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2012, Vol.59, No.

  • 1.

    A Land Use System in the Republic of the Union of Myanmar - Concentrated on Lease and Use of Land by Foreigners -

    Jeonghun Park | 2012, 59() | pp.1~26 | number of Cited : 3
    Abstract
    The gross area of the territory in the Republic of the Union of Myanmar (hereinafter referred to as Myanmar) three times as broad as one of the Republic of Korea. Myanmar has plentiful natural resources such as oil, timber and etc. Myanmar had been a politically, economically closed and outdated and it was the most have-not in the Asia. However, Myanmar has been in the process of the transfer of power from a military administration to civil government since President Tehin Sein had launched in March, 2011. Myanmar opens the door in the economic field and it liberalizes the economy at the same time. The change in recent years in Myanmar made the US, EU and neighbor countries such as China, India, Japan and South Korea consider the expansion of economic investment and interchanges. This thesis plays a role to inform the land use systems as the most advanced information of investment our companies to enter into variety of industries in Myanmar, noticing the political and economic mutation of Myanmar. According to the constitution of Myanmar, the state owns the land except freehold land which private persons can own. The only way for foreigners to use land is to lease the land with the fee. There have been several changes to relax restrictions on the land use by the open policy in the economic field: Notification No. 39/2011 based on the Transfer of Immovable Property Restriction Act of 1988 to support the Foreign Investment Law of 1987; Notification No. 40/2011 based on the government code of Myanmar; Special Economic Zone Law of 2011; and the Dawei Special Economic Zone Law of 2011. In detail, a foreign investment corporation with the permission of the Myanmar Investment Commission (hereinafter referred to as MIC) can lease the land for up to sixty years. Besides, Myanmar guarantees for a foreign company to use the leased land for up to seventy five years under the permission of the central body in the special economic zone which Special Economic Zone Law and the Dawei Special Economic Zone Law have designated. However, any lease on the farming land with other than purpose of cultivation would be invalid. While Myanmar has tried to ease restrictions with Notification No. 40/2011, investment in Myanmar still needs caution since remittance abroad of the profits by the sale of goods is practically difficult. In conclusion, research on the land use system, the Foreign Investment Laws and other related laws of Myanmar helps South Korea develop the industry of imports and exports. Even though Myanmar is the nation of the stage of the politically immature and economically commencement, Myanmar has ample natural resources, superior human resources, low labor cost and so on. Thus, export and import industry in South Korea should consider pros and cons on the investment in Myanmar.
  • 2.

    An Analysis on the Selling Scheme of the Public Renatal Housing - Focusing on the Changing Process of the Renatal Housing Law -

    Sunbae Lee | Jae Kwang Kim | 2012, 59() | pp.27~60 | number of Cited : 8
    Abstract
    According to the study on legal history of Rental Housing Act relevant to lotting-transfer system over public rental house, the frame provisions of construction costs and lotting-transfer price have not been amended since that had enacted. Though the Rental Housing Act has amended in many forms several times, a key part of lotting-transfer system, sharply conflicting interests both the tenant and the landlord, that is ‘Annex 1’ Rental Housing Act enforcement rules, has not revised to meet the request of times. From this perspective, the revision of the Rental Housing Act means the task of replacing its cover. Housing rental businessman to lease public rental house has been under the obligation to report the terms of lease(a term of lease, security deposit, rent, estimated base for time and cost of lotting-transfer) within 10 days prior to the lease opening.Not having applicable rules specifically on the day of moving-in, which could calculate housing price by estimated construction cost after building houses actually, economic burden of tenants cannot help increasing as they usually calculate rental price and lotting-transfer price on the basis of housing price assessed at the time of first tenants notice - standard construction cost. In spite of tenant's win against case of restitution of unjust enrichment at the court, relevant provisions on it has not been revised at all. And lotting-transfer price of rental house publicly constructed on the lease obligation period of 10 years does not have not only an upper limit to the conversion price of the sale but also calculated standard. Calculated standard of lotting-transfer price should be prepared until the beginning of 2019, which shall begin to converse the rental house for sale. Otherwise, conflicts of interest between a tenant and a landlord has been expected already, and it is obvious to cause enormous social costs. Calculated standard of lotting-transfer price under ‘Annex I’ of Rental Housing Act enforcement rules is too fragile to adjust and manage interest conflicts between a tenant and a landlord too old. There is no regulation to ensure investment profits for lease businessmen in the Rental Housing Act clearly. Standards ensuring profits for lease businessmen and being related to tenants' burden, that is to say calculated housing price appling to moving-in price and lotting-transfer price doing to conversion for sale, is necessary to be amended and improved not to abuse in great detail. The frame of lotting-transfer system established 15 years ago has limits reflecting a new request at the time. The system of lotting-transfer should be changed to meet the national policy including great purpose solving the problem of polarizing income. And the financial support of the low interest rates or National Housing Fund should be required to use practically, as many as homeless tenants can buy lotting-transfer house.
  • 3.

