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2015, Vol.68, No.

  • 1.

    Protection of Solar Access Rights in America

    Dongsoo Lee | 2015, 68() | pp.1~28 | number of Cited : 3
    Abstract
    The rights to access and to harness the rays of the sun-solar rights-are extremely valuable. These rights can determine whether and how an individual can take advantage of the sun's light, warmth, or energy, and they can have significant economic consequences. In the United States, attempts to assign solar rights have fallen short. A quarter century ago, numerous American scholars debated this deficiency. They agreed that this country lacked a coherent legal framework for the treatment of solar rights, especially given the emergency of solar collector technology that could transform solar energy into thermal, chemical, or electrical energy. The solar access issue is generally though to involve the potential shading of solar collectors by neighboring structures or vegetation. There is, however, another aspect to the solar access issue:public and private restrictions on the use of property, including restrictive covenants in deed, condominium and homeowner association by laws, architectural controls, and local government ordinances. The issue of solar access in this paper is separated into two areas:solar easements and solar rights. "Solar easements" refers to the ability of one property to continue to receive sunlight across property lines without obstruction from another's property(buildings, foliage, or other impediment). "Solar rights"refers to the ability to install solar energy systems on residential and commercial property that is subject to private restrictions, ie., covenants, conditions, restrictions, bylaws, condominium declarations, as well as local government ordinances and building code. In this context, this article aims to ①the concept of right to sun light, ②debate to solar access rights especially the doctrine of ancient light, ③Solar Shade Control Act(Cal. Pub. Res. Code 25980-25986(2009)), and a comprehensive review of solar access law in the United States, etc.
  • 2.

    Das Planfeststellungsverfahren und seine Akzeptabilitaet

    Hwang, Hae Bong | 2015, 68() | pp.29~48 | number of Cited : 7
    Abstract
    Die vorliegende Abhandlung überprüft und versucht to beantworten, die rechtspolitische Frage, ob es sowohl rechswirksam als auch empfehlenswert ist, das deutsches Planfeststellungsverfahren ins koreanische Verwaltungsverfahrensgesetz aufzunehmen. Die Frage verbleibt hierzulande im koreanischen Verwaltungsrecht. Wir koennen verschiedene Aspekte überprüfen. Das heisst die Öffentlichkeitsbeteiligung, die Objekts, die Rechtsentwicklungen und die Aufnahmeweise des Planfeststellungsverfahrens. Wir kommen zu folgendem Ergebnis: nach koreaniche Gesetze und Realitaet hat seine Akzeptabilitaet viel Schwierigkeit.
  • 3.

    Improvement of rational discussion on the official price regime in reimbursement

    Park, JongSu | 양기영 | 2015, 68() | pp.49~67 | number of Cited : 3
    Abstract
    Housing site/lot developmentbusiness are being implemented to stabilize the housing market and to solve the residence problem. In case of acquisition of land for these public services, indemnification must be preceded, that is, Just compensationas defined in the Constitution Article 23, paragraph 3). Thus, in order to appropriate compensation more objectively, officially assessed land price system is needed and the price should include real estate market price. But unearned income should be excluded from compensation and the point of time for price is defined as “price at the time of yielding an agreement where consultation is held”or "the price at the time of adjudicating on the expropriation or use where such adjudication is rendered“. So the difference in the compensation amount and arm's length price is caused. Thereby comparative deprivation of landowner and equity issues are raised and It is planned to land price balance because officially assessed reference land price is tax base that can cause refusal to pay tax. Generally officially assessed reference land price of national experience is lower than arm's length price. To solve this problem though there are many researches and institutional changes it has not been resolved. The questions whether the official land price system to solve the two problems that are fair taxation and Just compensationare raised. Their purpose and evaluation methods are clearly distinct. Nevertheless It was instituted only one process. and It causes a cyclical contradiction. Therefore it should be a The legislative resolution in order to remove the contradiction.
  • 4.

    Improvement unity of construction dispute resolution system

    홍성진 | 2015, 68() | pp.69~83 | number of Cited : 2
    Abstract
    The Previous Construction Business Act(Act No. 614, May 5, 1961) is first legal mediation system of administrative law governing the dispute between the private in korea. This is due to the professionalism and uniqueness of the complex, diverse structure and individual construction of the construction works. Especially, most of the construction works is being done through a subcontract transactions, if the dispute encountered between the contractor and socioeconomically disadvanteged subcontractor is being used for quick and inexpensive construction dispute resolution system. Construction Dispute Resolution system is dual to the Construction Dispute Conciliation Committee on "Framework Act on the Construction Industry" and Subcontract Dispute Mediation Council on "Fair Transactions in Subcontracting Act. Both dispute resolution institutions have for between private's disputes as administrative law disputes mediation system provides administrative agency. As such, construction dispute resolution system can be unity by conceding effect as a judicial compromise to Subcontract Dispute Mediation Council on "Fair Transactions in Subcontracting Act and giving mediation authority to Administrative Suit of Construction Dispute Conciliation Committee on "Framework Act on the Construction Industry.
  • 5.

