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2013, Vol.61, No.

  • 1.

    Real Estate Usage Fee System in North Korea and Implication

    허강무 | 2013, 61() | pp.1~22 | number of Cited : 3
    Abstract
    Since its adoption of the “July 1, 2002, Economic Management Reform Measure”, North Korea’s marketization process has been accelerated. In North Korea where all real estate is owned by the government, the sale or rent of real estate by or between individuals and groups is, in principle, not possible. However, the regime’s increasing inability to provide housing led to the significant growth in the size of the black market for real estate. As a result, during the 4th session of the 11th Supreme People’s Assembly which was held in April 2006, the state revealed its intent to conduct a campaign to assess real estate properties throughout the entire country and establish a system of rent after which “property usage fees” were included in the annual national budget. Furthermore, North Korea enacted a “Real Estate Management Law” in November 2009 as a measure to regulate real estate and expand its deteriorated budget. Consisting of six sub-sections and 47 articles, the “Real Estate Management Law” bans the sale, change of use and unauthorized rental of real estate and places an obligation to register and inspect real estate properties. At the same time, the law also allows the state to collect a “real estate usage fee”. It appears that the enactment of the “Real Estate Management Law” is aimed to provide a basis to actively collect real estate usage fees to salvage its chronic financial difficulties. Also, the enactment of the law can be interpreted as North Korea’s intent to strengthen the state’s control over the socialist economy and over the country by increasing regulation of “disorder in the market place” and improving productivity of its state-controlled companies and factories within North Korea. The purpose of this study is to examine the current conditions of the real estate transactions in North Korea and assessment of real estate usage fees, and introduce the changes to North Korean real estate policies and the legislative background and contents of the resulting “Real Estate Management Law”. Further, as North Korea implements the real estate usage fee system which is similar to South Korea’s property taxes, this study aims to derive the implications that it will have to issues regarding the administration of North Korean real estate after the unification of the two Koreas.
  • 2.

    A Possibility for Violation of Private Right due to An Urban Management Planning

    Jeong Hoe Gun | 2013, 61() | pp.23~38 | number of Cited : 3
    Abstract
    When we talk about urban․county management planning, we discuss how an administrative agency develops, restores and preserves jurisdictions of local governments. Once any relevant plans are determined and announced on the record, consequential restrictions on acts are conducted directly onto the people, and that could cause human rights violations. When any human rights violations are caused by the urbanㆍcounty management planning, interested victims are deserved to receive compensation and yet, with this current system, it is not easy for the victims to enjoy their right of this kind. In order to be saved by cancellation dispute and compensation in the current system, not only there should be a disposition by an administrative agency based on legislations, but also the disposition by the agency should be proved legal. However, since the urbanㆍcounty management planning would not be built up on legislations and again, since the planning is only a manual to suggest directions of a future administration to achieve administrative goals, it is difficult to accept that as a disposition. In addition, even though the disposition is recognized, since the planning depends on any acts or words by the administrative agency, it is also hard to see if it follows the law or not. Add to that, the urbanㆍcounty management planning is merely what the administrative agency does as it would never be influenced by the people, and that makes it hard again to determine the legality. Hence, with the current system, we are hardly compensated for rights violations caused by urbanㆍcounty management planning. However, even if that is true, we should not give up on the rights violation compensation. For that reason, it is definitely necessary for the government to accept the urbanㆍcounty management planning as a disposition while it determines any illegal dispositions so that the victims are well-treated by cancellation dispute or compensation. In addition, since the urbanㆍcounty management planning is an act that is achieved by agreements among relevant administrative agencies, advisory organs and opinions as well as proposals from the local, it needs to be determined legal so that the victims can receive loss compensation in case that their rights are restricted.
  • 3.