    Model legislation for the creation of social infrastructure based on National Land Development Act - Focusing on exploring the premise for building model legislation -

    Yooncheol Choi | 2012, 59() | pp.61~80 | number of Cited : 0
    Abstract
    After being registered in the member countries of the OECD, a member of the Development Assistance Committee (DAC), South Korea, the responsibilities and obligations bear the contributions in amount of contributions received by the international community always prepared to make Korea. To improve the well-being and economic development of developing countries, while providing the resources to international organizations, while maintaining a relationship of mutual cooperation with the country, South Korea, we need to work with the ODA by the scheme (ODA). ODA refers to the type of cooperation more than the simple support and financial assistance of the material that has been done in the past. Public support for these methods are legal area. Apart from the fact that teach both the volume and the import country when you factor in professional or legal system of a country can be divided will be sought. It is necessary to search for a meta-elements, despite their own specific characteristics of the country, it is possible to include all of them. You will be able to points of contact with the reality of their own culture and society of the state law attempts to find coefficients by a meta element factor. A similar pattern appears also taught in the courts of the country. Understood against the total number of course, the reality of the law and the law of the land, it is possible to take the country without difficulty if you teach in other countries across the legal system of the country want to be the meta-elements must be established. Need to develop orchestration of the country's exports, is something that should be considered first, and to promote the real situation of the country, and the like to formulate a development plan, tried. The standpoint of the law of the importing country, and this is the basis of the legal system of the advanced incomes who are trying to maximize the effectiveness of the development to try at the same time minimizing trial and error through the legal system to prepare the country. Therefore, not only the legal system of the country in which you try to accept the background of the regulation, the rule of law is, of course, in the case of the importing country, there is also a lot of interest and impact. So many, even if the country you are trying to export the law, it can not help you meet these requirements of the importing country. Instead of transmitting only the content of the law simply (brought cost, effectiveness, side effects and effects in combination) from the stage of the need for legislation by the law organizing and different results, which were published as part of the implementation of the legislative process, the law.
  • 4.

    Taking and Regulation in the U.S. Constitution

    Chung, Nam-Chul | 2012, 59() | pp.81~110 | number of Cited : 7
    Abstract
    Nowadays still, there remain unsolved difficult problems in terms of the theory of takings despite of remarkable achievement in legal theory of academy and judicial precedents of the Constitutional Court and the Supreme Court of Korea. For example there are the legal problems, such as distinguishing compensable eminent domain from uncompensated police power, the interpretation of “limitation” and “use” of private property for public necessity in Article 23 III of the Korean Constitution, the estimation of public interest (“public necessity”), the expansion of compensation and so on. First of all diverse takings exist in decisions of the U.S. Supreme Court. In my opinion the Regulatory Taking can be related to the “limitation” of private property for public necessity, and Temporary Taking and Partial Taking are related to the “use” of private property for public necessity according to Article 23 III of the Korean Constitution. In addition, a variety of test standards, such as physical invasion, diminution of value, and noxious use etc in the decisions of U.S. Supreme Court, concerning the distinction between compensable eminent domain and uncompensated regulation. However, it depends on the ad hoc balancing and discretion of courts in deciding what is taking or too regulation, especially after acknowledgment of the Regulatory Taking that is introduced for expansion of compensation. It seems to be the debate on the test standard “special sacrifice” (“Sonderopfer” in German) for just compensation in Korea. The U.S. Supreme Court has broadly the concept of “public use”, even in eminent domain for private person (private corporation) like in Kelo v. City of New London. This decision became controversial and was criticized. In conclusion the theory of taking (eminent domain) in the U.S. give us inspiringly new solutions, relating to the interpretation of our Constitution.
  • 5.

    Urban Development Projects through the Advanced Provision of Raw Land

    Kim,Jong Ha | 2012, 59() | pp.111~136 | number of Cited : 2
    Abstract
    Advanced provision of raw land was introduced for nature-friendly urban development. However, in the process of operating the system, it is being transformed into a private investment facilitator. Although attracting private creativity and investment into urban development is agreeable in principle, an institutionalized complementary device that can secure the public interest of the relevant project is required. Accordingly, this study looks into the original intent of raw land development by reviewing how the system of advanced provision and development of law land was introduced, and compares and investigates relevant regulations and cases of advanced provision of raw land that are currently stipulated in each individual law. Based on this investigation, the study presents the problems of advanced provision of raw land and first-priority tasks. First, the definition, purpose, and provision procedures of the advanced provision of raw land should be clearly stipulated in relevant laws. In addition, relevant projects must undergo a deliberation procedure confirming the necessity of advanced provision of raw land. Second, Each relevant law should propose the upper limit of scale that can be provided as raw land. Third, along with the arrangement of an institutionalized device that assures the continuity of the purpose of raw land development, a device for the restitution of development gain must be arranged simultaneously. In addition, when excess development gain is generated, measures are required to use such gains towards facilitating infrastructure in the relevant area. Fourth, estimation standard for the provision price of raw lands must be stipulated in relevant laws, and the method of estimation must be specified in detail in enforcement ordinance. Even though discretion of project implementers is acknowledged to some extent, it is necessary to stipulate the standard and method of estimating the provision price of raw lands in relevant laws and enforcement ordinance. Fifth, disciplinary measures must be stipulated with respect to cases of raw land developers neglecting their duties. In addition, legal grounds to claim compensation for damages in case of need should must be stipulated so as to prevent occurrences of developers merely enjoying their rights and neglecting their obligations. By resolving the aforementioned first-priority tasks, institutional base must be constructed in order to accomplish the original purpose of the advanced provision of raw land, that is the pursuit of public interest, while preventing the misuse of the system as means of revenue generation for private companies or developers.
  • 6.

