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2015, Vol.71, No.

  • 1.

    Eine Untersuchung zur baulichen Entwicklungsgenehmigungen

    Jonghyun Seok | 2015, 71() | pp.1~37 | number of Cited : 3
    Abstract
    Diese Abhandlung beschäftigt sich mit der baulichen Entwicklungsgenehmigungen in Korea. Das Gesetz über die Planung und die Nutzung des Landes schreibt(abgekürzt: "GüPuN") vor, wenn man baulichen Vorhahaben unternimmt, eine behördliche Genehmigung zu erteilen haben muss. Die baulichen Vorhaben umfasst die Gebäudebauen, die Errichtung der baulichen Anlagen, die Änderungen durch die presidentialen Verordnung zu regeln ist. Danach soll die Behörde die Genehmigung sowie die Änderung der Genehmigung erteilen, wenn der Genehmigungsantrag dem gesetzlichen Massstäb entsprechend zu beurteilen ist. Die Genehmigungsbehörde soll innerhalb 15 Tage(wenn es von der Beratung durch Stadtplanungskomitiee oder mit betroffenen Behörde die Abstimmung braucht, diese Beratungszeit oder Abstimmungszeit nicht eingeschlossen) nach dem Genehmiungsantag die Genehmigung erteilen oder nicht.der baulichen Nutzung des Boden und Grundstücks sowie die Nutzungs von Boden, Sand sowie Steine usw. § 58 Abs. 1 GüPuN schreibt vor, der allgemine Massstäb für die baulichen Enwicklungsgenehmigung, während die nähren Massstäb Allerdings wurden der Massstäb unbestimmer Rechtsbegriffe vorgeschrieben. Daher hat die Behörde die Spielräume für die Beurteilung von der unbestimmen Rechtsbrgriffe. § 59 Abs.1 GüPuN schreibt vor, dass die Behörde einigen Fällen nach § 56 Abs.1 Nr. 1 bis Nr. 3 GüPuN die Beratung durch Stadtplanungskomitiee einholen muss, wenn die betroffenen Behörde die Genehmigung erteilen will oder nach der anderen Gesetze die Abstimmung vornehmen soll.Die Genehmigungsbehörde erteilt die Genehmigung mit der Auflage. Diese Auflage ergänzt den baulichen Entwicklungsgenehmigung durch eigene Sachreglung. Sie verpflichtet den Begünstigsten zu einen bestimmten Tun, Dulden oder Untelassen, enthält also ein Gebot. Nach § 57 Abs. 4 GüPuN kann die Behörde die Genhmigung mit der Auflage erteilen, während die Behörde vorher die Stellungsnahme des Antragsteller zu hören hat. Diese Auflage verpflichtet dem Antragssteller, dass er die städtbaulichen Einrichtung zu errichten oder die Verfügung yum notwendigen Bauland, zur Gefahrabwehr, zur Abwehrmassnahme gegen Umweltverschmutzung usw. Diese Auflage soll verhältnissmäassig sein.
  • 2.

    A legal review on public development in the housing regeneration project

    Lee,Heon-Seok | 2015, 71() | pp.39~61 | number of Cited : 1
    Abstract
    Public development is one of the key elements of the comprehensive land use planning system in Korea. The policy goal of the government land development is to prevent the capital gains on land development to be concentrated on a few land owners and to promote a systematic and prudent land development. The public housing development project has reached its goals in terms of providing housing to citizens but there is still a lot of work to do in terms of improving the welfare of housing of people and securing indirect social facilities on "the urban and residential environment maintenance law". Therefore, guidelines and regulations on appropriate residential density that take into consideration factors. This is why it is necessary to analyze the public housing development project. Through this research I have made an effort to legal review the problems and the legal issues of public housing development project. First, it is urgent to develop fund raising strategies for the initial stage of the project in order to take off independent preparation of the project. Second, it is necessary for their representatives to upgrade their commitment to the project and being knowledgable, which saves project costs and lessens conflicts among members of the association. Third, it makes sure that consulting companies should be operated professionally, keeping their abilities superior to residents and housing builders. Fourth, public announcement of the decision-making should be delivered very clearly. It is also important to use proper process and criteria for the selection of housing builders and other parties. Fifth, it is necessary to educate persons of associations on the regular basis, which enables them to have their own judgement for the project. If possible, providing national licensing to them is another answer for lessening project corruption. Finally, clear accounting system should be adopted to avoid embezzlement of association funds.
  • 3.

