently, financial institutions such as commercial banks establish their own appraisal division and hire appraisers to reduce financial costs such as appraisal commission on collaterals for home mortgages. Under these circumstances, the appraisal industry requests financial institutions to stop such practices, arguing that the internal self-appraisal will severly affect the appraisal market and infringe the appraisal business scope. But, effective measures have yet to be developed. Also, as the proper market price for land appraisal is difficult to be determined due to land's unique characteristics, the government allows state registered appraisers to set the market price, with a view to protecting citizens' property right and developing national economy. In Korea, the appraisal business can be performed by the people who gain the legal status as licensed authorized property appraisers and open their own offices. The Public Notice of Values and Appraisal of Real Estate Act stipulates that appraisal or consulting on collaterals of financial institutions shall be granted only to the licensed authorized property appraisers who have their own offices. Furthermore, the government temporarily allowed the internal self-appraisal from 1989 to 30 June 2004 when National Agricultural Cooperative Federation, National Federation of Fisheries and Korea Federation of Livestock provided a loan with official funds to businessmen in the agricultural and fisheries industries. Accordingly, the internal self-appraisal performed by financial institutions is clearly unconstitutional under the currently enforced laws. They will face heavy penalty and their appraisers will lose licenses if the institutions violate the law. The internal self-appraisal in the financial institutions generate many problems such as poor appraisal performances including overestimation of collateral values that lead the institutions to the risk of being bankrupt in an economic recession, difficulty for self-verification and infringement of other business areas. In conclusion, appraisal on collaterals of financial institutions shall be done only by the authorized property appraisers with their own offices. The financial institutions who continue internal self-appraisal may face maximum 2-year imprisonment or no more than 30 million won of penalty. Therefore, they should voluntarily stop the practices without delay.
  • 8.

    A Study on the improvement and the actual condition of the sales compensation of the Housing Redevelopment project

    Pilkyu Cho | 2012, 58() | pp.179~196 | number of Cited : 7
    Abstract
    This study aims to suggest the solution for the sales compensation of the Housing Redevelopment Project by the analysis of the actual condition and the problem. As a result, it needs following strategies. First, we need a change in perception between related parties and need a public effort. It is necessary to consider whether to compensate for the store's premium or not and the improvement at government level. Second strategy is the readjust the amount of sales compensation to a realistic level. For this strategy, it has to be preceded to make public the sales compensation details. The real estate appraisal of the previous assets excluding the development gains and the calculation of the ratio including the development gains are also needed, by the appraisal at the point of the exhibition district designation before the public. Third, the supports resettlement of original resident. It is necessary to give priority rights of lease rather than ownership of a parcel because it can cause increasing the burden on the small-scale businessman. But it can leed to problems of their overdue rental fee, measures to deal with these problems are also required.
  • 9.

    a Study on the constitutionality of private takings for economic development - focused on the analysis of the U.S. Supreme Court's decisions -

    In-Sun Seok | 2012, 58() | pp.197~220 | number of Cited : 6
    Abstract
    The Fifth Amendment to the United States Constitution(hereinafter “Taking Clause”) prescribes “Nor shall private property be taken for pubic use, without just compensation”, meanwhile the Korean Constitution section 23(3) provides it. Both of the provisions have similar meanings in spite of trivial differences on the forms. Recently, the statutes which government delegates the eminent domain authority to private entities are increasing more and more, especially for economic development including urban redevelopment. The Korean Constitutional Court ruled private takings for individual complex project constitutional takings in 2007 Hunba 114 (2009). The question of whether the statute that provides delegation of the power of eminent domain to private entities is constitutional depends on whether the purpose of takings comes under ‘public use’ or not. Since the middle 20th century, the Supreme Court has ruled the concept of the public use with a broad sense. This article examines whether the use of eminent domain to transfer property from one private party to another for economic development can satisfy the public use requirement of eminent domain. In this article, Part Ⅰ raises the need to preview the subject and PartⅡ deals with the unfolded debates about meaning of the Taking Clause. In Part Ⅲ, I analyze and examine the cases of state Supreme Court and federal Supreme Court involved takings for economic development. Looking over the legal reactions in states and federal government after Kelo case in Part Ⅳ, I synthetically consider debates on whether private taking for economic development is constitutional in Part Ⅴ. Finally, I suggest that the legal and institutional safeguards are needed to protect property right from overreaching private takings and that it is necessary for us to give a full heed to American experience in the process of eminent domain and to conduct in pursuit of balancing between protecting the property right and promoting the public interest.
  • 10.