    A Study on the Actual Condition of Legal Characteristics and Conflict Causes in the Management and Disposition Plan of Urban Improvement Project

    Pilkyu Cho | 2015, 68() | pp.85~102 | number of Cited : 2
    Abstract
    The Management and Disposition Plan of the Urban Improvement Project is the most sensitive stage to determine the final Sharing Expenses of landowners who agree with project. And it is also the most important stage to determine the success or failure of the project depending on how quickly it can be completed. Therefore, to the efficient implementation and improvement transparency in the Urban Improvement Project, it is urgent to consider improvement by analyzing and in-depth study on the current situation of various conflicts in the stage of Management and Disposition Plan. Accordingly, the purpose of this study is to figure out the legal conflicts and deduce improvement in the Management and Disposition Plan to implement the Urban Improvement Project efficiently.
  • 6.

    A Study on the Appraisal as the Management of Land in North Korea after Reunification

    Jeong Hoe Gun | 최승조 | 2015, 68() | pp.105~134 | number of Cited : 4
    Abstract
    Korean Peninsula is the only divided country on the earth. In economic terms, the initial step to unify the divided Korean peninsula into one nation can be said of the installation of "Kaesong Industrial District". The installation of "Kaesong Industrial District" in addition to the designation of "Najin-Seonbong Economic and Trade Zone", "Sinuiju Special Economic Zone" and "Mount Kumgang International Tourism Zone" and so forth is a symbol of inter-Korean economic cooperation as part of the policy of opening to the outside. Changes in these policies will be an opportunity to promote unity and they mean that it is the time for us to prepare and provide for unify. Thus, as a land management plan for the North after the unification, research and preparation for appraisal are the challenges given to us. As land management plans for the North Korea after reunification, various alternatives have their own advantages and disadvantages, but we know that a unified Germany had problems in the process of privatization of East German land, so the promotion of rapid privatization will cause many social and economic problems. Therefore, as a public rental system is a Trade-off model of land privatization and land-sharing system and a long-term lease model to real users while the unified nation, local governments, public institution and private development corporations have ownership of land, we propose a system which minimizes social and economic disruption caused by soaring land and land speculation, but additional research will be needed on whether it is suited for the realities of our post-unification. As land management plans for the North Korea after reunification, land pricing shall be calculated in the appraisal. During the past half-century or more, on the results of the research whether appraisal system of South Korea can afford land pricing of North Korea which does not allow private land and does not need to price land because of state-owned land, in accordance with the division of long-term social, economic and cultural context different from the South, it is impossible to accept the South of Appraisal without filtration. Would enact a special law is needed to minimize the confusion of pricing for management of North Korean land after reunification and an appraisal system applicable to the assessment of land in North Korea is likely to be introduced by the special law. Since the economic situation in North Korea and the economic level in residents of North Korea are improved, due to this purchasing power for land increases, therefore the introduction of a free market economic system is possible, appraisal of South Korea is believed to be able to apply.
  • 7.

    A Study on the Legal Limit of the Function of Committee in Planning Administration

    Han Sang Hoon | 2015, 68() | pp.135~160 | number of Cited : 1
    Abstract
    As the importance of administration planning is growing in modern administration field, elements of the principle of constitutional state made by the predictability of administrative operation such as legal stability and principle of protecting confidence are receiving great concern. In general, administration authorities have discretion of planning over the judgement of planning issues and the existence of administration planning enlarges the authorities’ discretion of administration and justifies the implementation of the discretion. Based on theses circumstances planning activities of administration authorities increased dramatically recently along with the growing importance of planning in modern society. As the consequences of these changes, it is expected that cases of administration executed by planning are increasing sharply comparing to the cases of administration executed by legal regulation in the near future. Therefore, in order to sustain legal stability and principle of protecting confidence made by the predictability of administrative operation it is necessary to have special concern for the preparation of adequate judicial control over the discretion of planning. Urban planning committee works not only as a consultative body but also as a deliberative body regarding to urban planning. At the early years of introducing the urban planning committee in urban planning, the committee used to work for providing professional opinions for the governor of its authority as a consultative body but the committee’s role has been diversified including the survey, research, planing for urban plan, and direction for urban plan. Within the same period the influence of urban planning committee over the decision-making authority given to the governors of local towns continuously growing and it becomes in a critical status today. For instance problems of local urban planning committee such as committee members’ corruption, appointing deprofessionalized committee member, excluding proper participation of citizen, and a closed meeting of the committee cause various civil complaints against the administration planning for urban plan. However adequate judicial control over the discretion of planning given to the committee has not been prepared. Based on these situations Korean government recently introduced Guideline for the Operation of Local Urban Planning Committee and this study reviews the guideline based on the principle of planning control and principle of constitutional state examined in above. Finally this study provides some recommendations for rational amending of the guideline in terms of the perspectives of legal limit of the function of committee in planning administration.
  • 8.

    A Study on Appraisal of Public Water Reclamation Licence Right - Focus on Saemangeum Development Project -

    Kim,Jong Ha | 2015, 68() | pp.161~182 | number of Cited : 0
    Abstract
    The Public Waters Management and Reclamation Act is the governing law for public waters reclamation projects in general. The Special Act on Promotion of and Support for the Saemangeum Project is a special act of the said Act, which includes special case provisions governing supply and ownership of lands created by public waters reclamation, and transfer and acquisition of reclamation license. Neither Act, however, includes any provision on appraisal for transfer and acquisition of reclamation license. Therefore, appraisal of reclamation license needs to be conducted based on consideration of all matters and laws related. The Saemangeum Project, which this Study focuses on, involves supply of raw lands. However, since the project does not specify the concept of such raw lands, transfer and acquisition of reclamation license may include supply of raw lands. In other words, transfer and acquisition of reclamation license include transfer and acquisition of the ownership of lands in the future, as well as transfer and acquisition of the license itself. Therefore, appraisal of transfer and acquisition of reclamation license needs to be conducted based on consideration of the appraisal of the lands, as well as the appraisal of the license right itself. In light of the above, this Study concludes that appraisal of reclamation license should consist of appraisal of public waters and appraisal of the exposed sites, and the former should be conducted using the historic cost method, while the latter should be conducted using the market approach based on the original purpose of reclamation before change.
  • 9.