    A Study on the Compensation Standard for the Airspace

    LEE SANG HOON | 2013, 61() | pp.39~60 | number of Cited : 2
    Abstract
    As the use of electricity increases continuously with the development of industry and the acceleration of city, the construction for a power plant, an electric power substation, etc. has also increased, so the installation of a high-voltage transmission lines that connects the power plant to the consumer has become necessary. In the process of setting up the land under the lines, the problem has come up as the dispute arise between a land owner and an electric operator. The land under the lines that the high-voltage transmission line passes through in the air space mainly causes the marked reduction of land value which comes from the restriction on the construction act, the default caused by the setting up of divided superficies on a certified copy of the register, the application of the underestimated hindrance rate for the three dimensional use, the repulsion physically and psychologically affected by the high-voltage transmission line and the lose of expected future profit, etc. to the land owner or other surrounding area residents For the reduction factor of the land under the lines and its negative factors, I suggest the several measures such as complementing the three dimensional utilization with the additional correction rate, considering the fairness between the land under the lines and the excluded surrounding area close to the land under the lines, and solving the civil compliment through the resonable support project. Furthermore, I examine the appropriate measures to distribute the development interest by introducing the TDR in order to avoid the public law restricted on the air space and the demage from such restriction. Two ways promoted by Seoul city in the TDR are the combined development method which two areas develop together by giving and taking the floor area ratio and the transition-acquisition method which develops by selling and buying the TDR each other. Therefore, I here attempt to examine the appropriate compensation standard for the use of air space in several ways, so that I can propose some resonable methods on the compensation standard for the use of air space to reduce any demage caused by the land under the lines in this research.
  • 4.

    A Study on the Farmland Reverse Mortgage System

    Choi, In Ho | 2013, 61() | pp.61~82 | number of Cited : 3
    Abstract
    The purpose of this study is to find out the present states and problems of Farmland Reverse Mortgage System and to suggest improvements. As for research methods, a theory study and a case study were conducted at the same time. The theory study was conducted to investigate the contents of ‘Korea Rural Community Corporation and Farmland Management Fund Act’, and the case study was conducted to analyze the present states and financial poverty of old-aged farmers and farmland mortgage assessment methods to estimate farmland pension. The results of this analysis can be summarized as below:Firstly, the number of old-aged farmers is on an growing trend, further increasing their economic poverty. Secondly, in farmland mortgage assessment methods to estimate farmland pension, the difference between estimation through individually-announced public land price regulated by law and estimation through appraisal and assessment values is up to 50% on average all over the country. In conclusion, since farmland pension is real estate finance of reverse mortgage loan system that has a strong feature of social security for old-aged farmers, the related institutions for the estimation of farmland pension should be improved to estimate farmland pension with appraisal and assessment methods as equally as ordinary collateral assessment.
  • 5.

    Research on Urban Improvement Promotion - By evaluating the current urban redevelopment projects, in promotion of redevelopment / reconstruction upon inauguration of the new president -

    Pilkyu Cho | 2013, 61() | pp.83~106 | number of Cited : 6
    Abstract
    What is called Urban Improvement is meant to reorganize the inappropriate function of lands for ‘functional recovery’ and improve usage as socio-economic conditions vary, involving efforts from public and private sectors, as planned and regulated in Built Environment Renewal Development Act (hereinafter referrred to as ‘the Act’). In recovering the functions meant, Urban Improvement reorganizes and modifies infrastructure facilities and improves the existing housing and buildings or constructs newer ones within the project area. Each and every Improvement Project under the Act is performed in varied geographical area, but in much analogous processes and methodologies as mostly done as part of Housing Environment Improvement Project, Housing Redevelopment Project, Housing Reconstruction Project, etc. at where housing improvement is in dire need. From time to time there are some Urban Environment Improvement Projects planned, in promotion of land use with industrial and commercial efficiency and recovery of urban function meant. Behind what is meant for redevelopment and reconstruction of housing to improve urban and housing environments for sound urban development, welfare, and quality life of public, these developmental projects always lay the root of ‘Real Estate Speculation’ by those with future profit in mind. With the new government and president taking the helm under the slogan of 「Pleasant Public for the Era of Hope」, redevelopment and reconstruction projects should come into play with significance for promotion of Urban Improvement market and national economy itself. Supportive policies are thus strong in need. Hence, straight-forward and proper political goals and orientation are key to success of Urban Development Project. From such a perspective, this Research assumes the form of making a political suggestion for the new government in promotion of Urban Improvement Project.
  • 6.