    Constitutional Study on the PFI for Infrastructure - Focused on the purpose and it's limits of the PFI -

    Seokhan Hong | 2012, 58() | pp.221~244 | number of Cited : 11
    Abstract
    Infrastructure is public goods performing important functions for economic growth and people's lives. So, traditionally it has been installed and operated by the state. However, as the inefficiency of the public sector and financial limitations are pointed out, private finance initiative for infrastructure project has been increasing steadily. As Infrastructure is essential precondition for social integration and a nation as a unity, so material conditions to realize the fundamental rights guaranteed by the constitution. In addition, infrastructure is a very important means of economic growth, as well as balanced regional development and social justice in which the state seeks to realize the goal of social state principle. The constitutional responsibility of the state should be highly emphasized in these aspects of the infrastructure. However, such a state should be responsible for infrastructure, it does not deny that the state introduce a system of private investment to overcome the financial limitations to satisfy the demand for infrastructure. The goal of the private finance initiative for infrastructure is to make national economic development in an efficient expand and operate of the infrastructure, and ultimately aims to contribute to enhanced benefits of the people and public interest. However, it is not clear that the efficiency of the infrastructure projects which are driven through the private investment could be higher than that be run and funded directly by the state. People through private investment institutions have more opportunity to take advantage of the infrastructure because it is possible to expect the infrastructure could be expanded with private capital. But when the constitutional responsibility of the state to the infrastructure is assumed, we have to admit these benefits can be recognized only limited. In addition, the nature of private investment projects is debt of the people to pay through elevated fees and taxes, so it's profits are very limited. Also, the cost of infrastructure projects will be charged to the individual user, it is becoming more difficult to achieve social justice. The regulatory agencies are easy to captured by private investment group. Considering these side effects can be occurred, the public interest can be realized by private investment projects is uncertain. Eventually, it is necessary to approach the private finance initiative assuming that the infrastructure should be installed and operated by the state on the burden of the whole community, in this sense, it is need to be more specifically defined the requirements and procedures, the scope and limitations of private investment projects, and private investment in infrastructure is exceptionally allowed only when the urgency and necessity are clearly recognized.
  • 11.

    Legal Characteristics and Forces of Officially Announced Land Price

    LEE SANG HOON | 2012, 58() | pp.245~266 | number of Cited : 2
    Abstract
    The officially announced land price is classified into two land prices that are the officially assessed reference land price(hereinafter referred to as “the reference land price”) and the officially assessed individual land price(hereinafter referred to as “the individual land price”) according to the public notice of values and appraisal of real estate act(hereinafter referred to as “the public notice act”). The public notice of values and appraisal of real estate act protects the people's right to know on the property right by providing the officially announced land price of the whole nation to the public. Due to the fact that the reference land price and the individual land price yearly assessed based on the reference land price have been used as a standard of assessment for the people's property tax and etc. and a huge source of securing the stable tax revenue, the officially announced land price has a great force in the aspect of fair taxation. On the one hand, although the appraiser business operator revises a gap between the officially assessed land price and its actual market value by using the extra factor in the process of official appraisal based on the reference land price, the extra factor that is not stated in the public notice act has been approved by a practice of the appraiser business and a judicial precedent. Additionally, the action that the Financial Supervisory Commission tries to establish a new provision in the supervisory rule regarding the banking operation needs to be corrected because it denies the practice of the appraiser business and the judicial precedent which have been accepted by the banking operation and the appraiser business. Thus, the administration related to the announced land price needs to develop the announced land price system positively and expansively in order to reduce the national treasury by assessing various land prices according to the utilization of the public notice act and to maintain the asset soundness of banks by the adequate evaluation of the collateral security and the just compensation, close to the actual market value, that is assessed by the objective appraiser business operator.
  • 12.