    Acquisition of Land for Development in the Public Interest in Indonesia

    Hae Cheol Byun | LEE, So Wang | 2015, 68() | pp.183~209 | number of Cited : 2
    Abstract
    Indonesia’s land acquisition laws have long been considered as the main handicap to executing much needed infrastructure development projects. Law No.2/2012 ‘Acquisition of Land for Development in the Public Interest’ replacing the Presidential regulations No.55/1993 and No.36/2005 on Land Aquisition for Public Interest and the Presidential Regulation No. 71/2012, it is not only expected to provide, clearly and certainly, the needed land for the development of infrastructure projects, but also to give a reasonable and fair compensation to affected parties by the compulsory land acquisition. There are four steps in the procedure for acquiring land for the public interest, namely planning, preparation, acquisition, and hand-over. The period for land acquisition could be considered clear and certain by stipulating a maximum period of each steps of land acquisition. According to the Law No.2/2012 ‘Acquisition of Land for Development in the Public Interest’, if there are no objections or appeal requests, the land acquisition process will take around 319 working days. But, in case of objections or appeal requests, a maximum period for land acquisition could be 583 working days. However, it could be also considered still far too long. Even though the negotiation process for compensation is considered important for safeguarding individuals' rights on the acquired land, the evaluation system for compensation is not yet well established. And, human rights of the residents in the related area have been sometimes violated by officers' coercive measures, which were the relics of the past authoritarian government. It is continuously needed to make up for the weak points of the laws related to the compulsory land acquisition, including the Land Law itself, legal system on the evaluation for compensation, etc. And, the affected parties by the land acquisition having to understand the necessity of land acquisition, the public agents' behaviour should be changed for respecting human rights of affected parties.
  • 10.

    Bemerkung zum Novellierung des Katastrophenschutzsystem in Korea

    Hae-Ryoung Kim | 2015, 68() | pp.211~231 | number of Cited : 7
    Abstract
    Bei dieser Abhandlung handelt es sich um Abschaetzung auf die Erneuerung des Verwaltungsystems fuer Katastrophenschtz, die im Ende des vergangenen Jahres 2014 von der koreanischen Regierung durchgefuert wurde. Nach der Renovierung dieses System wurden die Meerpolizie und die zentrale Behoerde von Fuerwehr und Katastrophenschtz abgesetzt und die zentrale Behoerde fuer Bevoelkungssicherheit neu gebildet. Aber dieser Noviellierungsvorhaben konzentiert sich auf die organisatorische Seit. Deshalb wird die Verbesserung des Katastrophenschutzsystems in funktionellen Hinsicht nicht gewesen. Das Katastrophenschutzsystem in Korea ist immer noch komplisiert, in dem schnelle Schutzmassnahme bei der Kastroffenfaelle blokiert und verzaegert sind. Unter diesem Umstaenden ist es sehr erforderlich, diese System mehr einfach aufzubauen ist und mehre Verantwortung fuer Katastrophenschutz auf unteren Behoerde gegeben wird.
  • 11.

    Einführung der Verpflichtungsklage und Erweiterung des Rechtsweg

    Song Dongsoo | 2015, 68() | pp.233~253 | number of Cited : 5
    Abstract
    Die vorliegende Arbeit befaßt sich mit der Einführung der Verpflichtungsklage in Deutschland. Die Verpflichtungsklage ist eine der Klagearten nach der deutschen Verwaltungsgerichtsordnung. Mit dieser begehrt der Kläger die Verurteilung der Behörde zum Erlass eines ihn begünstigenden Verwaltungsaktes gemäß § 42 Abs. 1 2. Fall VwGO. Wegen der Gewaltenteilung ist es dem Verwaltungsgericht nicht möglich, den vom Kläger begehrten Verwaltungsakt selbst zu erlassen, wenn ein Ermessen der Behörde besteht. Die Verpflichtungsklage ist der Sache nach ein spezieller Fall der Leistungsklage, in dem sie auf den Erlass eines Verwaltungsaktes gerichtet ist. Durch dieses Klageziel unterscheidet sie sich von der nicht ausdrücklich geregelten allgemeinen Leistungsklage. Das Urteil selbst ist nicht rechtsgestaltend wie im Rahmen einer Anfechtungsklage, bei der das Gericht gem. § 113 Abs. 1 VwGO den Verwaltungsakt selbst aufhebt. Vielmehr wird bei erfolgreicher Verpflichtungsklage der Beklagte gem. § 113 Abs. 5 Satz 1 VwGO verpflichtet, den begehrten Verwaltungsakt zu erlassen, wenn die Sache spruchreif ist. Ist die Sache hingegen noch nicht spruchreif wie bei einem Anspruch auf ermessensfehlerfreie Entscheidung, so spricht das Gericht nur die Verpflichtung aus, den Kläger unter Beachtung der Rechtsauffassung des Gerichts zu bescheiden (sog. Bescheidungsklage).
  • 12.