    The possibility for Relief of rights from designation of green belt

    Jeong Hoe Gun | 2015, 71() | pp.63~82 | number of Cited : 2
    Abstract
    A law for green belt is national land planning and utilization act and act on special measures for designation and management of green belt. These acts are to prescribe necessary matters to designate and cancel the green belt, to restrict activities performed in green belt, to provide support to residents in development restriction zones, to purchase land, and to efficiently manage green belt. There are the controversy that it is whether the act to designate the green belt has disposal characteristics, that it is whether the act to designate the green belt has general abstract canonicity for the inhabitants in the zone, as a green belt is one kind of the urban․Gun management planning. If consider it at the side of the administrative legislation, there is a problem to cannot lay formal complaint against that on an existing law. And there is a problem whether shall take it as the disposal of what kind of form, even if consider it by disposal. Therefore, it will have to be taken as disposal so that it receives relief by administrative litigation in a current system. Development is prohibited in principle in the zone, if appointed in a green belt, but the exceptional development is accepted only as permission or a declaration. When a development restrictions zone does not come true in the designated standard of the development restriction zone, this can be adjusted and can be canceled. Such a designation act and the cancellation act of designation bring effects to remove a limit or to limit the property right of the nation. Therefore, administrative litigation can be stated at this time. However, it is difficult to receive relief by administrative litigation even if the property right event of the nation is subject to a limit by designation and the cancellation of the development restriction zone because an application right for adjustment and the cancellation is not prescribed on an existing law for the inhabitants in the green belt. In addition, it is difficult to solve the damage of the property, because there is no the compensation for their loss. Generally, the acts of green belt not to protect personal profit, are aimed only for protection of the public benefit, and standing to sue is not accepted. However, if the property right of the nation is limited by the designation of the development restriction zone and cancellation and special sacrifice depends on a property right, can be state cancellation suit to cancel designation through administrative litigation to the landowner of the development restriction zone, and the right that can be proposed cancellation must be recognized. In addition, what kind of remedy will have to be derived to be able to receive loss compensation.
  • 4.

    A Study of the disputed points on the detached house complex reconstruction project in the viewpoint of the Korean public law

    OH, JUN GEN | 2015, 71() | pp.83~106 | number of Cited : 2
    Abstract
    Housing reconstruction projects implemented to improve residential environments in the area wherein rearrangement basis facilities are good, but the worn-out and inferior structures are concentrated. This project aimed to construct new apartment complexes. It is based on the removal of existing worn-out apartment complex structures, but includes removal of detached houses and multi-family houses. There happened so many legal disputes surrounding the detached house complex reconstruction projects in the Republic of Korea. This paper is planned to set a typical case in this matter, to arrange the legal problems and to suggest the measures of legislative improvement. The first discussion point in this paper was the fundamental question whether the detached house complex could be the object of the housing reconstruction project according to the Korean administrative law; Act on the Maintenance and Improvement Of Urban Areas and Dwelling Conditions For Residents. Because the basic condition for the housing reconstruction project was not regulated in this act and it is comprehensively delegated to the enforcement decree, it is not in harmony with the Korean constitutional principle. The next discussion point was the urban planning system about the housing reconstruction project of the detached house complex. A master plan for urban and residential environment rearrangement should formulate every ten years. A rearrangement plan should be formulated to the extent compatible with a master plan. The legal character of the mater plan and the rearrangement plan and the lawsuit measures against them was analysed in this paper. The last discussion point was the possibility of the participation of the detached house owners to the planning process. The Act on the Maintenance and Improvement Of Urban Areas and Dwelling Conditions For Residents regulated that the head of the city shall hold an explanatory meeting for residents after giving written notice to residents thereof, make the rearrangement plan available for the residents for at least 30 days and gave the owners of detached house the right of the proposal of a rearrangement plan and of a cancellation of the designation of rearrangement zone. These regulations were targeted to maintain the basic frame of the master plan and rearrangement plan, to develop successively and to change the worn-out structure to the new constructed apartment complex. There are few room for the minor opinion for the maintenance of the detached houses. The legal problems of the regulations of the participation was arranged, and the measures of legislative improvement was suggested in this paper.
  • 5.

    Stadtentwicklungsrechtliche Probleme des Privatinisiative durch Business Improvement Districts

    Kil Joon Kyu | 2015, 71() | pp.107~130 | number of Cited : 0
    Abstract
    Durch die Industriellen Revolution werden traditionelle Städte in meistenen Industrieländern sehr schnell entwicklet und urbanisiert. Aber urbanisierte Städte sind allmählich nach der Zeit veraltet und bedürfen einer Erneuerung und einer Stadtsanierung. Zur Zeit wurden Shopping mall und super supermarket auf der grünen Wiese ausserhalb der Städte großzügig gerichtet und deshalb wurden traditionelle kleine Geschäfte in der Innenstadt nicht wohl beschäftigt, sogar bedroht ihre Überleben auf dem Wettbewerb mit denen. Zur revolutionellen Erneuerung der alten Innenstadt wurde Business Improvement Districts (BID) zuerst in Amerika gerichtet und ziemlich erfolgreich sein. Aus diesem Grunde wurde es auch in Deutschland durch die Gesetzesänderungen von BauGB und Landesgesetzen schnell eingeführt und war auch ziemlich erfolgreich. Aber ist es vielleicht eine Herausforderung auf die öffentliche Stadtentwicklung im traditonellen Stadtentwicklungsrecht. Deshalb wird in vorliegender Arbeit das deutsche System von Business Improvement Districtssorgfältig analysiert und konkret berichtet. Schließlich werden Probleme von Business Improvement Districts aufgrund des Stadtentwilungsrecht rechtlich beachtet.
  • 6.