    Study the Real Condition and Improvement of the Bankroll to Old Built-up Area Redevelopment

    조필규 | 김은유 | 2012, 59() | pp.137~160 | number of Cited : 3
    Abstract
    Recently, the skepticism toward the Redevelopment of The Old Built-up Area keeps spreading. It results from the delay of business due to difficulty in finances coverd with governmental support and local governmental support. It is owing to lack of various advanced method of financial support to the Redevelopment and therefore more specific study and careful investigation is required. This study draws some implications by analysis of the real condition and limitation of the bankroll to The Old Built-up Area Redevelopment in domestic and foreign examples. First, to expand the bankroll, we needs more various method of funding besides subsidy or government funds. Second, according to the specific method of bankroll we have to manage the procedure and the process transparently. Third, it is necessary to set a objective in advance and to evaluate in conclusion for the bankroll to the Redevelopment. etc.
  • 7.

    A Study on The Problems of Land Donation in The Housing Reconstruction - Focused on The Apartment Housing Reconstruction in Seoul Metropolitan City -

    조기태 | Kim, Cheol-Hong | 2012, 59() | pp.161~184 | number of Cited : 3
    Abstract
    Land Donation is an essential part in the process for the Urban Redevelopment in Korea. In this study, I have studied and analyzed the problems of the Land Donation in the field of the Housing Reconstruction among the Urban Redevelopment in Seoul. Land Donation, which is already implemented by the policy or guidance of a local government regardless of having imprecise legal basis, is said to be above the law. It only conciliate the illegality and civil unrest with incentives to relax restrictions on the floor area ratio. However, an excessive demand on Land Donation is not only the financial burdens in the Housing Reconstruction, but also disrupt resettlement of original resident because of the overburden to the members of the union. Land Donation, being used like a double-edged sword as regulation and dispensation by administrative agency, should make legal basis clear and utilize an administrative measure for citizens from a tax-paying citizen's perspective. And the central government should set clear criteria for the law of Land Donation to control the arbitrary regulation acts by a local government head.
  • 8.

    Study on The Constitutional Violation of Cost Opening of Private-Built Houses

    Jeong Hoe Gun | 송현담 | 2012, 59() | pp.185~202 | number of Cited : 0
    Abstract
    In accordance with Article 23 and Article 119 of the Korean Constitution, it is declared that private property and private autonomy should be assured, and individuals and enterprises' economic freedom and creativity should be respected on the basis of free-market economic order. Besides, Article 15 assures the freedom of career choice including the freedom of career decision and the freedom of career performance as well as the freedom of business in a broad sense. According to the present Housing Act, it is compulsory to open even the parcel cost of apartment houses. The original purpose of this institution is to promote stability on the housing market by preventing homeless citizens from suffering financial damages and a wave of speculation caused by construction companies' excessive pricing. However, many questions have arisen about the effectiveness of this institution, especially whether opening the parcel price or parcel cost of houses, not market prices. Although construction companies' cost opening may not have direct effect on restricting the parcel price itself, it will have indirect effect on the pricing through a psychological pressure that they would be the target of public opinion. In this light, this institution not only limits construction companies' freedom of price decision, but constricts the construction industry, and another issue is that the parcel cost even includes a construction company's confidential business information used to maximize profits with the least expense. The cost opening institution for privately-built houses can be approved in terms of the legitimacy of its legislative purpose, but it doesn't seem to satisfy every requirements, such as the appropriacy of means, the balance of benefit and protection of the law and the minimization of damages, and is likely to violate the constitution by infringing the principle of proportionality (the principle of anti-overrestriction). In accordance with Section 1 and 2 of Article 119 in the constitution, it is ordered that the state consider the respect of economic freedom and creativity and the economic regulation and arbitration at the same time. Accordingly, taking such super-strong regulatory measures, called ‘Cost Opening of Privately-built Houses’ is judged inappropriate even from the standpoint of Article 119. Cost opening is not only unprecedented in the history of Korean economic legislation, but no one has adopted such an institution out of all the countries sustaining the capitalistic market-economy order. Therefore, in any other markets with the characteristics of public goods in addition to the housing market, such an institution cannot help being introduced and allowed for the normalization of markets. Eventually, introducing such a cost opening institution even into the sector of privately-built houses has high probability to excessively infringe the freedom of career performance, further violating the constitution. Moreover, due to the social binding of land property rights reinforced for publicly-built and privately-built houses, it is a consitutional demand to strengthen the security of private property system much more. Nevertheless, even into the sector of privately-built houses, whose legal structure is definitely different from that of publicly-built houses, introducing the cost opening institution is highly likely to violate basic legal rights. Overall, unlike that of publicly-built house construction, the sector of privately-built house construction is a domain where is mostly governed by high-degree principles of the market economy. Thus, forcing construction companies to open their parcel costs, which correspond to their confidential business information, through acts is likely to violate the constitution while infringing the principle of proportionality (the principle of anti-overrestriction), contrary to the realization of public interests through various real-estate policies and taxation policies. Therefore, it is required to take prompt legislative improvement measures likely to abolish this institution.
  • 9.