    A Study on the Approach to Improve Livestock Disaster Insurance System

    Jang Kyo-Sik | Yoo, Seong hee | 2015, 68() | pp.255~281 | number of Cited : 0
    Abstract
    As meteorological disasters and animal diseases have been occurring for dozens of years, the state government implemented 'livestock disaster insurance' to prevent damages and stabilize farm management by compensating the damages of farmers. The livestock disaster insurance plays a positive role in strengthening the infrastructure for the management of the livestock industry by distributing the potential risks for livestock and farmers. However, the livestock disaster insurance is not sufficient as national policy insurance. In accordance with the results from the comparison with the 'livestock mutual aid system' in Japan which can be mentioned as advanced livestock disaster insurance, the 'livestock disaster insurance' of Korea had weaknesses in terms of legal stability and the system to secure coverage of medical expenses for livestock and its implementation. Accordingly, the livestock disaster insurance needs to be improved to practically help livestock farmers stabilize farm management. Furthermore, it is necessary to clarify the legal basis for livestock disaster insurance by reorganizing the Agricultural and Fishery Disaster Insurance Act and to expand the scope of compensation on the damages by including the Class 3 Infectious Diseases in Domestic Animals in the category of mass cull. Moreover, it is necessary to introduce the medical expense compensation system in the livestock disaster insurance to more effectively control and prevent diseases in domestic animals, a blind spot in the Agricultural and Fishery Disaster Insurance Act. To cope with a massive livestock disaster, the national reinsurance system in which a state compensates the damages with the responsibility on the general insurance money needs to be expanded to livestock. Accordingly, livestock insurance will contribute to stabilizing farm management and preventing livestock diseases in practical aspects.
  • 13.

    The Present Legislative Situation and the Analysis of the Problems about The Fine Notice Disposition for Making the Framework Act

    Cho Man Hyeong | 2015, 68() | pp.283~316 | number of Cited : 6
    Abstract
    Our country has one of the effective methods of national administration: It punishes the citizens, who violate the administrative law, with “The Fine Notice Disposition” or “Fine for Negligence.” The former procedure is in the middle of penalty and administrative restriction, and so many scholars have pointed out its problems. Nevertheless, many laws adopt “The Fine Notice Disposition” because it is still useful as an effective measure of administration in the tendency of strengthened power of administration caused by the explosive increase of administrative demand. Now our country has thirteen laws of five fields that have this system. This paper selects nine core items of “The Fine Notice of Disposition” shown in the above laws: the object, the requirement, the range of fine, and performance period etc. Plus, it points out the problems by comparing and analyzing the legislative situations of each law. After this research, we can see the necessity to enact a unifying law about “The Fine Notice Disposition”because the regulations are considerably different in the different fields even though they are implemented with seemingly similar items in the same administrative field. Lastly, this paper wishes the results of the legislative situational analysis of “The Fine Notice Disposition” could be used for the primary materials when establishing framework act on fine notice disposition.
  • 14.

    A study on the legal review of the Fire Safety Management Regulations

    신평우 | 2015, 68() | pp.317~336 | number of Cited : 2
    Abstract
    Discussion considers the individual's life and property of the people as a precious value the significance or the legal nature of the protection of public safety hazard prevention duties in accordance with the Constitution of the country is insignificant, but one of the important basic concepts through the concept of the social state principle of public welfare. and to identify a rights. If you understand the value of human dignity and safety to the right, the right to life from the enemy Fundamental Rights obtain the evidence or the evidence is found in the disaster prevention duty of the state to assure the protection of national security as a fundamental right of citizens. The government should provide a safety top priority of service to the public. Happy people's individual lives under the premise that soon leads to national development legislature, judiciary, administration, etc. It will mission of that country to protect the people from the close mutual cooperation and risk based on a number of studies to protect the safety of the people. Therefore, efforts in this direction of research papers analyze the problem and present a revision of the current legislation through ball judicial review of the administrative building of the fire safety regulations and building institutions to examine the social factors closely related to the maintenance Fire Safety Management Regulations reporter was. First, look at the constitutional grounds of health and safety requirements, of the Constitution, "and while we promise to our safety and to secure the liberty and happiness of posterity for ever," said that part of the Constitution, Article 10 and Article 34 of the Constitution were able to identify a regulatory basis. Next to this the fire safety management based on the constitutional basis of the legal status of the subject of fire safety managers evaluate arrest in the area of administrative law. For fire safety manager, in charge of the side missions, but to keep the ownership of private property in the building, Because the mission of overlap in various fire safety management of public areas and to protect the safety and lives of the people of the public, the legal status can be seen as a legal basis for official custodian signs, sign gonguimu burden through ball judicial review was weak, you can see a rather high in terms of administrative assistants. Thus strengthening the expertise of fire prevention, based on the safety and rights of the Constitution must be done to ensure the safety administration systematically strengthen fire prevention administrative law, with the legal status of the safety administration on the basis that the insolvency administrator check that accumulated evils regulations as assistant as a way to give publicity to private inspection should be made as soon as possible to resolve the direction of the relevant provisions of this amendment. It was presented in this paper, for example, first, introduce the auxiliary fire safety manager system and multi-use appoints the owners or employees of establishments qualified as a secondary safety management, efficiency and continuity of operations through the fire safety manager should be assistance was to be strengthened. And the scope of work and the work of the agency is acting as an object, as well as fire-fighting facilities management contractor in accordance with the technical staff size by limiting the number of work held by the agent object, it is necessary to increase the efficiency of fire safety management agency. Also has a high expertise, such as management contractor rather than an eligible employee in the safety inspection of multi-use or multi-use premises owners, and check the vendors are more effective and can be called to report the results. In addition, so as to submit to the computer network of the check result, the systemic administration of discomfort and check the result of the complainant needs to perform.
  • 15.