    The improvement measures for the current urban development legislations

    SUNG, JOONG TAK | 2015, 71() | pp.131~154 | number of Cited : 2
    Abstract
    The purpose of this study was to examine what urban living environment maintenance techniques required for our country through this after reviewing the suggestions we receive through the relevant institutions and practices of the developed countries for the city maintenance projects. First, the urban regeneration projects being discussed as a new paradigm in the recent. Urban Regeneration project is not separate systems the reconstruction and redevelopment. I emphasize that maintenance techniques to supplement. Furthermore, the preferred form of Urban Development, as well as improving the physical environment, its inhabitants and the local ecological environment and inbound will be made future-oriented planning considering the cultural aspects, the intervention of the public too stressed from the current Urban Development Legislation for this purpose is discouraged, but rather, maintenance planning steps from residents and civilian experts may need to be switched in the direction of actively participating. In other words, as the next city maintenance projects choices and political rights are guaranteed resident-led business model of local residents, public intervention and support is desirable to focus more on infrastructure construction and maintenance business transparency surveillance. Finally, an efficient city government has been pointed out as a propulsion system maintenance problems of business and local government departments business support policy of redundancy, which is currently scrambling to different legal systems in order to improve the cross talk problem, city maintenance related laws to system integration Justification. This amendment, which must be necessary, install a single city maintenance and reproduction businesses through direct integration headquarters of the president or prime minister's office and requires them to establish it as a center of local government and local government departments and propulsion system of the maintenance business closely linked to each other inhabitants that was claimed.
  • 7.

    Untersuchung zur Rechtsprechung des Verfassungsgerichts und des Obersten Gerichtshofs und zur rechtspolitischen Aufgabe im Hinblick auf die Enteignung zugunsten Privater - Mit besonderer Rücksicht auf die sog. gemeinwohlverträglichen Sportanlagen -

    Sung-Soo Kim | 2015, 71() | pp.155~178 | number of Cited : 6
    Abstract
    Nach der Entscheidung des Verfassungsgerichts wurden die Sportanlagen, die im (Landesplanungsgesetz; LPG) als Enteignungsanlagen geregelt sind, zwar nach seiner Änderung begrifflich näher konkretisiert. Es schweigt jedoch dazu, was man eigentlich begrifflich unter den ‘gemeinwohlverträglichen’ Sportanlagen zu verstehen hat. Bei der Gesetzänderung hat sich der Gesetzgeber lediglich damit begnügt, indem er in § 2 Nr. 6 LPG vor dem Begriff der Sportanlagen das Adjektiv “gemeinwohlverträglich” zufügte. Mit anderen Worten werden die Art und der Umfang der Sportanlagen, die auch Enteignungen zugunsten privater Golfanlagen erlauben, in der Rechtsverordnung des Land- und Verkehrsministers (Rechtsverordnung für die Errichtungsrichtlinie und Strukturen der Bebauungsanlagen) geregelt. Merkwürdigerweise bestimmt diese Rechtsverordnung die Art und den Umfang der Sportanlagen aber selbst nicht und überlässt es dem Sportanlagengesetz. Dies ermächtigt wiederum den Staatspräsidenten, durch Rechtsverordnung die Art und den Umfang der Sportanlagen zu konkretisieren. Durch dieses Regelungslabyrinth von Gesetzen und Rechtsverordnungen wird dem Einzelnen, insbesondere dem Eigentümer überhaupt keine Berechenbarkeit und Voraussehbarkeit zur Enteignung gewährleistet. Dadurch werden das Bestimmtheitsgebot und ferner das Rechtsstaatsprinzip verletzt. Damit ist auch nicht diese derart umfassende Ermächtigung erledigt, die das Verfassungsgericht wegen Verletzung des Art. 75 (K-VG) mit der Verfassung als unvereinbar erklärt hatte. Das widerspricht auch der Wesentlichkeitstheorie. Hierbei handelt es sich ursprünglich nicht bloß um die Begriffsregelung der Sportanlagen an sich, sondern um die gesetzliche Grundlage zur Enteignung der Bebauungsanlagen, bei denen auch Sportanlagen in Betracht kommen. Rechtspolitisch hat der Gesetzgeber die Art und den Umfang der Sportanlagen im Sportanlagengesetz selbst zu regeln, das dafür unter hinreichend bestimmten gesetzlichen Voraussetzungen auch Enteignung zugunsten Privater erlaubt. Dabei kommen die materiellen Abgrenzungskriterien des Obersten Gerichtshofs in Betracht, der durch seine dreimaligen Entscheidungen im Jahre 2013 entwickelt hat.
  • 8.