    A Legal Review for the improvement of Land Category System

    Hyun-Joon Lee | 2012, 58() | pp.267~282 | number of Cited : 4
    Abstract
    The purpose of this study was to suggest the improving means for establishment of efficient land category system by examining the concrete methodology concerning determination of land category. In order to achieve this goal, this study firstly investigated several existing papers and statutes, related to land category or land category system. And then, this study reviewed the main issues and problems such as the backwardness of standard for determining land category. As the results, many problems such as the land category discrepancy, illegal land development and use, natural phenomenon, unclear standards for the classification of land category, irrational classification standards, and lack of standards for ground and underground facilities have been emerged. And also, this study urged the concrete solutions on the reviewed problems by suggesting the legal basis and reasonable methodology for resolving the land category discrepancy problem. In addition, this study suggested the technical method for the improvement of present land category system.
  • 13.

    A study on the Improvements of Professionalism in the appraisal business

    Choi, In Ho | 2012, 58() | pp.283~302 | number of Cited : 2
    Abstract
    The recent, amid deepening economic woes, the high-tech information society has taken a step forward in the nation and the securitization of the property market is changing very fast. The appraisal business in such situation faces galapagos phenomenon . The purpose of the study shows how to increase expertise of the appraisal business, to overcome galapagos phenomenon. As a result, how to increase expertise of the appraisal business are as follows. First, cooperation with a patent attorney to appraise intangible assets, second, improvement of a qualifying examination system for the appraisers, third, imposition of the remedial education system, fourth, effective construction and administration of the appraisal information system, fifth, unification of the appraisal related law. finally, the appraisers must force an effort only of oneself strengthening the specialty that utilized OODA loop to have competitiveness in the already overheating market of real estate.
  • 14.

    Issues regarding the Partial Amendment to the Rental Housing Act

    Sunbae Lee | Jae Kwang Kim | 2012, 58() | pp.303~324 | number of Cited : 6
    Abstract
    The bill, a partial amendment to the Housing Act, is submitted to the Land, Transport and Maritime Affairs Committee of the National Assembly at Congressman Kim Tae-ho’s proposal, with major support of tenants in Kim-hae area. It is argued that the amendment is written for the tenants. The amendment includes some new provisions and other partially amended provisions. The main contents are comprised of provisions regarding the recovery of the full amount of the National Housing Fund, the criteria for appraisal prices relating to the conversion of rental housing for sale and the upper limit, retrospective application of the criteria, approval by the head of a Si, the head of Gun, or the head of Gu of rental conditions, and relevant penal provisions. Those provisions are for lowering the appraisal prices relating to the conversion of rental housing for sale by changing the criteria and ultimately for promoting tenants who reside in public rental housing to own a home. The main point is to retrospectively apply the same criteria for appraisal prices relating to the conversion of rental housing for sale to ten-year public rental housing units, as applied to five-year public rental housing units. Because the appraisal prices relating to the conversion of rental housing for sale directly affects interests between a landlord and a tenant after the tenancy is terminated, it is necessary to analyze the criteria for appraisal prices relating to the conversion of rental housing units for sale, the upper limit, and the timing for the application of the appraisal prices, in terms of the objectives of policies for rental housing and impartiality between landlords and tenants. Especially, after the simulation of the upper limit of appraisal prices relating to the conversion of rental housing for sale in an area such as Pan-gyo where housing prices had dramatically risen, the result turned out that the real prices relating to the conversion of rental housing for sale, if the conversion is made after the termination of ten year rental period, is projected to range from 160 percent to 200 percent of the housing prices (construction cost) at the time of the recruitment of occupants. In cases of ten year rental housing units, since the profits of rental business operators are guaranteed for a rental period by law, the housing prices seems to rise higher. The more housing prices rise in the relevant area, the prices for the conversion of rental housing for sale seems to rise higher. Thus, it turned out that such increase deprived tenants of the opportunity to own a home. Also, the deprivation was against the objectives of the policies for rental housing.
  • 15.