    Legal possibility of an injunction on the basis of environmental rights

    Kim, Se-Kyu | 2015, 68() | pp.337~362 | number of Cited : 5
    Abstract
    According to consistent precedents of the Supreme Court, environmental rights sanctioned under private laws do not have their legal basis in the provisions of the Constitution. Also, the Supreme Court has sporadically recognized private-law rights to sunshine, view, religious environment, educational environment, etc. on the condition of ‘exceeding the limit of patience’, under the premise that claims for removal of disturbance cannot be recognized directly on the ground of environmental rights unless there are explicit provisions which recognize environmental rights as such under private laws. In the environmental-right theory which is one of the theories regarding legal basis of an injunction, it should be noted that an environmental right can only be recognized when the subject, object, contents, method of exercise, etc. of the right can be concretely established in the light of explicit legal provisions, purposes of relevant laws and natural reasoning. Therefore, the precedents of the Supreme Court have firmly established that claims for removal of disturbance cannot be sanctioned directly based on environmental rights when there are no explicit legal provisions recognizing environmental rights as such under private laws. In connection with the issue of legal basis of an injunction, there is also another view that notes the scope of remedies for the sufferer is inevitably limited in sofar as the existing real-action theory is held fast to. Under these circumstances, some formidable opinions which recognize concrete effects of environmental rights have come to the fore of late and a few lower courts have accepted such arguments in their judgments. And a judgment by the Supreme Court (25 September 2008, 2006c49284), though not published, confirmed that the original ruling (the Daejeon High Court, 21 June 2006, 2002b6362) which decided that ”the above-mentioned residents have the rights to demand the suspension and prohibition of the digging works“ did not have any illegality of misunderstanding legal principles. Under the development of such judicial precedents, this paper starts with raising the issue of whether or not an injunction application cab be filed on the basis of the environmental-rights provisions of the Constitution. With regard to the legal nature, contents and effects of the environmental-rights provisions of Article 35 of the Constitution, the opinions of some domestic scholars of the constitution and environmental laws have been quoted in this paper which contend that environmental rights can be regarded as concrete ones to demand the removal of any infringement with regard to the environment on the basis of Article 35, Paragraph 1 of the Constitution. Such opinions provided much help for preparing this paper. The following is the conclusion of this paper, which provides a brief explanation for the recognition of environmental rights as concrete ones and the legal possibility of an injunction based thereon:1) In practice, some hope and argue that forward-looking court decisions should be accumulated, which draw the statutory grounds of an injunction directly from environmental rights. Accordingly, in furthering such point of argument and from the standpoint of sympathizing with preceding studies, this paper proposes that the legal principle of the public trust doctrine should be incorporated in Article 35 of the Constitution as the basic thought of acknowledging the legal principle of environmental rights. 2) This paper totally supports the view that the provision of Article 35, Paragraph 2 of the Constitution saying “The substance and exercise of environmental rights shall be determined by Act”, and ‘the purposes of provisions of laws’ and ‘the natural reasoning’ cited by the Supreme Court should be presented as the logical basis for recognizing the concrete nature of environmental rights, and not vice versa for refuting it. When the so-called environmental rights provision was first introduced in the Constitution totally amended on 27 October 1980, Article 33 provided that “All citizens shall have the right to live in clean environment”, without any legal (reservation) basis clause regarding the substance and exercise of environmental rights. And then, Article 35, Paragraph 2 of the Constitution totally amended on 29 October 1987 had a legal basis clause, which has remained unchanged thereafter. Accordingly, on the back of preceding researches and for serving the purpose of realizing a nation of clean environment, the author is of the opinion that it is necessary to clearly recognize and declare the concrete nature of environmental rights in the constitutional frame. It should be carefully considered to delete the legal basis clause of Article 35, Paragraph 2 of the Constitution providing that “The substance and exercise of environmental rights shall be determined by Act” and introduce instead a provision which represents the legal principles of the public trust doctrine. By doing so, with regards to the issue of its legal basis, an injunction could be realized on the basis of the environmental rights provided in Article 35 of the Constitution.
  • 16.