    A Study on the Unconstitutionality of the Acts Governing Large-scale Urban Development Projects

    Kim,Jong Ha | 2015, 71() | pp.179~206 | number of Cited : 4
    Abstract PDF
    In the midst of such social and economic change, a seemingly contradictory phenomenon is taking place: the scope of public projects and public necessity is gradually expanding. Providing legal justifications for monopolistic pursuits of private interests by the capital despite the aforementioned change poses the risk of violating the spirit of the Constitution, and infringing upon the fundamental rights of South Korean citizens. Therefore, the related Acts need to be revised as follows. Firstly, the unclear texts used in Acts governing the scope of public projects introduce the possibility of arbitrary interpretation and discretion by those who enforce the Acts. Such interpretation and discretion would be unconstitutional, especially since the core of the Constitution lies in the rule of law. Therefore, the principle of clarity of law must be maintained when regulating the scope of public projects. Secondly, when deeming a project as recognized, the Acts need to require procedures corresponding to the project recognition procedures, to ensure the objectivity of project recognition. Such project recognition constitutes an individual․ specific disposition. Therefore, prior notification, notice of disposition, and other measures related with the deeming procedures need to be prescribed by the relevant Acts. In addition, the Acts should require such deemed recognition to go through opinion gathering at local councils and review/resolution by land tribunals, so as to ensure the objectivity and legality of project recognition. Thirdly, consent procedure can be regarded as a means to retain the public aspect of a private project. However, the consent procedure for expropriation method undermines the predictability of right holders, because they are required to consent without being briefed on the plan for compensation. Therefore, when holding a public display or public briefing for designation of an urban development zone, a compensation briefing needs to be held under the supervision of the person with the authority to designate such zone, so as to promote the predictability on the part of the right holders. Fourthly, under the Urban Development Act, reference dates for inhabitants migration measures are prescribed by directives. However, a reference date is a crucial criteria for determining whether a person is subject to a migration measure, and therefore affects the property rights of all citizens. Prescribing such critical dates through directives, without delegation from an Act, is unconstitutional. The dates must be prescribed by the relevant Acts. Fifthly, Although it would be impossible to apply the same migration measures to all projects, the relevant Acts need to reduce the scope of the discretion of the project undertakers and ensure the objectivity of the projects, by defining the criteria for establishing migration measures and the methodological principles, and providing for the establishment of councils consisting of inhabitants and experts to ensure proper establishment of migration measures.
  • 9.

    Legal Issues Over Expropriation by Private Persons

    Eunhye Jang | 2015, 71() | pp.207~226 | number of Cited : 5
    Abstract
    Following the Constitutional Court decision, private corporate is allowed to compulsorily expropriate under certain conditions by exercising the right of eminent domain which is ensured by the Constitution. Even though there is no legal issues over the fact that a private person could expropriate land under the constitution ‘public interest’, which the private owner insists for the reason of expropriation, might not be recognized as ‘public need.’ Despite the fact that a private person is recognized as the subject of eminent domain under the law, it should not invested the right of expropriation if it is not satisfied the requirements of ‘public need’ which is equivalent to a public work by the government or authorities. Not investing a private person the right of eminent domain does not lead to measures infringing interest of the person in question, for example, prohibiting a private person from doing public work as a whole or tightening regulations. More specifically, a private person’s right of expropriation, for the purpose of building a high-end golf club, is not recognized, it does not mean prohibiting or regulating any construction of golf club. Without expropriating land, a private person could by land he/she needs through deals with private land owners. The main purpose of eminent domain is so-called necessary evil measure which is only allowed for public interest prevailed under inevitable circumstances rather than ‘efficiency’ of expropriating land for public work. The concept and limits of expropriation by a private person should be defined within the scope of eminent domain because there is no difference in taking land by the government or by a private person when it comes to essential contents of expropriation such as subjects, procedures, expected effect and so on. In addition, expropriation by a private person is not different from it by the government considering the fact that expropriation is carried out against will of a private owner for the purpose of public need even though payment usually being made to the owners in compensation. Essentially, public or private expropriation is determined by the subject who takes land so that there should be no difference in contents and purpose of expropriation regardless of the subject. If the extent of public interest is exaggerated or fundamental purposes of allowing he/she to expropriate are undermined by private person who takes land, it amounts to illegal taking, as a result expropriation should be banned. A private person is invested with the right of eminent domain only when public need is recognized and then the public interest, which is intended to be realized by carrying out the work and expected to be kept. If a private developer, invested with right of expropriation and taking lands of others, only focuses on his/her own profit seeking and does not place much importance on public interest which was expected to be realized by the work or the government fails to prevent misusing the system of expropriation by the private person in advance, expropriation by a private person might become an unjust ways of the government to take something from the weak and give it to the rich. Eminent domain is a government power which entails compulsory taking, the government shall well place expropriation by a private person with systematic measures so that justification of exercising its power. Therefore, measures to realize public interest in expropriation by private persons might be a tool that it has the same effect of eminent domain by the government or authorities.
  • 10.