    - Specialty and Technology of Administrative Appeals -

    Woo-Suk Chae | 2012, 58() | pp.325~346 | number of Cited : 9
    Abstract
    Administrative Appeals is one of the administrative litigation procedures which deals with administrative agency’s judgment on disputed claims related to various intendance’s illegal or unjustifiable disposition or omission, and the Administrative Appeals Act is the general rule regulating the administrative appeals. On the other hand, Special Administrative Appeals is one which applies special procedures applicable for certain individual laws and regulations where Administrative Appeals Act is not applicable in specific administrative cases. However, application of two different litigation procedures raises conflict issues due to legislative or interpretation of such procedures. So as to solve these issues, contents regulated by the Administrative Appeals Act have been recently amended. Nevertheless, the special administrative appeal is necessary as the litigation procedure for the dispute resolution in the specialized and technical special administration field and there need to be more research to backup what types of special administrative appeal procedures need to be established.
  • 16.

    A Study on the range and the limit of autonomous legislative power - Focuing on theory and case of Municipal Ordinance about public security of Tokushima city in Japan -

    Shin, Bong-Ki | YeonPal Cho | 2012, 58() | pp.347~378 | number of Cited : 5
    Abstract
    일본에서는 자치권에 대하여 고유권설과 전래설이라는 두 개의 기본적인 견해가 있는데, 전래설은 다시 협의의 전래설과 제도적 보장설로 나누는 것이 일반적이다. 그리고 근자에 이르러서는 제도적 보장설의 한계를 극복하기 위하여 보완성 원리를 바탕으로 한 新固有權設이 주장되기도 하였다. 또한 조례제정권의 근거에 관하여서 이를 일본 헌법 제92조에서 찾는 견해와 동 헌법 제94조에서 찾는 견해의 대립이 있으며, 일반적으로 협의의 전래설에 선 학설에 의하면 그 근거를 헌법 제94조에서 찾게되고, 제도적 보장설을 취하는 견해는 그 근거를 동법 제92조에서 찾는다. 