    Rechtliche Probleme von Mindestwasserführung für Gewässerökologie

    Kim, Hyun Joon | 2015, 68() | pp.363~387 | number of Cited : 1
    Abstract
    Eine bestimmte Wassermenge soll kontinuierlich im Fließgewässer verbleibt und durchgeleitet werden. Die Anforderung an Mindestrestwassermenge ist in den meisten Staaten über das Gewässerschutz- oder Wasserrecht geregelt und wird üblicherweise in der wasserrechtlichen Zulassung der Stauanlage bzw. der Wasserentnahme festgeschrieben. Auch im koreanischen Flussgesetz (KFlussG) ist die Mindestrestwassermenge geregelt. Nach § 51 KFlussG soll der Minister für Land und Transport die Mindestmenge von fließendem Wasser bestimmen, um ordnungsgemäßige Funktionen und den Zustand des Flusses zu erhalten. Dabei sollen Nachfragen von Wassermenge für Lebensunterhalt, Industrie, Landwirtschaft, Verbesserung der Umwelt, Stromerzeugung, Schifffahrt usw. berücksichtigt werden. Die Mindestrestwassermenge nach § 51 KFlussG ist m. E. kein effizientes Instrument für Gewässerökologie. Um diese Probleme zu bewältigen, ist gesetzliche Verbesserung für nachhaltige Flusswasserwirtschaft erforderlich. Bemerkenswert ist hierbei, dass der Begriff "Umwelt" mehrdeutig angewendet wird. Während er in seiner Kernbedeutung die Natur postuliert, postuliert er in seinen erweiterten Bedeutungen auch soziale und wirtschaftliche Umwelt. Das Gewässer für Umweltverbesserung im § 50 KFlussG wäre ein Beispiel für den letzteren Fall. Das Ziel der vorliegenden Arbeit besteht aber darin, auf der Basis einer Umwelt in der Kernbedeutung die rechtlichen Probleme von Mindestwasserführung zu untersuchen. Um dieses Ziel zu erreichen, ist die Novellierung des KFlussG oder des Gesetzes für Gewässerqualität und -ökologie notwendig. Die Kodifikation eines umfassenden Wasserwirtschaftsgesetzes ist auch aus diesem Anlass zu berücksichtigen.
  • 17.

    A Legal Study on Legal Frame Work of Climate Change Response Policy

    Kim, Sung-Bae | 2015, 68() | pp.389~429 | number of Cited : 2
    Abstract
    There are official IPPC reports on Climate change but there are still scientists debate whether human-induced climate change is pushing natural variability to the extreme or whether global warming has real scientific certainty. Legal science or law professor should involve in policy and law making process of climate change legal framework. Legal framework for climate change must include the other related notion such as environmental justice. However the low-carbon green growth Act or other related law have not embrace the idea of social justice and balanced development between local governments. Korean government should consider unbalanced developments between local and the capital area when she designed the emissions trading system. Local governments are in several distinct positions such as polluter, policy maker, policy keeper and local governments. Korean government should consider unbalanced developments between local and the capital area when she designed the emissions trading system. To accomplish these green growth, balanced development and social justice, there must be redistribution government power between central government and local government from making rules and regulation to imposing taxes as well as reform of national and local tax system. The global warming caused by GHG has emerged as a global environmental problem. For this reason the continued efforts to reduce GHG emission by international cooperation and each country are in progress. This study was performed for a successful accomplishment of Korea’s ETS aims in 2015, that is to reduce GHG emission, maintain competitiveness of the domestic industries and to reinforce competitiveness of the environmental management of domestic companies through comparing analysis.
  • 18.

    A Comparative Law Study of the APA’s General Statement of Policy and the Korea’s Discretion Directive

    Hwang, Ui-Kwan | 2015, 68() | pp.431~466 | number of Cited : 4
    Abstract
    The purpose of this study is to perform comparative law study methodology concerning the general statement policy in APA and the discretion directive in the korean legal system. The reason of choosing the general statement of policy and the discretion directive as comparative law study object dues to the similarity the definition and function of these. Addition to this reason, these comparative law studies enhance the legal interpretative theory and the legal system in the korea. The focus of comparative law study is to research the definition, function, and related problem of the judicial review of general statement of policy. In order to this researches, this article researches the related theory and case law and analysis these materials. The 1st chapter researches the provision of the general statement of policy in Administrative Procedure Act and analyzes the interpretation of that provision. Additionally, 1st chapter reviews the APA’s definition of the rule and the criteria of the classification of rules, analyzes the criteria, definition, and the function of general statement of policy. The 2nd chapter researches the issues related to the judicial review of general statement of policy and analyzes the federal court’s cases. These issues includes the classification criteria of rules, whether the general statement of policy meets the ripeness doctrine, and the scope of the judicial review. The 3rd chapter carries out the comparative legal study of the discretion directive in korean jurisprudence and the general statement of policy in U.S. administrative law system. Through these comparative law study of discretion directive and general statement of policy, this article induces the legal interpretation of the issues related to discretion directive that includes the definition, function, and judicial review of the discretion directive.
  • 19.