    A Study on Standardization of Cost Items to Estimate Optimal Costs in Housing Redevelopment Projects

    홍성철 | KANG JEONG GYU | Bumung Lee | 2015, 71() | pp.227~244 | number of Cited : 0
    Abstract
    This study proposes an estimated share of expenses according to segmentalized expenditure factors as a result of the working expenses of clean-up systems in many regions including Seoul, an added share estimation program, and etc. However, there was limitation in judging the propriety of projected costs due to the union members only being able to verify the data of the corresponding area. In order to solve these issues, an appropriate estimation of necessary expenses can be calculated when establishing management and disposal approval by standardizing the expense clause that occurs in the process of promotion of housing redevelopment projects. Hence this study proposes a standardized expense clause by comparing and analyzing the estimation clause of maintenance businesses by city and province as well as the enforced regulations of residential environment maintenance officiates, and the expense clause according to the Seoul working expense estimation program, with the expense clause per area in regards to the 12 areas in the research subject area Seoul, and the 17 areas in the provincial city.
  • 11.

    An improvement plan on the Supply and Management of Public Rental Housing

    Lim, Suk-Nyeo | 2015, 71() | pp.245~265 | number of Cited : 12
    Abstract
    In order to guarantee the right to housing of low-income families and the socially disadvantaged Public rental housing scheme is scheme to supply rental housing which government or public institution is inject public funds. The ultimate goal is to seek the stability the National dwelling life, and problem in order to achieve that goal is price stability, the mass dwelling construction and supply of the housing. The aim oriented policy that was promoted for quantitative expansion was generated various problems in the situations that could not be sufficiently secured. Housing poor is marginalized in policy, because severe residential difference between hierarchy, a quite a large number of low-income families live still in the housing of minimum housing standard substandard. A quite a large number of low-income families In come, is very high in importance of housing costs and household burden. therefore housing problem still remains circumstance which must be resolved. Therefore, this study tries to problem and improvement plan about the supply and management of public rental housing to solve housing problems for low-income families. First, it is necessary to ensure proper inventory of public rental housing in order to increase the efficiency of various residential welfare policy. It is necessary to supply the public rental housing the quantitative demand by proximity not only in the foundation. Second, there is a need for a fundamental system of land for the public and ensure financial resources available for ensuring proper inventory. Third, simplify the eligibility and complex tenant selection procedures to minimize the blind spot of the policy and there is a need to expand the beneficiaries and shall operate the current unifying the rent system flexibly, taking into account the individual's income level and affordability Fourth, increase the useful life of public rental housing requires a comprehensive management plan for long-term maintenance plan necessary repairs to the facility management and maintenance. Fifth, provide ways to prevent illegal sublease and the tenant of care is needed. Long-term perspective must be able to account for equality and social issues, including at the same time significantly increasing the supply of public rental housing, including permanent housing to enlist some of the populace and the middle class. Currently, Korea's housing policies must be promoting a consistent policy to expand the involvement of the state and also need to diversify the types of public rental housing. because South Korea's housing policy is partly involved in the housing market, but the role of the public sector because it is limited.
  • 12.

    A legal study on the internet network from the viewpoint of public law - regarding network neutrality -

    KANG, HYUN HO | 2015, 71() | pp.267~295 | number of Cited : 3
    Abstract
    We are now living in a world, in which it is very difficult to live without internet access, and in this information society internet network has become the core infrastructure. The Internet network performs the functions necessary to guarantee the basic human rights and life necessities to the internet users. The problem lies that the conflict among the people concerned on internet network such as the ISP, ICP and other network users increases consistently, because the traffic of the internet network is increasing and the maintenance fee and management cost are also exploding. From the viewpoint of public law the internet network and its traffic has closely related to the fundamental human rights of the users, even if the installation and management of the internet network are performed by the private corporation. The internet network can be characterized as a governmental property. The problem of the internet network neutrality, which is related to access or usage of the internet network, should be distinguished from the problem of the distribution or control of the internet network traffic. Since the installation and management of the internet network is the public service, and therefore the principles of the public service such as the principle of equality, the principle of continuity and the principle of adaptation will be applied to them. From the aspects of public service regarding installation and management of the internet network and under the premise that it costs in order to increase the internet network traffic, it should be possible to handle differently within a reasonable range those who use the internet network. ISP and ICP which provide the end users with a variety of information function as private corporation loaded with a public service, and therefore they are subject to the public law directly. The internet network is limited, therefore the fair relationship between the network usage and its cost should be established, so that the problem of the tragedy of the commons may not happen. Considering the enactment of laws in Korea regarding especially the important Electric Communication Business Law, the installation and management of the internet network are defined as public service, and our laws are not oriented to the network neutrality in the absolute meaning, but to the network neutrality in the relative meaning through disclosure of information, transparent network management and guarantee of appropriate quality of the internet network.
  • 13.