    Legal analysis and implications for the natural disasters compensation system in the United States

    나채준 | 2013, 61() | pp.107~136 | number of Cited : 2
    Abstract
    Under the changing conditions of disaster including climate change, natural disasters such as earthquake and tsunami, floods and droughts, heat wave and heavy snow are everywhere and their frequency and intensity has grown substantially. Subsequent loss of human life, economic and material benefits is also increasing, making it a national issue beyond individual, regional level. Under the principle of welfare state, national or regional authorities are required to grant disaster relief for natural- disaster -incurred- damage and there are some implementations going on, however, they are not satisfactory due to insufficient amount of compensation and complicated administrative labyrinth. Therefore, it is required to complement relevant laws to make compensation and procedure more realistic. Natural disaster is a national issue beyond individual or regional level, and it requires a national approach to combat the situation. In particular, it is urgent to study the policy and legal framework of the U.S. that are suffering frequent natural disasters. In regard to the damage incurred by natural disasters, the Korean government is granting reconstruction relief for agricultural disasters in accordance with Framework Act on the Management of Disasters and Safety. In the mean time, there are laws in effect such as Act on the Prevention of and Countermeasures against Agricultural and Fisheries Disasters, Disaster Relief Act, Framework Act on Disaster Relief and Disaster Reconstruction Cost Support Criteria. However, many people point out the insufficiency of relief program claiming that it is unrealistic. From 2001 based on (old) crop disaster insurance law, the Korean government has been conducted the disaster insurance in limited extend in order to residents prepare increase disaster himselives. Storm and Flood Insurance Act enacted to compensation for damage caused as a result of agricultural and fishery disaster in a more realistic and efficient. and in 2012, Agricultural and fishery Accident Insurance Act was enacted. However, still have a lot of problems. Therefore, this paper tries to review the compensation system in the United States and presented its implications in order to improve the policies improvement and realization of the Accident Compensation
  • 7.

    A Study on Legal and Structural Issuses of Comprehensive Real Estate Tax System as Gross Wealth tax

    Jeong Hoe Gun | 신평우 | 2013, 61() | pp.137~154 | number of Cited : 3
    Abstract
    The purpose of the thesis is firstly, to review all the elements of the tax code ruled either unconstitutional or inconsistent with the Constitution by the Constitution Court and secondly, to make suggestions for improvements on the law underwent a revision by the National Assembly from a legal perspective Firstly, the comprehensive real estate tax dose not overlap with the property tax so it is not double taxation, first because deductions for property tax commensurate with the previous payment are made, second because by the multi-level standard of assessment the property tax is laid on a relatively low rate compared to comprehensive real estate tax. Secondly both property and the comprehensive real estate tax should be combined and converted to land holding tax in order to resolve suppressed development or renovation for housing issues caused by high rate of housing holding tax.
  • 8.

    A Study on Alternatives according to Unconstitutional Adjudication of Restrictive Identification system

    KIM, MIN HO | 2013, 61() | pp.155~178 | number of Cited : 1
    Abstract PDF
    According to the Unconstitutional Adjudication decision of the Constitutional Court, Article 44 paragraph 1 and 2 of the Information Network Act and the relevant provisions of the Enforcement Decree of the Act lost effect August 23, 2012. However, there is no evidence that the Constitutional Court supports that the board administrators should not identify board users restrictively. It is just interpreted that the law should not force board administrators (private) to use restrictive identification. In other words, the decision of board administrator whether they use restrictive identification at the sole discretion of their own, not by a mandatory rule of law, and the decision of the Constitutional Court does not mean that the system itself is unconstitutional. Thus, seeking alternatives after the unconstitutionality decision, we need to understand exactly what that means and also analyze the reason for the decision of the Constitutional Court. Governments and public agencies of advanced countries are taking advantage of private SNS instead of administrating their own boards. If the purpose of public agencies' websites is to provide information or to handle complaints, the nation, it seems to be desirable for the Korean government to use SNS for formation of the public opinion, or e-mail for listening to the opinion of the complainant, rather than directly operating a board. It will not be easy for private information communication providers, in particular portals, to implement restrictive identification system autonomously when there is no legal or institutional basis. However, in developed countries, private sector manages boards more thoroughly that public sector, including identification and the adjustment process (moderation process). It does not seem to be appropriate for the benefit of companies and consumers to post unfiltered information such as inaccurate information, abusive articles defaming opponents, etc. It is sure to be beneficial in the long term, by improving the image of the company as well as the dignity of the service, if information and communication service providers autonomously conduct the minimum restrictive identification system. The minimum identification means that only minimal amount of information, such as name, e-mail which does not infringe any personal information should be used in identification. Improving the reliability and dignity of the service, we are able to take a position to compete with foreign portals.
  • 9.