또한 「최대한 규제론」이 말하여지고 있는데, 이것은 어떠한 법률이 제정되어 있으면, 국가의 규제는 모든 경우에 내셔널․맥시멈(최대한 규제)이어서, 법률 중에 조례를 인정하는 명시적 규정이 없는 한, 조례로서 규제범위를 확대하거나 기준을 강화할 수 없다는 생각으로서 법률선점론과 동일한 의미를 갖는다. 결국 협의의 전래설, 94조 근거설, 법률선점론 및 최대한 규제론은 서로 의미하는 바가 동일하고, 반대로 제도적 보장설, 92조 근거설, 수정법률선점론, 최소한 규제론(최저기준론) 또한 서로 의미하는 바가 동일하다고 할 수 있다. 일본에서는 토쿠시마시(徳島市) 공안조례 사건 이전에는 주로 법률선점론에 의거하여 판결이 행하여졌으나, 토쿠시마시 공안조례 사건에서는 수정법률선점론을 채택하여 일정한 경우에는 비선점영역에서도 조례제정권이 부정되기도 하고 선점영역에서도 조례 제정권이 인정되기도 한다. 그리고 일반적으로 추가조례는 「국가의 최저한도 규제입법마져도 흠결되어 있는 지역의 특수성을 규제하는 조례」라고 하거나, 「취지 목적이 동일한 경우에도 법령과 다른 대상에 규제범위를 확대한 조례」라고도 설명되나, 이 토쿠시마시 공안조례사건의 판시내용에 의하면 「일정한 대상에 대한 법령이 없는 경우에 법령과 동일한 목적으로 제정된 조례」의 다른 표현일 것이다. 또한 초과조례는 법령과 동일한 대상에 대하여 동일한 목적을 가지고서 한층 더 엄격한 규제를 행하는 조례를 말한다고 할 수 있다. 조례의 위법성 판단방법은 토쿠시마시 공안조례사건의 판시내용에 의하면 추가조례의 경우에는 「법령이 이를 방치하여 두는 취지인지」여부에 따라 판단하게 되고, 초과조례의 경우에는 「지방의 실정에 따라 특별한 규제를 행하는 것을 용인하는 취지인지」여부에 따라 판단하게 된다. 그리고 이 후의 일본의 판례는 거의 대부분 토쿠시마시 공안조례사건 판례의 정식에 따라 먼저 일정한 대상에 대하여 법률이 선점하고 있는지를 판단하고 그 다음에 목적의 상의를 따져 어느 유형의 조례인가를 판단한 다음, 거기에 위법성 판단방법을 대입하여 조례의 유무효를 판단하고 있다. 물론 목적의 상의를 따지는 것은 결코 쉬운 일이 아니어서 여기에 대하여서는 많은 문제점도 지적되고 있으나 그래도 일정한 정식을 만들어서 판단을 하게 됨에 따라 나름대로 일관성은 가질 수 있다고 할 수 있다. 우리나라에서 조례와 법률이 양립할 수 있느냐의 문제에 대하여 「법률의 위임이 있어야 주민의 권리제한이나 의무부과가 가능하다는 다수설․판례의 입장에서는 이 토쿠시마시 판례 정식은 큰 의미가 없다」는 주장이 있다. 하지만 양평군 묘지등설치허가시주민의견청취에관한조례안 무효확인 사건이나 수원시 차고지확보조례안 무효확인 사건에서 보여지는 것처럼 법률의 위임이 있어야 주민의 권리제한이나 의무부과가 가능하다는 다수설․판례의 입장에서도 법률유보의 적법성이 인정된 뒤에는 법률의 우위원칙 위배여부에 대하여 판단하여야 하는 바, 이 주장은 타당하다고 보여지지 않는다. 다만 법률우위의 문제를 논함에 있어서 토쿠시마시 공안조례 사건의 사정거리를 명확히 할 필요가 있다. 이 토쿠시마시 공안조례사건의 판시내용은 규제분야에 있어서 과거에 법률선점론 또는 협의의 전래설에 입각한 판례의 반성에 의해서 새로운 기준에 입각하여 조례제정권의 범위를 확장한 판례로서 법률의 우위가 문제시되는 사안을 해결하기 위하여 나온 판례라고 할 수 있다. 그런대 우리나라 대법원에서는 법률의 유보문제를 다투었던 「제주도 자동차대여사업조례안 무효확인청구사건」에서 이 토쿠시마시 공안조례 사건의 일반 정식을 아무런 이유설시 없이 사용하고 있고, 오히려 추가조례나 초과조례의 한 유형이어서 이 정식의 설시가 필요하다고 보여지는 「수원시 차고지확보조례안 무효확인청구사건」이나 「경기도 양평군묘지등설치허가시주민의견청취에관한조례안 무효확인청구 사건」에서는 일절 언급도 하고 있지 않아서 이러한 판례의 판시방법이 과연 그 체계성의 면에서 바람직한 것인지 생각하여 보지 않을 수 없다.
  • 17.