    Cloud Computing Service and Personal Information Protection

    Kwon, Hun-Yeong | 2015, 71() | pp.297~312 | number of Cited : 1
    Abstract PDF
    Changes of new information technology increases social use by making use of information more convenient while improving access possibility of information. On the other hand, side effects stemming from information technology often go so far as to social controversies beyond conflicts between interested parties. The systemic controversy structure in our society due to technology developments is relatively simple. The core is whether new legal actions are needed or not in step with technology developments. In most cases, conflict structures where positions and rights of the rightful person and subjects of benefits are threatened by technology developments. In addition, discussions that active legal actions are needed as the easiest solution for these conflicts are brought up. However, this article starts from a question if active legal actions in tune with technology developments are necessary. Researcher of this article thinks that there is a need of careful review on whether use of technology or its value is lost in the process of conflicts and legal actions for technology developments and this corresponds to our spirit of the law. In this point of view, this research examined the cloud computing service that is getting attentions recently, legal concerns and conflicts and direction of actions in terms of personal information protection mainly.
  • 14.

    A Study on Shift in Japan’s Nuclear Policy and Future Challenges

    Jang Kyo-Sik | 2015, 71() | pp.313~334 | number of Cited : 2
    Abstract
    This year, there have been heated dispute and debate over a nuclear power plant. In fact, nothing has been easy including the shutdown of KORI-1 and nomination of a candidate site for a new nuclear plant due to strong resistance from the locals. In Japan as well, there was a fierce dispute over nuclear power since the Fukushima disaster. Despite a shift in nuclear policies, the conflict still exists. Therefore, this study investigated the current status of nuclear power generation and plant in Japan and reviewed shift in Japan’s nuclear policies since the Fukushima nuclear accident. Then, the implications of the development of nuclear power and its policies and solutions were searched. In particular, changes in Japan’s nuclear power systems have a significant implication on the Republic of Korea in that South Korea’s nuclear act is developed based on Japanese and U.S. laws. After going through diverse disasters such as radiation leaks from nuclear power ship ‘Mutsu,’ JCO criticality accident and Fukushima nuclear accident, Japan’s nuclear policies have been amended and improved repeatedly. We also need to review our nuclear policies because we are as heavily dependent on nuclear energy as Japan. In addition, Japan’s policy to nurture nuclear power companies and industries by restarting nuclear reactors could be a threat and opportunity to our companies and industries. Therefore, it is important to closely watch the trend of related industries. Meanwhile, Japan’s nuclear administrative procedures are systematic and well organized from the selection of a nuclear site to its shutdown. Since a nuclear accident can be catastrophic once it occurs, strict control and supervision are essential. In other words, thorough administrative regulations are required as well. Whenever corruption over nuclear scandal is reported, therefore, we become very concerned about the control and supervision of nuclear power. From this aspect, Japan’s nuclear power control & supervision system could be a good example for us. In addition, it is important to look for diverse ways to accept public opinions to calm people’s anxiety ad concern. In Japan, whenever a large-scale accident takes place, citizens’ thoughts were heard through the repetition of a session. In addition, there have been a debate on major controversies, and a revised draft has been submitted. This kind of acceptance of diverse opinions in Japan sends a meaningful message to the Republic of Korea where key issues are discussed among few experts and high-rank officials only. Because technology-engineering and socially valuable issues are handled in a nuclear power sector, a scientific ground is derived by forming a mutual consent and empathy among experts. Then, a social consent should be obtained in a way to maximize democracy, rationality and efficiency in making a social decision.
  • 15.

    Study on the Reasonable Improvements of the Environmental Tax

    Chung, Ji Sun | 2015, 71() | pp.335~359 | number of Cited : 2
    Abstract
    Environmental tax is generally divided into ‘energy taxation’ for energy goods, ‘automobile-related taxation’ for transportation including automobiles, and ‘other taxation’ for wastes and natural resources. In Korea, energy taxation includes transportation, energy and environment taxes. Automobile-related taxation includes automobile tax. Other taxation includes environmental charge which is similar to tax. On the other hand, approximately 90% of the greenhouse gas is composed of carbon dioxide produced by using the energy in Korea. It is required to enhance the long-term policy to reduce carbon dioxide emission in order to reduce the greenhouse gas. It is necessary to further strengthen the policy of the expansion of renewable energy such as solar or wind energy to reduce the dependence of nuclear energy. As energy-related tax is not substantially friendly to the environment in Korea, it is required to reform energy- and environment-related tax reflecting the carbon reduction as much as possible. In addition, as the costs for pollutants have not yet been accurately reflected in standards for taxation, social damage costs caused by environmental pollution are not reflected in the market price structure. Therefore, a full-scale review of existing environment-related tax should be made with consideration of combination of environmental policy measures to respond to climate changes. Based on this, it is necessary to present a policy road map for eco-friendly taxation such as introduction of carbon tax. Specifically, it is reasonable that transportation, energy and environment-related tax should be charged as the individual consumption tax. Automobile tax should be charged on the basis of fuel consumption rate rather than engine displacement volume. It is necessary to efficiently reduce the greenhouse gas through carbon taxation. In addition, it is required to integrate environment-related charges to environment-related taxation, because it has the same purpose. It is desirable that charges similar to the taxation should be integrated into the tax system.
  • 16.