    On the Constitutional Study of Decision on Unconstitutionality for Online Real-name System and Self-regulation for the Community

    chojaehyun | JI, SEONG WOO | 2013, 61() | pp.179~206 | number of Cited : 3
    Abstract PDF
    The purpose of this study is about the issue on whether problem solving method through legal and institutional complement such as expansion of review board to evaluate contents on the internet and reinforcement of investigative agency for defamation as part of follow up for government measure are adequate. In other words, this is regards to the method for reasonable and proper regulation which also could guarantee the freedom of expression on the internet to the utmost limit for the public. Today, dominant structure of Internet is formed with ‘netizen’, ‘internet private government’ as an online service provider, nation and also ‘internet community’ influencing on culture formation in the cyberspace. Above all ‘internet community’ in the system of the internet space ‘participation’ and ‘democratic’ is the very important factor due to the nature of its structure. Therefore the need for rational self-imposed regulation is extremely great in the consideration of the reason that the internet online service provider is holding a prominent position in relationship with netizen as user. Furthermore, there will be more possibility of increasing risk for private censorship by burdening excessive legal liability. And to conclude, it is necessary to place confidence in self-imposed regulation which tries to minimize the restriction from law and policy and prioritizing the value of expression for democracy even though the level and the outcome are not sufficient still.
  • 10.

    A Study on the legal doctrine in normalization of legal entity of private school on leading cases of the Supreme Court in Korea

    허덕회 | 2013, 61() | pp.207~224 | number of Cited : 2
    Abstract
    The Law of Private School in Korea § 25-3 authorize to Ministry of Education appoint to Legal Entity of school temporary directors of power, but § 25-3 does not provide Ministry of Education of competency and limits. The Supreme Court in Korea sentence normalization of Legal Entity of school establishment and management of freedom in Constitution Law in Korea, and Recovery of the original form of Legal Entity of school. According to Ministry of Education procedure on normalization of legal entity of school must reflect person foundation of private school and the directors of legal entity of school in past. Private School Disputes Mediation Committee deliberate on original form of legal entity of school and Ministry of Education appoint to directors of legal entity of school according to the deliberation result. In this article purpose that doctrine of normalization of legal entity of school about on Private School Disputes Mediation Committee deliberation of original form of legal entity of school and Ministry of Education decision of competency and limits in Supreme Court's common law.
  • 11.

    Comparative Analysis on Political Funds - Focused on Comparison between Japanese Political Funds and Korean Political Funds -

    Moon-Hyun Koh | 2013, 61() | pp.225~256 | number of Cited : 3
    Abstract
    There is a system of opening of income and expense figures of political funds to the public so as to guarantee appropriate offering of political funds and to secure transparency of political funds in Japan and Korea. Japan and Korea have a lot in common in political fund law as follows. First, there is a statutory fundraising organization such as political organization of Japan and supporters association of Korea as a way to raise contributions. Second, there are a system of reporting of income and expense figures of political funds to the National Election Commission, a system of making an entry of income and expense figures of political funds in accounting records in accordance with political fund law and a system of opening of income and expense figures of political funds to the public in accordance with political fund law so as to guarantee appropriate offering of political funds and to secure transparency of political funds every year. There are differences between Japan and Korea in political fund law as follows. First, candidates for public office raise political funds because it is prohibited to raise contributions by a political party in Korea. On the other hand, it is allowed for a political party to designate a organization of political funds in order to raise political funds in Japan. Second, it is forbidden for a corporate body or organization to donate contributions in Korea. On the other hand, it is allowed for a corporate body or organization to donate contributions to a political party within settled amount according to scale in Japan. Third, there is an annual limit that supporters association can raise political funds in Korea. On the other hand, there is no annual limit to a political organization except for maximum limit to a contributor in Japan. Fourth, National Election Commission has a authority to investigate into a violation of the Political Fund Law in Korea. On the other hand, there is no provision related to a authority to investigate into a violation of the Political Fund Law in Japan. As seen above, there is a difference in Political Fund System according to level of rule of law and constitutionalism between Japan and Korea. And yet, it is very meaningful that each country takes a measure to expand transparency of political funds as a basis for preventing political corruption.
  • 12.