    Study on Inequality regulation of the Internet service

    Hyunkyung KIM | 2015, 68() | pp.467~495 | number of Cited : 8
    Abstract
    Recently, regulatory discrimination between domestic and foreign Internet service providers have been consistently raised. Regulation on the Internet is associated with securing regulatory jurisdiction of the state. The jurisdiction of the state is ultimately linked to the issue of whether the state can exercise its sovereignty in the cyberspace. This paper, after reviewing about the meanings of sovereignty in the cyberspace, tried to look for ways that equitable enforcement of regulations can be implemented fairly to domestic and foreign companies based on the principle of sovereignty. Since the concept of sovereignty has a function as the limit of the relationship between countries governed by assuming the independence and autonomy of each country, sweeping waiver or modification of the concept of sovereignty in the cyberspace is unrealistic. Therefore, the concept of state sovereignty is still present in the cyberspace. However, the manner in which state sovereignty is working can be modified in the cyberspace. In other words, the people of the cyberspace can not be completely free from the country also operated by state sovereignty, and state sovereignty can not be ruled out in the cyberspace. But all over the world, each country has a unique legal system and culture, having formed each different political, social and economic backgrounds, so the unified regulation on the cyberspace around the world, is not feasible. Eventually, the failure of the international consensus on Internet regulations can lead to disputes and conflicts between nations. In this conflicts, whether we are able to observe state sovereignty is a sensitive and important issue. because it may affect the phase and national pride as an independent state. The cyberspace is still the area on the sovereignty of a country, as the realization of such a sovereign, jurisdiction regarding making and enforcing regulation about cyberspace is recognized. Therefore, even if the business activity in the cyberspace is provided by the foreign operators, if it is connected to the illegal results occurred in domestic, regulatory jurisdiction over them is to be recognized for the effective enforcement of regulation. Equity in regulatory implementation shall be applied. That regulation is to be enforced without discrimination, the process can expect the voluntary compliance with the regulation through the fair competition, and it is possible to implement the consistency of regulation. However, in recent years, based on the characteristics of the cyberspace, bypassing or avoiding regulation has occurred. Also in the Internet business "the principle of the same category, the same treatment" of regulatory equity has not been kept between domestic and international carriers, and due to the regulation deterioration and unequal regulation, regulatory costs are also being used excessively. So I would like to propose three measures to implement regulatory equity based on state sovereignty over the cyberspace. First, in implementing the regulatory impact analysis, reverse discrimination factor between domestic and foreign operators need to be clearly reflected. Also in order to perform role to prevent unreasonable regulations on the Internet in advance and to substantially improve the regulation, Internet regulation governance system needs to be established. Also, if we have universal validity of the regulations and restrictions, it is necessary for domestic and international service providers to abide by such regulations without discrimination. Even if there is not the regulation in abroad, it has been recognized as a national law regulating because of its universal rationality, government enforcement of such regulations shall be strong.
  • 20.

    A legal review and model abut improvement to self-governing police system of Jeju special self-governing province

    Ko Heon Hwan | 2015, 68() | pp.497~520 | number of Cited : 11
    Abstract
    On Feb. 28, 2007, the self-governing police force on Jeju special self-governing province is launched with the inauguration ceremony. By the way, at that time a year from now, the self-governing police had been management for ten years. at this point of time, if it estimate of the self-governing police, had estimate successful itself. owe to interest with local residents, academic study, successful achievement of plan, improvement to self-governing police system but it is well known of managemental issue that personnel matters, financial affairs, specialty, working form and so on. So now, reestimate in a dimension about self-governing police, the self-governing police would be introspect oneself that model agree to purpose of self-governing police, and what is improvement plan about problems. as such, Jeju special self-governing province type model, would be improvement system agree to its model. Therefore, in this study 1t was review and analyse about model of self-governing police, presented to Jeju special self-governing province type model and it was considerate on legal improvement agree to model about the major issue come out in the management status, for that the self-governing police for the purpose of doing settled more successful system, and in order that model for enforce to on a national scale.
  • 21.

    A Study on the German National Norms Control Committee's roles & performance

    Jeong Kuk Won | 2015, 68() | pp.521~542 | number of Cited : 1
    Abstract
    This study intended to look into roles & performance of the German National Norms Control Committee, and present useful implications on preparing institutional gadgets for legislation evaluation having been lively discussed also in our nation since year 2000. Germany went through long discussion between the parliament and the administration regarding legislation evaluation, and founded the National Norms Control Committee as a legislation evaluation body, through which it executes systematic, effective legislation evaluation. Problems today lie with a flood of norms resulting from an quantitative surge in legislation. The quantitative surge in legislation has its positive aspect in that the surge may eventually lead to enhanced legislative quality, but a merely quantitative surge with no enhanced quality sucks up tremendous national energy put in legislation procedures and excessive regulation coming from a flood of legislation causes inconvenience to our daily life. To prevent these harmful consequences, Germany started to discuss legislation evaluation as a means of securing "better enactment" around the end of 1990, among whose major contents are first, prevention of flooding norms & excessive regulation, second, enhancement of efficiency via political adjustment & intervention, and third, preparation of institutional gadgets against the side-effects & expenses unintended by pertinent laws through policy-deciding procedures. Through these discussions, the nation's Federal Parliament passed「The Act on Installation of National Norms Control Committee」 intended to dismantle bureaucracy & secure better legislation' in 08. 2006, thus specifying legislation evaluation by the Committee as an institution. The Committee has reaped huge outcomes in terms of calculating administrative execution costs, measuring the current balance, cooperating with the federal government for administrative simplification, internationally collaborating for nullification of restrictions and etc. Further, it got to have not only the function of evaluating legislation but also the function of controling the parliament's legislation by enlarging the scope of its authority to reinforced measurement of administrative execution costs, bestowment/ evaluation of valid period, review over feasibility of methodologies, prior review of the federal parliament's legislation and etc. In our case, we don't have prior control methods like Germany's National Norms Control Committee, but only have specific norms control via post-event constitutional trials. Though laws made by the congress are evaluated, the evaluation takes place after laws are enacted. Though an optimal alternative is drawn out via legislation evaluation, it has low effectiveness since it will remain as a mere discussion unless it gets revised by the congress again. Accordingly, our case also necessitates building up a system for national norms control that will guarantee the effectiveness & practicality of legislation evaluation. In this regard, the roles & outcomes of German National Norms Control Committee mainly carrying out review over administrative costs of all legislations & nullification of restraints bear much implication to us.
  • 22.