    A Study on the Infringement of Children's Rights in Child Welfare Facilities in Accordance with the Child Welfare Act

    seon eun ae | 2015, 71() | pp.363~388 | number of Cited : 7
    Abstract
    A child welfare institution refers to a facility run by the national government, a local government or private organization to offer social welfare services to improve children's quality of life to ensure their welfare and safe, happy growth. In the child welfare act, a child is defined as a person who is under the age of 18. Therefore people under 18 are allowed to dwell in child welfare facilities. As a matter of fact, those who are under 18 are minors according to the civil law, and those under 14 are criminal minors according to the criminal law. Children's rights should be guaranteed both legally and institutionally, but several recent cases show that their rights are actually infringed without being properly protected. Although all the national and local governments and the private sector are obliged to help children to grow happily and safely, there are mounting cases to violate children's rights in child welfare facilities. In fact, the infringement of rights that happens in these facilities is scarcely exposed, and the facilities themselves try to resolve this problem. Moreover, there are neither any hiring regulations for child welfare facilities nor any legal requirements or evaluation criteria for the qualifications of their employees. So it's possible for job seekers to be employed if they just meet formal certification requirements, or each welfare center hires employees in their own way. So a person who isn't qualified enough to work for a child welfare institution is likely to infringe on the rights of the children who dwell in the institution. As this fact has something to do with the phenomena that children's rights aren't protected in child welfare facilities, it's important to prevent children's rights from being violated, and the relief of their rights is necessary if their rights are violated. Every child welfare institution must be compelled to provide preventive education for every employee not to violate children's rights to guarantee their rights and improve their welfare. In addition, accurate guidelines and regulations should be prepared about employee qualifications instead of allowing these facilities to judge by their own standard only. Finally, how to provide a variety of quality services for children whose rights are violated should carefully be considered.
  • 17.

    Recht auf Wasser und Kosten der Wassernutzung

    Kim, Hyun Joon | 2015, 71() | pp.389~416 | number of Cited : 5
    Abstract
    Das Recht auf Wasser ist zwar oft in der Literatur behandelt, aber in den positiven Regelungen hierzulande kaum zu finden. Da die klare Begriffsbestimmung eine notwendige Voraussetzung für die Analyse des Themas ist, beginnt die vorliegende Arbeit mit der Bestimmung des Rechts auf Wasser. Unter Recht auf Wassernutzung versteht man das Recht, das man ständig ein Teil von den öffentlichen Gewässern für bestimmte Zwecke wie Landwirtschaft, Industrie, Haushalt, Umweltschutz usw. benutzen kann. Auf der Basis dieses Begriffs befasst sich die vorliegende Arbeit mit folgenden Punkten; -die Vielfalt der Umweltbegriffe beim Problem der Finanzierung der Wasserversorgung - die Natur des Wassers als ein Teil der Umwelt. - die Verschiedenheit der Träger von Wasserrechten - Ansatz des sog. Verwaltungsprivatrechts betreffend die Wasserrechte - Koordinierung von öffentlichen und privatlichen Rechten auf Wasser -das Verhältnis des Rechts auf Wasser zur verfassungsrechtlichen Garantie der Selbstständigkeit der kommunalen Selbstverwaltung.
  • 18.

    The Annotation of the Unconstitutional Decision against Criminal Conversation of the Constitutional Court