    A Study on Decentralization Reformation and Ordinance Legislation in Japan

    Jang Kyo-Sik | 2012, 58() | pp.379~396 | number of Cited : 3
    Abstract
    The Local Autonomy, the basis of grassroots democracy, has been an important task in managing a state throughout the entire history of human beings. However, the practical decentralization which enables the local administration is recently one of the difficult issues of each state. Reformation for decentralization has been actively implemented in Japan as well as Korea. As the institutional mandatory affairs were closed with respect to the ordinance legislation by local authorities for the reformation of decentralization in Japan, a remarkable change is expected. This paper investigated the relationship between the acts and ordinances on the aspect of the expansion of ordinance legislation by local authorities and the decentralization in Japan. Local authorities deal with the affairs in accordance with the national laws in reality. The payment affairs as well as regulatory affairs are determined by laws and the implementation processes of such affairs are specified by laws in detail. The discretion of local authorities is restricted because the local affairs are subject to the laws. This is why it is so difficult to implement the administrative operation depending on local conditions. Accordingly, the problem of supplementation and conflict between national laws and independent legislation by local authorities is generated. Japan accepts various forms of ordinances through respect to the relationship with the laws and independent legistration by the local authorities. Moreover, Japan enables the extensive approaches for legislation of diverse independent ordinances by the creative efforts of local authorities through decentralization reformation. In addition, local authorities can implement independent local administration suitable for local conditions through independent interpretation of laws. The expansion of the ordinance legislation demonstrated by the local authorities in Japan is significant on the aspects that laws are properly interpreted and implemented suitable for local conditions for unique solutions against challenges and policy implementation in each region and unique, independent and creative local autonomy is realized by unique ordinance legislation suitable for each region and its features. The discussion on decentralization and ordinance legislation in Japan explained above is meaningful to Korea with respect to the decentralization reformation of local authorities as well as the independent legislation by the local authorities in Korea.
  • 18.

    Das Verhältnis zwischen der Verpflichtungsklage und der Anfechtungsklage gegen die Verweigerung - eine vergleichende Untersuchung zwischen dem koreanischen Entwurf und den deutschen und japanischen Gesetzen -

    Kim, Hyun Joon | 2012, 58() | pp.397~422 | number of Cited : 10
    Abstract
    Die vorliegende Arbeit befaßt sich mit dem Verhältnis zwischen der Verpflichtungsklage und der Anfechtungsklage gegen die Verweigerung. Dabei handelt es sich um eine vergleichende Untersuchung zwischen dem koreanischen Entwurf und den deutschen und japanischen Gesetzen. Das Justizministerium hat im letzten Jahr die Kommission für Novellierung des Verwaltungsprozessgesetzes aufgestellt. Nach zähen Debatten hat sie neuerdings einen Entwurf für Novellierung fertiggestellt. Es ist wohl zu erwarten, dass in absehbarer Zeit die Verpflichtungsklage zum ersten Mal in das koreanische Verwaltungsprozessgesetz eingeführt werden kann. Bei der künftigen Verpflichtungsklage sollen insbesondere folgende Punkte berücksichtigt werden;-die Auswahlmöglichkeit zwischen der Verpflichtungsklage und der Anfechtungsklage gegen die Verweigerung -die Bedeutung des Antrags im Sinne von Verwaltungsprozessgesetz und Verwaltungsverfahrensgesetz -die Arten von Urteilen in der Verpflichtungsklage im Zusammenhang mit dem Begriff der Spruchreife.
  • 19.

    A Study on the Role of Local Autonomous entity and Legal Improvements in Korea’s Multicultural Society

    Kim, Dong-Ryun | 2012, 58() | pp.423~450 | number of Cited : 7
    Abstract PDF
    The purpose of this study is to enhance the role of Korea’s local autonomous entity in today’s multicultural society, and to suggest legislative and policy improvements that will enhance the quality of life for all Korean residents. After carefully comparing Korea’s societal needs and available resources, I make these recommendations. First, establish a department for integration that serves as a permanent management organization to oversee the smooth assimilation of other cultures into Korea. Second, revitalize the role of local autonomous entity by transferring administrative work from the central to the local level where a better understanding of specific needs exists and for the convenience of residents. Third, adjust local government ordinances to more accurately reflect regional demographic changes. Fourth, modify legislation and policies to encourage participation of foreigners in local autonomous entity activities. Finally, provide educational services for spousal support and to familiarize foreigners with basic laws to better integrate the community. Korea’s multicultural society is today’s reality. Both national and local autonomous entity must commit resources to better understand its needs while recognizing that each citizen can contribute to the betterment of the local community and our nation.
  • 20.