    Legal Issues on the levying the development impact fee for public facilities

    김동건 | 2012, 59() | pp.203~220 | number of Cited : 2
    Abstract
    The development impact fee for public facilities is the system of levying the cost for that on those who caused the such construction. That means establishment expenses of such public facilities as road, school, park and water supply facilities should be paid by those who want to constuct or reconstrut the houses in that place. This system was made for realize the social impartiality. But the leving power is trusted to local autonomies and the local autonomies made municipal ordinance for that. However. this ordinance has lots of problems, This paper is to find out the issues of the problems by investigating the judicial cases and recommend the solutions.
  • 10.

    The scope and limitations of the designator's discretion in designating semi-industrial complex.

    황해봉 | 2012, 59() | pp.221~244 | number of Cited : 3
    Abstract
    In designation of semi-industrial complex are examined the legal nature of designation and the scope and limitations of the discretion, by analyzing specific individual requirements of designation, the improvement plan of semi-industrial complex, development instructions of industrial complex. The designation of semi-industrial complex by private request which is accompanied by the improvement plan of semi-industrial complex, is a material general disposal. Accordingly local autonomous entities have a lot of discretion, in disposing it. But considering the purpose of 「the law on locations suitable for industrial use and its development」which promote and induce the development of locations suitable for industrial use, they have to designate semi-industrial complex, so long as such designations aren't against related laws and regulations, locations guidelines, etc. On the other hand, we need to review the legislative level to plan and support designations of semi-industrial complex which are essential to improve existing plants in dense regions by local autonomous entities. And such as reconstruction and redevelopment of apartments etc., we need to review the legislative level to have detailed and specific standards and procedures on the improvement plan in semi-industrial complex. With it the uncleanness of legal interpretation due to applying the provisions of industrial complexes can be solved.
  • 11.

    Study on Protection of Foreigners in Immigration Control Law

    lee jae sam | 2012, 59() | pp.245~284 | number of Cited : 10
    Abstract
    With the recent increase in people who enter this country, the protection of foreigners are being pointed as legal problems on foreigners defined by Immigration Control Law. The following measures should be promptly taken for improvement. First, it is essential to protect foreigners who are subjects of compulsory expulsion in order for the government to execute compulsory expulsion order. Especially, temporary removal of protection policy should be actively applied to foreigners in long-term protection. In other words, in case foreigners should be protected for a certain period of time, protection should be actively removed according to their personal opinions with conditions such as limits on residence, and a way to reinforce the investigation on trend can be presented. For such execution, supplementary measures such as 20 million Won deposit policy, guarantee policy, and restriction of temporary removal in case of missing after protection removal are required. And foreigner protection may be considered administrative immediate compulsion in non-punitive characteristic, and, especially, foreigner protection has a characteristic of sanction of punishment although it does not have a characteristic of urgency or imposition of obligation. Also, since the period may continue for more than 2 months, certain legal standards on assurance of human rights of protected foreigners are necessary. However, if accommodated foreigners violate the safe or order of the protection facility by running awayㆍriotㆍassault or damaging facility or items and they do not follow fair order or performance of duties of officials by bringing prohibited materials into the facility and trying suicide, stronger sanctions using devices such as handcuffs will be required other than isolated protection. And foreigners who are subject to compulsive removal order desire to depart the country with his or her own expenses, departure order can be issued. In other words, in principle, those who are subject to compulsive removal order should pay for their own expenses, and, for those without money, the national expenses are used to execute compulsive removal. It is inappropriate to use national budget that is the result of taxes from citizens to pay for the cost that is spent for them to return to their countries. Especially, when accommodated foreigners intentionally waste or consume all the returning cost and do not compensate for the damage that they have caused on the facilities, the government should keep the accommodated foreigners' cash to use it when necessary and to compensate for any damage caused on facilitiesㆍitems of the protection facility. It is recommendable to establish regulations on compulsive seizureㆍexecution on accommodated foreigners. Uultimately the recent increase in the number of illegal immigrants and foreigners who violate the law, it is recommendable to strictly execute the law on foreigners for the national benefit. Strict execution of law on foreigners is recommendable for establishing national legal order and prevention of foreign crimes. Although the government should strictly execute the law, the balance and harmony of law and operation should be maintained so that basic rights of foreigners are not violated. Thus, fundamental improvement on the law is demanded.
  • 12.

    A Study on Legal Control of Local Fiscal Crisis

    Jae-Ho Kim | 2012, 59() | pp.285~310 | number of Cited : 11
    Abstract
    The Article examines the causes of local fiscal crises and explores the solutions to prevent or deal with them properly from the perspectives of the structural and operational aspects of local administration. In order to maintain the local fiscal integrity, it is very important to secure financial autonomy and grants from the central government. There are many ways of obtaining this goal. First, localities should be given the power to tax based upon ordinances. Second, it should considered to raise the ratio of local consumption tax from 5% to 10%. The first and second solutions contribute to broadening the tax base of the local governments. In addition, it is desirable that the expense of social welfare services come from the purse of the central government, and that block grants, rather than matching funds or conditional grants, be more regular. Third, the central government should refrain from transferring its powers to localities on a broad scale. Fourth, popular control on the expenditures of mayors or governments, through the local assembly or by the residents, must be more utilized and vitalized under the Local Autonomy Law. The third and fourth solutions address the operational aspects of local administration. Furthermore, the central government can control the finances of the local governments by introducing a local fiscal crisis pre-warning system. Under this kind of system, the locality under financial stress is required to establish and implement a plan to secure fiscal integrity within the time period prescribed in exchange for support and supervision from the central government. Finally, the Bankruptcy Law must be revised to allow it to apply to the local governments, in order to deal with the case of a financial crisis and protect the creditors and residents.
  • 13.