    Study on the Present Condition of Pardon Power and Legislative Policy

    Kim, Dong-Ryun | 2013, 61() | pp.257~286 | number of Cited : 0
    Abstract
    The pardon power is one of the systems implemented worldwide. There are two types of pardon: general pardon and particular pardon. A general pardon has very few problems because it requires the approval of the National Assembly, but a particular pardon has the potential of being abused and misled because it is exercised at the President's discretion without parliamentary consent. In other words, the particular pardon often goes against fairness because it is granted mainly to politicians, enterprisers, and high-ranking officials. Particular pardons were exercised five times in the Kim Dae-jung Government, eight times in the Roh Moo-hyun Government and seven times in the Lee Myung-bak Government. Especially, particular pardons at the end of the presidential term of Roh Moo-hyun and Lee Myung-bak provoked a lot of controversy. Thus, discussions to amend the Pardoning Law are held in the National Assembly. The key point of the discussions is to limit the pardon to enterprisers and President's confidants, but such cannot ensure the fair exercise of pardon power. Article 79 of the Constitution prescribes the pardon power, and the Pardoning Law stipulates the detailed matters, yet both have no legal control mechanism. Therefore, several solutions from the viewpoint of legislative policy are suggested: unity of the Constitution and the Pardoning Law; preparation of legal mechanism in the Pardoning Law, and; setup of legislative control system for particular pardon in the Pardoning Law.
  • 13.

    A review on a relationship with the police concerning installing and managing traffic safety facilities in Road Traffic Act

    Won Jung Kim | 2013, 61() | pp.287~308 | number of Cited : 1
    Abstract
    Governors of local self-governments and police agencies are designated by the present law as those who have the rights to install and manage traffic safety facilities. However, in case local autonomous police system is introduced, the issue of who has the rights mentioned above could be occurred. Thus, it is needed to regulate clearly by law whether installing and managing traffic safety facilities should be regarded as a national affair or as one of local self-governing police. The current law stipulates that a upper law of 「Road Traffic Act」 should designate governors of local self-governments as those who have the rights to install and manage traffic safety facilities. But enforcement rules of lower administrative legislation regulate traffic safety facilities should be installed in the place which police agencies designate. In this case, the upper law differs from the lower ones in entitled people who have the rights to install and manage traffic safety facilities, so it could result in obscurity when the lower legislation stipulates what the upper law regulates. Therefore, the upper law should make that clear. Also, ordinance should specify whether installing and managing traffic safety facilities is belonged to national affairs or local self-governing police's ones before local autonomous police system is operated. By doing this, legal stability and law-abiding administration should be achieved. The following purposes to analyze problems related with the rights of installing and maintaining traffic safety facilities stipulated in the current 「Road Traffic Act」, and make those clear. Futhermore, this research suggests a securely established theory about whether local autonomous police has the right to install and manage traffic safety facilities in order to prepare to introduce local self-governing police.
  • 14.

    Personal Information Protection Act in the Korea

    BAEK YUN CHUL | Moon Jae Tae | 2013, 61() | pp.309~324 | number of Cited : 2
    Abstract
    The modern society has witnessed a rapid advancement in information and communications. As a result, the domain for political and economical activities under the foothold of democracy has shifted from a real world market to a novel virtual reality market (cyber space), with the help of computer networks. This computer-based large scaled information processing is being routinely processed without facing limits of the scope of activity. Hence, the protection of personal information resulting from this has now become a problem that demands an international uniformity, well beyond a domestic problem. As the current domestic Constitutional law stands, the protection of personal information is not stipulated in the law. Theory and cases in the past have been in conformity with the right of self-determination but the Constitutional Court recently took the position that the right of self-determination falls under the fundamental right that is not elucidated in the Constitution. It can be said that the scope of application in terms of the right of self-determination in the Constitution and the personal information in the legislation is not the same. In Korea up to this day, we have protected information by applying an individuality method by separating public and private institution. However, since 2011 we has enforced the enactment of a bill of protecting of personal information, an integrated fundamental law. Ultimately, however, there is a need to bear in mind the stipulation of the right of protection of personal information within the Constitution.