    Reconsideration of the legal concept of regulation

    Kim, Sung-Bae | 2012, 58() | pp.451~474 | number of Cited : 1
    Abstract
    The Coalition Government of the United Kingdom elected in May 2010 has already set out some important changes to the country's structures for regulation. For example, the institutions for regulation of financial services and healthcare are to be reorganised and the previous Government's regulatory reform programme is to be extended. These plans include substantial cuts in government expenditure, and the Spending Review determined the share of the cuts to be taken by individual government departments and programmes. the SR is about more than just the allocation of funds; it forms part of fundamental reforms in the role of the public sector and the delivery of public services. Past study of regulation has assumed that it is concerned with hierarchical relations between state regulators and private actors, rather than with relationships within the state itself. However, it is striking that definitions of regulation have widened considerably recently, at least in the sociological, if not the economic, literature. Regulation is secured by organizing economic incentives to steer business behaviour, by moral suasion, by shaming and even by architecture. This article will examine the spending review process from the viewpoint of regulatory studies and find suggestion for Korean Regulation studies and budget distributing process.
  • 21.

    The Legal Status of the Gosiwon and Issues

    Min, Tae-Wook | 2012, 58() | pp.475~496 | number of Cited : 4
    Abstract
    The Gosiwon is originated from reading room system that is furnished a sleep room for effective study. The sleep room is so narrow that only one people can lie on and is lacked even basic amenities. At first a great part of users of the Gosiwon was the state examinations preparers, but after the Asian financial crisis in 1997 major users were changed to low-income group. The interests between leaser and lessee is harmonized, because leaser can earn high profit by leasing many low - grade room and lessee can save money by low -price room. So the Gosiwon has been increased consistently around capital area. In past the Gosiwon was illegal because it lacked residental facilities as house, but at 2009.7.16 Building Codes legalized the Gosiwon. In spite of legalization, the Gosiwon has many problems in public law. First, the legal definition of the Gosiwon is not adequate. Building Codes looks the Gosiwon as study facility not as house. In fact the Gosiwon is used as house by low-income group, so it is reasonable that the Gosiwon is classified as house in Builing Codes. Second, the Gosiwon worsens residental environment and makes city control difficult because it is built too intensively. And the Gosiwon can not meet the minimum dwelling standard that the Housing Act requires for house. Third, the Gosiwon incapacitate zoning system which seeks to protect residental environment. Because the Gosiwon is classified as neighborhood facilities, it can be located any zone that is not adequate to live. So It is not proper to supply the Gosiwon as residence purpose to low-income group. The housing policy for low-income group should be pursued by house that satisfies the minimum dwelling standard that the Housing Act requires. It is desirable to abolish the Gosiwon.
  • 22.

    Legal research to strengthen the Scientific disaster management system

    나채준 | 2012, 58() | pp.497~526 | number of Cited : 0
    Abstract
    Recently Large-scale natural disasters occur frequently due to environmental changes such as climate change. Specifically, in 2011, There were a lot. such as worldwide earthquake and tsunami, floods and heavy rains caused a large natural disaster, etc. The earthquake and tsunami in Northeastern Japan(March 2011), record rainfall and flooding of rivers in Thailand(October 2011) make huge loss and paralysis of state functions. In Korea, July 2011,there were a lot of damage caused by woomyunsan landslides and flooding of Gwanghwamun Plaza, Landslides in Chuncheon due to Metropolitan rainfall. The Problem is that these natural disasters occurred frequently and are large and powerful unlike in the past, due to global climate change and urbanization, population density, etc. For this reason, national interest is growing to natural disaster prevention and reduce natural disaster damage. Also there are increasing demands for improvement to Government policies on natural disaster management system and legal system. It is necessary to reinforce prevention activities for natural disasters prevention and mitigation damage of natural disasters. In this paper, review natural disaster management system of the United States, Japan, and korea, analyze to scientific system construction of natural disaster management and technology research and development reduction to natural disaster damage.
  • 23.