    Hiehoun Lee | 2015, 71() | pp.417~444 | number of Cited : 2
    Abstract
    The constitutional court of our country decided to be unconstitutional for a criminal conversation punishment rule in the criminal law by 2009HunBa17ㆍ205 etc decision in 2015 after an interval of 62 since it was prescribed for the first time on September 18, 1953. It is proper in the following reason that constitutional court decided to be unconstitutional in a criminal conversation punishment rule in the criminal law in 2015. The first, adultery belongs to privacy. Therefore, it is proper to solve an adultery problem for autonomous intention of a couple in essence of the privacy right. Accordingly, a criminal conversation punishment rule in the criminal law limits freedom of the private life so as to be over and is unconstitutional. The second, a lot of overpowering of the people of our country do not think with big evil only breaking it by adultery of a spouse in our society. And detective punishment for adultery demonstrates it, and there is little a general prevention effect and a special prevention effect. Therefore, it is not necessary to regulate adultery in the criminal law. The third, It does between couples badly if it comes to punish it for adultery and end family relation early. And It makes all one to an ex-convict among a parent and couples and let serious do it is a new soul and though a spouse constitute a family. And a divorce must be able to leave a premise if It is going to charge the companion who committed adultery in a criminal conversation, Therefore, It let you dismantle the existing marriage and family through a divorce if it punish adulter. Therefore, it is unconstitutional it is a constitutional soul to punish for adultery and it cannot protect the family system. The fourth, The rules of criminal conversation in relation to right to sexual autonomy must protect the protection benefit of the criminal conversation by a property distribution right of claim, the right to demand compensation for damage and the right to alimony or the limitation or exclusion of visitation right of children in the civil law or a claim for damages by illegal behavior that is not criminal punishment. Therefore, the rules of criminal conversation will be said to be an unconstitutionality rule to infringe a personal right to sexual autonomy in violation of a principle of balancing test. Only it can sentence by adultery of a spouse of law to a system of conditional release for a weak adultery act. When there are a few amounts of money of fine punishment for adultery, there are little general prevention and a general prevention effect and a special prevention effect. And what it prescribed only by penal servitude punishment in a criminal conversation rule in the criminal law in a reason it does not intend, and to be able to give a partner spouse of the spouse who did an adultery act the damage of big property is proper when an amount of money of fine punishment is excessive.
  • 19.

    Policy improvement on the convergence revitalization of the information and communications technology for industrial development

    lee jae sam | 2015, 71() | pp.445~471 | number of Cited : 2
    Abstract
    The convergence of the information and communications technology which is currently becoming an issue is a new growth engine in the future available in all industries. It is connected to each core technology of industries which satisfies demands, and is applied to the social life which creates infinite, new values. Especially it is making contributions to national development as the driving force of industrial development. The information and communications technology, however, is causing not only legal issue, but also various problems in real life. Firstly, sustainability of the ecosystem of the information and communications is limited. Storing and transferring the information and keeping the ecosystem healthy in the IT field are regarded as an essential element. However side effects which information and response processes are not systemically organized depending on changes in the external environment (e.g, regulations and controls) begin to emerge. Secondly, creativity of IT companies and formation of market-oriented wills are scarcity. Government’s unnecessary regulations and interference in the ICT industry cause limits to not only companies and the market, but also formation of private market-oriented wills. Such extreme interference and regulations may ultimately lead to stopping the operations of companies and contracting the national economic, and so forth. Thirdly, the polarization of conglomerates and small businesses has become more serious economically, environmentally. Especially small businesses’ lack of negotiating power results in not only undermining the foundations for growth, but also weakening competitiveness throughout major industries. It also creates exclusive and subordinate relations between conglomerates and small businesses, thereby leading to difficulties in attracting various clients or lack of autogenic power. Fourthly, entry into overseas markets remains low. That’s because export procedures are quite complicated and high taxes and below-cost tendering result in dropping the worker pay. Even for exports of government’s e- government, promoting the overall business, establishing and executing strategies, etc are also pointed out as one of the reasons for the failure. Improvement plans against problems arising out of the information and communications technology as described above are shown as follows: Firstly, a complete reversal of promotion policies on the information technology industry is necessary for sustainable growth of the information industry. In other words, principles such as social regulation for the information technology industry, citizen participation, government’s supports for research development and technical innovation are necessary. Secondly, balanced development of the national economy should be promoted through fair competition by creativity of companies, market entry based on economic efficiency, and efficiency improvement of economy by virtuous circle connection of resource distribution. In the IT market, exploring widespread overseas markets rather than limited domestic market is more important. To do this, government’s active encouragement and support are required. Thirdly, setting a foundation of sustainable growth for the national economy by strengthening a win-win relationship between conglomerates and small businesses, increasing their competitiveness, and resolving their polarization are required. Therefore the nation has to set goals and push forward with the policy for a win-win cooperation of conglomerates and small businesses, implement technology and manpower exchange, select and support top cooperative companies, ease income disparity between conglomerates and small businesses, and encourage public institutions to cooperate with small businesses. Fourthly, in order to help IT service companies expand their exports, the government need to actively give enterprise-level support to such companies through provision of information, consultation, advisory, and training, etc regarding export and overseas market in advance. And even for e-government export, enterprises’ needs should be reflected through cooperation and reaction capability with the government organizations. Strengthening negotiating power against the other nation through establishment plan of e-government, consulting of technical support, exchange of e-government’s MOU, and so forth are additionally necessary. In the final analysis, there should be an integrated organization and legislative supplement in the current positive law in order to have a sustainable development of ecosystem for the information and communications technology, promote the creativity, have a mutual growth of conglomerates and small businesses, and expand into overseas markets. Consequently it will help the information and communications technology and enterprises develop as well as expansion of the national competitive power.