    A study on the legal improvement of National Police Commission

    Won Jung Kim | 2012, 59() | pp.311~336 | number of Cited : 6
    Abstract
    Police administrative agency is in charge of police administration and police commission plays roles of management and supervision. The two should be reestablished so that the government could make sure social security and democratic law-enforcement of the police. In particular, the police commission ought to devote to its functions which are to assure a safe society through effective working and overseeing, rather than only staying in its role of consulting. In order to do so, it is needed to have its legal position. If the commission has its legal statue and carries its operations faithfully, it can attain its responsibility and concentration on its works as well as a political neutral. To achieve the purpose and fundamental ideas that police law pursues, current police commission should be transformed to the one with representative system. In addition, it should stipulate specific and clear contents about composition of its organization in law on the principle that an organization should be fixed by law. Futhermore, it is needed for the police commission to have a right to check and supervise general works that the police administrative agency performs. The police commission could have its political neutral and democracy, which police law follows, only when it exercises its right to oversee the police administrative agency. Therefore, to be suit for the goal of police law, it should be rebuild for the police commission to have practical powers by improving present problems.
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  • 17.

    Verfassungsrechtliche Grundlagen und Grenzen der Schutzgesetze für kleine Handelsgeschäfte

    Sung-Soo Kim | 2012, 59() | pp.387~406 | number of Cited : 0
    Abstract
    Mit einer ehrgeizigen Mission des Staates nach VIEG und NEG ist metaphorisch die berühmte Aufgabe von Herkules zu vergleichen. Zwangsläufig kommt einem die bekannte griechische Sage von dem Ausmisten der seit vielen Jahren nicht gesäuberten Ställe des Augias in den Sinn. Herkules löste die ihm aufgetragene Aufgabe auf einfache Weise. Er flutete die Stallungen und ließ den Mist wegspülen. Mit einem derart schlichten und gleichermaßen wirksamen Patentkonzept könnte selbst Herkules die Wettbewerbsproblematik des Wirtschaftsverwaltungsrechts in Korea nicht therapieren. Mit der Arbeitsweise von Herkules könnte ein freier Markt auf einen Schlag verschwinden, so dass die kleinen und großen Marktteilnehmer gleichzeitig ohne ihren schützenden Stall ertränken.
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  • 20.

    Entwicklungen des kommunalen Unternehmensrechts in Korea

    Song Dongsoo | 2012, 59() | pp.477~490 | number of Cited : 0
    Abstract
    Nach der Angabe des Innenministeriums gibt es in Korea landesweit insgesammt 373 kommunale Unternehmen in 2011. Sie werden ausschließlich oder zumindest mehr- heitlich unmittelbar oder mittelbar durch die Kommunen gehalten. Trotz der Vielfalt der Erscheinungen gibt es keine gemeinsame Vorstellung über die Führung dieser ausgegliederten Aufgaben in den kommunalen Unternehmen. Nicht verschwiegen werden darf allerdings auch, dass in Korea die Verschuldung kommunaler Unternehmen insgesamt höher ist als die Eigenkapital. In Korea ist 2011 zu verzeichnen, dass 183 kommunale Unternehmen mit Defizit arbeiten (50%). Die Gründe für die finanziellen Schieflagen sind vielfältigster Natur. Zu den Gründen gehören etwa Managementfehler, die Anwendung von noch nicht markttauglichen Technologien, demografische Entwicklung und daraus resultierende mangelnde Nach- frage, Baumängel oder fehlerhafte Finanz- und Kreditüberwachung.
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    Eine kritische Betrachtung über die Rekommunalisierung privatisierter Leistungen in der Republik Korea - einschließlich rechtsvergleichenden Bewertungen mit dem deutschen Recht -