    Economic Administrative Law in Korea - Economic Policy and Governmental Intervention Method -

    BAE, BYUNG HO | 2012, 58() | pp.527~558 | number of Cited : 1
    Abstract
    The economic order of state has changed since the dawn of history. Economic Administrative Law was estimated as regulative administrative law at one time. The side effect of regulative administration happened, Deregulation was emphasized. Problems of Neoliberalism has appeared, the function of economic administration has reemphasized. Economic Administrative Law of the concreted constitution has direction to the whole national economy and social justice. State has aimed at supplementation of market failure and a balanced development of national economic, so Economic Administrative Law should positively achieve those goals. Financial or security business that was subsidiary affair has now leaded object-economy and the effect has spread worldly, the public law study of those subject is required. Concerning of Global financial crisis from U.S.A., foreign Economic Administrative Law books were much supplemented that point. As World Market and transnational enterprise have prevailed nowadays, our perspective of Economic Administrative Law should changed. Globalization, Information and free movement should be allowed, so the setting and implement of Economic Administrative Policy must be studied. The promotion of public good of human beings and the economic administrative goal of state should be studied. It is very difficult to understand complex administrative legislations because of the widening and specialization of economic administrative object. In Law school the study and training of Economic Administrative Law should strength students to work as governmental or local public service employee.
  • 24.

    Eine Studie über die rechtliche Vereinheitlichung in EU

    Shin, Okju | 2012, 58() | pp.559~586 | number of Cited : 4
    Abstract
    Die rechtliche Vereinheitlichung innerhalb der EU-Mitgliedstaaten enrwickelt sich weiter auch nach dem AEUV 2009. Beobachtet man den Prozess der Vereinheitlichung hinsichtlich der Umsetzung der Richtlinien, erkennt man klar, dass für sie die Zusammenarbeit mit Gesetzgebung, Verwaltung, und Gerichthof benötigt. Zuerst wird eine Richtlinie erlassen, danach wird ihre Umsetzung durch EU-Kommission kontrolliert. Der Europäische Gerichthof verfestigt den Inhalt der Richtlinie und erweitert den Anwendungsbeich. Seit 2000 erlassen EU viele Anti-Diskriminierungsrichtlinien wie RL 2000/43/EG, RL 2000/78/EG, RL 2000/43/EG, RL 2006/54/EG. Die Mitgliedstaaten setzen sie in geeigneter Form um. Beispielsweise hat Frankreich anstatt der Erlassung von Gesetz oder Verordnung in eixistierenden Gesetze fassende antidiskriminierende Bestimmungen eingesetzt. Deutschland setzte mit dem AGG die vier Anti-Diskriminierungsrichtlinien um. England hat nach dem Diskriminierungsbereichen einzelnes Gesetz erlassen. Um zu Vermeiden der Nicht-Umsetzung und fehlerhafter Umsetzung können die Mitteln wie direkte Anwendung der Richtlinie, Vertragsveletzungsverfahren, Beschwerdeführen der EU-Bürger bei EU-Kommission in Anspruch genommen werden. Der Europäische Gerichthof spielt auch eine grosse Rolle für die rechtliche Vereinheitlichung. Seine Urteilen nahmen Einfluss auf die Erlasung der neuen Anti-Diskriminierungsrichtlinien. Im Fall bezüglich der Rente mit 60 beim Lufthansa-Piloten erklärte der Gerichthof, dass solche frühzeitige Rente eine Diskriminierung aufgrund des Alters darstellte, die RL 2000/78/EG verbietet. Im Fall Unternehmer Feryn NV, der öffentlich den Ausschluss von ausländischen Arbeitern bei neuer Beschäftigung geäussert hatte, hatte der Gerichthof die Verletzung RL 2000/78/EG anerkannt. Im Fall Fr. Coleman erkannte der Gerichthof die Diskriminierung aufgrund der Behinderung an, obwohl sie selbst keine Behinderte ist. Sie hat ein behindertes Kind, das besondere und spezielle Pflege braucht. Sie hat zwar mit ‘Voluntary redundancy’ vereinbart, aber behauptet, dass sie vom Arbeitgeber dazu gezwungen ist.