    A Study on the certification system for good travel Program

    Shin, kang Hyun | 2015, 68() | pp.543~566 | number of Cited : 0
    Abstract
    Travel industry in Korea has growed quickly in quality and quantity since the liberalization measures. However, some travel agents and copy the travel services and packages developed and offered by other agents. This has caused the disturbance in the structure of distribution. For this reason, it is essential to introduce the certification for excellent travel services and packages. If such a system is introduced, consumers will have the opportunity to choose the best one available. In addition, it will add in the development of domestic travel industry by acting publicity campaign for excellent services and program both Korea and abroad. There are several steps which must be taken to introduce and effectively settle the certification system for travel program. First, an method of assessment should be reconstructed. This method should be understood by travel agents and consumers. Second, the government should give incentive to travel agents which develop good travel program. Third, the government should be careful when they decide the area of application and select committee who will investigate which services and packages are the best. In conclusion, the certification for travel services and packages will make a contribution to increase in the rate of competition among domestic travel agents. In order to maintain this, the government should continuously review travel program and perform quality control and chosen a regular basis.
  • 23.

    A Study on the Death with Dignity Act of The U.S. and the Assisted Dying Bill of the England under the Viewpoint of Comparative Law

    Hiehoun Lee | 2015, 68() | pp.567~591 | number of Cited : 3
    Abstract
    So far our country has no legislation to recognize medical decision for suspension of life for the patient. Our country will have to establish the following contents of legislation of the new medical decision for suspension of life for the patient in the future. First, the death with dignity act of the U.S. and assisted dying bill passed by the Senate of the england, in order to allow for legislation of the new medical decision for suspension of life for the patient at least a patient get a diagnosis from one physician in charge and a doctor of another hospital that terminally ill to die within six months, patients over the age of 18 who can make decisions autonomously as should be able to medical decision for suspension of life for the patient. Next, the physician in charge of the patient will need to wait at least 14-15 more days after the medical decision for suspension of life of the patient. And during that time, the physician in charge of the patient provide information about the different ways to replace the medical decision for suspension of life for the patient or patient enough to psychological counseling, the patient should reaffirm the idea of a medical decision for suspension of life. And it should in order to allow for a medical decision for suspension of life of terminally ill patients without relatives or friends of patients around the at least two witnesses to watch in writing for the netting medical decisions autonomously. In addition, patients should be able to create a new writing for a medical decision for suspension of life or withdrawn, or disposal at any time. And patients should not be forced to enter into a new contract with any insurance instead of the medical decision for suspension of life. And patients should not give damage to life insurance or health insurance and so on without a medical decision for suspension of life. And the physician in charge should be able to refuse a patient's medical decision for suspension of life by their own conscience. Our country must be protected the right to life of the patient by reducing the abuse of a patient's medical decision for suspension of life in the future. And I hope respected a patient's medical decision for suspension of life by self-determination and privacy of patients in our country in the future.
  • 24.

    The National Emergency Right in China

    BAEK YUN CHUL | CHUNG SUNG BEOM | 2015, 68() | pp.593~613 | number of Cited : 2
    Abstract
    The SARS, an unexplained pneumonia, broke out in Asia in 2003. From the disease that occurred in Guangdong in November 2002, it was extended to 29 countries and regions in the world as well as in China until July 2003, reaching 8,098 infected and 774 dead toll. One of the causes of this was the delayed first response by the Chinese government. China became aware of the importance of risk management in the event of unforeseen events, and the maintenance of emergency response and risk management system became an important task of the state. The regulations regarding the emergency were added in the Constitution when there was constitutional amendment in March 2004. From the enactment of the state public emergency response plan, some of the emergency response plans were established and published from 2005 to January 2006. In June 2006, the opinion of the State Council on strengthening emergency response was announced for the goal of its implementation in the 11th five-year plan period (2006-2010), so that the establishment of a system covering each region, industry, and organization; protective measures; improvement of the emergency response; and maintenance of relevant laws and regulations were discussed mentioning 24 specific items. The movement of the subsequent development of emergency response plans was accelerated, amounting to 1.35 million by the end of 2006 and 2.4 million in 2010. In regard to the legal system maintenance, the establishment of the emergency law and the amendment of Constitution were incorporated to the 10th National People's Congress legislative plan. However, although the emergency law was prepared for the enactment, this law was not enacted. Then the emergency response law was adopted in the 29th annual meeting at the 10th National People's Congress Standing Committee in August 30, 2007, with its promulgation in November 1 of the same year. Although individual laws for the individual defense and measures such as earthquakes and floods were established in China, the fundamental law for disaster response and recovery was not determined yet. The emergency response law is not only for natural disasters, but is the basic law for the emergency including natural disasters. In this paper, the emergency measure planning is introduced around the provisions of the Constitution relating to emergency state, the overview of the enactment of emergency response law, and the state plan related to natural disaster relief emergency response.