    Kil Joon Kyu | 2012, 59() | pp.503~522 | number of Cited : 0
    Abstract
    최근 글로벌 금융위기에 따른 시장실패에 따라 독일에서는 민영화된 지방공기업이 주민에 대한 생존배려 기능을 다하지 못하는 문제가 발생하면서 민영화되었던 공공재공급을 다시 지방자치단체가 운영하고자 하는 ‘재지방화’라는 종래의 민영화에서의 패러다임 변경이 주장되고 있다. 다만, 우리나라는 소수를 제외하고는 지방공기업이 민영화된 예가 없고, 공기업의 발달단계상 아직도 완전한 민영화의 단계에는 이르지 못하여 다수의 국영공기업이 존재한다. 그러나 독일도 민간투자사업을 민영화의 범주에 넣어 고려하고 있으므로 우리나라도 같은 맥락에서 재지방화 현상을 중심으로 공기업을 둘러싼 양국의 법리와 현황을 비교하는 비교법학적 연구를 시행하였다. 특히 최근의 재지방화현상은 글로벌한 금융위기에 따른 경제위기에 대응하는 현상이라는 점과 이에 따른 시장실패에 대한 국가의 확대라는 점을 분명히 밝혔다. 아울러 재지방화의 개념과 요건을 밝히고, 공기업의 발달단계에 비추어 한국의 상황과 우리 지방공기업법의 현황에 대하여 비교하였다. 그리고 재지방화의 한계로서 생존배려가 ‘국가의 필수적인 의무’인가, 재지방화가 ‘민영화의 대안’으로 자리매김할 것인가의 문제와 지방공기업에 대한 법적 근거가 엄격하지 않으므로 이는 재지방화에도 같은 논거와 같은 규범으로 기능한다는 점, 그리고 지방자치단체의 조직권한에 재지방화여부가 달려 있다는 점, 마지막으로 민간투자사업과의 관련성을 설명하였다. 그리고 결론으로는 한국에서도 민간투자사업의 문제로 재지방화의 논거가 여전히 유효하지만, 그렇다고 현행 민간투자사업을 지방자치단체 스스로가 수행할 수는 없다는 점을 밝혔다.
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    Rechtsschutz gegen wirtschaftliche Betätigung der kommunalen Selbstverwaltungskörperschaften in Korea

    KANG, HYUN HO | 2012, 59() | pp.537~560 | number of Cited : 0
    Abstract
    Das Problem des Rechtsschutzes gegen die wirtschaftliche Betätigung der SVK unter den Thmen von Rechtsschutz der kommunale Einewohner, Rechtsschutz der Bürger als Konkurrenter und Rechtsschutz der allgemeinen Bürger ist betrachtet. Der Rechtsschutz der kommunalen Einwohner kann zuerst durch verschiedene rechtliche Instrumente verfolgt werden, die im koreanischen Selbstverwaltungsgesetz geregelt sind, und die Bürger als Konkurrenter zu den öffentlichen kommunalen Unternehmen(kU) können den Weg des Rechtsschutzes zwischen dem öffentlichen Verwaltungsgerichtsweg und dem zivilen Gerichtsweg wählen. In der gerichtlichen Rechtsbehelfe ist die Öffnung des Gerichtsweges vom drittschützenden Charaker der betroffenen Rechtsnormen abhängig, die die Eingriffe basieren. Diesbezüglich kann m.E. der drittschützende Charakter vor allem aus § 3 Abs. 2 GkU hergeleitet werden. Nach der Erfüllung der Klagebefugnis des Gerichtsweges liegt das erste Interesse für die konkurrierenden Bürger in der Möglichkeit des Unterlassungsanspruchs, um ihre Rechte gegen die Eingriffe der kU zu schützen. Jedoch gibt es keine konkreten Regelungen in der koreanischen gesetzlichen Vorschriften, die den Unterlassungsanspruch begründen, und auch es fiel diesbezüglich bis jetzt noch kein Urteil, darum ist eine empirische Untersuchung in Bezug auf die Berufsfreiheit und Eigentumsgarantie der koreanischen Verfassung durchgeführt. Dazu sind einige koreanische Gesetze einschließlich GMRFH, GkU mit einbezogen, um die Möglichkeit der Unlassungsansprüche zu untersuchen. Zum Schluß ist der Rechtsschutz von den allgemeinden Bürger betrachtet und in diesem Fall können die allgemeinden Bürger ggf. gegen die SVK, die kU oder gegen die Angestellten einen Schadensersatzanspruch erheben.
  • 25.

    Rechte des Datensubjekts im Datenschutzgesetz - Rechte des Datensubjekts im Bundesdatenschutzgesetz und deren Inhalt-

    Kim, Bong-Cheol | 2012, 59() | pp.561~582 | number of Cited : 8
    Abstract
    Um den persönlichen Datenschutz und das Recht auf informationelle Selbstbestimmung des Datensubjekts in der Informationsgesellschaft zu gewährleisten, tritt das koreanische Datenschutzgesetz am 29. 3. 2011 in Kraft. Im Vergleich zu bisherigen Datenschutzgesetze gewährleistet das Gesetz die Rechte des Datensubjekts erweitert und verstärkt. Bei der Gesetzgebung des Datenschutzgesetzes hat der Gesetzgeber jedoch nur das Dateneinsichtsrecht, das Recht auf Datenberichtigung, Datenlöschen, Datenverarbeitungverbot sowie Datenvernichtung beschränkt vorgeschrieben. Demgegenüber regelt das deutsche Bundesdatenschutzgesetz hinsichtlich des öffentlichen Bereichs das Recht auf Datenauskunft, das Recht auf Mitteilungsannahme bezüglich der Datenerhebung, Datenverarbeitung, Datennutzung sowie Datenübermittelung, das Recht auf Datenberichtigung, Datenlöschen sowie Datensperrung, das Widerspruchsrecht auf Datenerhebung, Datenverarbeitung, Datennutzung sowie Datenübermittelung und das Anrufungsrecht bei Bundesbeauftragten für den Datenschutz. Ferner regelt dieses Gesetz hinsichtlich des privatlichen Bereichs das Recht auf Datenauskunft, das Recht auf Mitteilungsannahme bezüglich der Datenerhebung usw., das Recht auf Datenberichtigung, Datenlöschen sowie Datensperrung. Die Rechte des Datensubjekts sind die wesentlichen Rechte, die sich vom Recht auf informationelle Selbstbestimmung unmittelbar herleiten, und das finale Gesetzgebungsziel des Datenschutzgesetzes liegt darin, um die persönlichen Daten effektiv zu schutzen und mit der Erweiterung und Verstärkung der Rechte des Datensubjekts, um die Menschenwürde zu verwirklichen. Daher ist es erforderlich, wie deutsches Datenschutzgesetz das Recht auf Mitteilungsannahme bezüglich der Datenerhebung usw., das Recht auf Datensperrung und das Widerspruchsrecht auf Datenerhebung usw. ausdrücklich vorzuschreiben, um das Recht auf informationelle Selbstbestimmung des Datensubjekts zu erweitern und zu verstärken.
  • 26.

    The Unification of Korean Peninsula and the Direction of Interpretation about the Unification Clause in Constitution of Korea.

    Hwan Myoung Pyo | 2012, 59() | pp.583~604 | number of Cited : 2
    Abstract
    This paper investigates about what unification clause enacted in constitution of korea means and how it influences on unification and unification process, whether it is necessary to revise itself to resolve so many problems in process of unification and after unification of korea and if it is necessary to revise constitution, which direction it is advisable. Unification clause enacted in constitution is classified as the territory clause and peace unification clause. This paper presents the model to resolving both clauses by the method of interpretation toward unification which are the situation of collision in constituuion system. That is to say, this paper has resolved the problem of collision between territory clause and unification clause in viewpoint of the constitutional task to achieving unification of korea and protect liberal-democratical basic system, considering north-korea related to unification as a country. In addition to, this paper, about which unification clause influences on the process of unification and the unification country, presents the followings: first, it will become cornerstone to establishing the constitution of unification. second, it will become the fundamental base resolving the problem of anti-rule of law in area of north-korea after accomplishing unification of korea. In related to discussion about the revise of constitution this paper emphasizes that is necessary to add ‘join clause’, because unification clause provides just the method and fundamental oder required to achieve unification. In addition to, this paper presents that it is necessary to add potential validity clause to constitution of korea. It is necessary to resolve the problem of the nature of north-korea as the object of unification of korea.
  • 27.

    A Study on the Development Process of Broadcasting Communication Legal System

    Yongjeon Choi | 2012, 59() | pp.605~628 | number of Cited : 2
    Abstract
    With carrying voice on electrical communication, the telephone was invented. And thanks to advances in technology, such as Radio(wireless communication) and Mobile Telecommunication, we can enjoy Information and Communication Technology(ICT) today. The emergence of the field of information and communication technology was called as the history of technology convergence and the spotlight technology in the most recent is the fusion of broadcasting and ICT. Through the launch of the Korea Communications Commission(KCC) and the legislation of Framework Act on Broadcasting and Communications Development of 2010, the korean leading role of the ICT industry in global environment is pledged. But the sluggish news in the field of ICT was heard since the launch of the Korea Communications Commission, a sense of crisis which the current broadcast communication system can not proactively and aggressively response to changes in the IT environment and the need for development of fusion technology is common. Therefore, we may feel the need to seek the improved idea about the technology convergence and the central administrative agency. Therefore, in this paper, I look into development process of broadcasting communication legal system and historical changes of the central administrative agencies as a basic materials of such research, Exploring the changes of the laws and the government agencies of the U.S.A., the United Kingdom and Japan, I especially highlight Korea’s. Based on these studies I conclude that the new propulsion system of ICT policy and the legal definitions of various ICT term related to the Broadcast Communications Law are need.
  • 28.

    The Alaska Fishery Rights and the Takings Clause's Property

    JEONG, HA MYOUNG | 2012, 59() | pp.629~644 | number of Cited : 2
    Abstract
    In Vandevere v. Lloyd(644 F.3d 957 (9th Cir.)), the Ninth Circuit held that the fishermen's entry permits were not a property for purposes of takings claims. In Vandevere, the Ninth Circuit considered whether some of Alaska's regulations on commercial salmon fishing, which shortened fishing seasons, violated the Takings Clause. In 1996, the Alaska Commercial Fisheries Entry Commission began to enact regulations that drastically shortened the drift-gillnet season to run only from June 25 to August 9--shortening the season by seventy-five percent. Vandevere plaintiffs in Alaska's Upper Cook Inlet claimed that the regulations severely diminished the value of their entry permits by limiting the numbers of fishes they could catch and sell. The Ninth Circuit applied a Takings Clause analysis in which state law governs the demarcation of a property right, while federal law governs the manner in which the state must respect that right. Deferring entirely to the Alaska court's holding in a nearly identical case, the Ninth Circuit held that the fishermen's entry permits were not a property for purposes of a takings claim according to regulatory takings precedent.
  • 29.

    조세정책 환경변화에 따른 조세법의 제․개정에 관한 연구

    신평우 | 2012, 59() | pp.645~662 | number of Cited : 0
    Abstract
    조세법과 조세정책은 필수불가분의 관계에 있다. 다시 말하면 조세정책을 올바르게 실현하기 위해서는 조세법률주의와 조세공평주의에 입각한 법률의 제․개정을 통하여 이루어질 수 있는 것이다. 또한 그 시대 사회경제적 상황에 부합하는 조세정책을 수행하기 위해서는 조세법의 제정 또는 개정을 통하여 최대한 반영할 수 있어야 그 시대가 안고 있는 사회적․경제적 문제를 해결할 수 있다. 조세정책은 재정정책, 경제정책 이외에 산업정책,부동산정책, 고용정책, 사회정책 등에 대하여 큰 영향을 미치고 있고, 나아가 이들 정책의 실행수단으로서도 이용되고 있다. 특히 국민의 재산권과 밀접한 관련을 가진 정책인 조세정책은 그 정책이 일관되게 유지되면서 조세법의 입법원칙에 부합하도록 입법되어야만, 납세자인 국민은 자발적으로 자신의 납세의무를 부담하게 될 것이다. 정부의 조세정책을 유일하게 통제할 수 있는 국민의 대표기관이자 입법기관인 국회는 조세관련 정부입법안 또는 의원입법안이 제대로 정책일관성을 유지하고 있는지와 조세법의 기본원칙인 조세법률주의와 조세공평주의에 부합하는지를 면밀히 검토하여야 할 것이다. 나아가 정부의 조세정책과 상관없이 발의되는 의원입법안의 경우 국회는 그 정책이 정부의 정책에 어떠한 영향을 줄 것인지 등과 같은 타당성을 검토하여야 할 뿐만 아니라 조세법의 기본원칙에 위배되지 않는지를 세밀하게 검토하는 시스템을 갖추어야 할 것이다. 만일 조세정책이 그 입법과정에서 제대로 심의되지 못하고 조세법으로 입법된다면, 그 결과는 바로 납세의무자인 국민의 재산권 침해 또는 조세공평을 해치게 되어 사회적 문제로 나타나게 된다. 그러므로 조세정책이 국민의 재산권 침해를 최소화하고 조세공평을 유지하면서 제대로 실현되기 위해서는 그 정책의 타당성을 제대로 검증하는 작업이 필요하고, 그 작업이 바로 조세법의 제․개정시에 이루어지는 입법과정에서 심도 있게 논의되어야 한다는 점을 항상 염두에 두어야 할 것이다. 따라서 조세법과 조세정책은 필요불가분의 관계에 있다고 할 수 있다.
  • 30.

    A Study on the Principle of Substantial Taxation - Focusing on the Real Estate Tax Law -

    seon eun ae | 2012, 59() | pp.663~680 | number of Cited : 1
    Abstract
    Taxation in today plays an important role in satisfying its finances of the national and local governments. Taxation can be said to imply money that a country or the local government forcibly collects from people or residents in order to fulfill its financial demand. Taxation has the forcible nature of targeting nationals or residents. Thus, the levy and collection of taxation should be prescribed as a law. Its requirements and procedure need to be made strictly. Also, the taxation of targeting nationals or residents needs to be imposed equally without any controversy of equity in each individual. The taxation of real estate is largely divided into the acquisition tax on acquiring real estate, the registration & license tax on registry of real estate, the property tax, which needs to be paid due to holding real estate, the transfer income tax, which is levied on margin according to the transfer of such real estate, and finally the comprehensive real estate holding tax, which is imposed when the real estate possessed by one person is more than the certain amount. The taxation of real estate is again varied its tax payment obligor, taxability, tax assessment standard, and imputed time of taxability according to substance and formalism. In other words, out of the real estate taxation, the acquisition tax, property tax, transfer income tax, and comprehensive real estate holding tax are applied by the principle of substantial taxation. The registration & license tax is applied by the principle of formalism. According to the principle of substance, the acquisition tax, property tax, transfer income tax and comprehensive real estate holding tax are said to be levied on the substantial tax payment obligor, substantial taxability, substantial tax assessment standard, and substantial imputed time of taxability. This principle of substantial taxation has a problem as saying of being difficult to grasp the substantial tax payment obligor, taxability, tax assessment standard, and imputed time of taxability. Accordingly, to impose a tax based on the substantial tax payment obligor, taxability, tax assessment standard, and imputed time of taxability depending on this principle of substantial taxation, its ground and regulation are considered to be likely to be necessarily made explicit. Senior welfare facilities refer to establishments that are run by the national government, local governments or private organizations to improve the quality of life of the elderly and provide them with a wide variety of social welfare service. Our country's senior welfare law doesn't include any definition of senior welfare facilities, and the social welfare service act that is the parent law of social welfare service involving senior welfare service defines social welfare facilities as “facilities that are installed to perform social work.”There are neither established hiring regulations nor evaluation for employees of senior welfare facilities, which comes into question. Anybody who is certified just for form's sake can be hired, or each welfare center hires employees according to its own hiring specifications. Lately, the number of senior welfare centers is rapidly on the rise along with the growing elderly population, and there are various problems with the qualifications and qualities of their employees, which results in detracting from welfare service that must be provided for users. It denotes that the rights of users aren't properly be protected, and the matter of the qualifications and qualities of employees should consequently be taken seriously. In order to provide users with better service, there must be strict qualification requirements for employees. In terms of their qualities, not only those who have committed a sexual crime in social welfare centers but those who have done the same outside social welfare centers and who have infringed on elderly people's rights must not be allowed to get a position with those facilities as well. Thus, how to prevent the quality of service from declining should carefully be considered from diverse angles.