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2016, Vol.74, No.

  • 1.

    A Study of Land Use Planning and Public Facilities Policy of Oregon State

    Kim, Sung-Bae | 2016, 74() | pp.1~24 | number of Cited : 3
    Abstract
    Controlling land use and environmental protection in Korea are viewed as a different government regulation so that the plans of land control and environment have not matched at all. Oregon is known for the environmental model of U.S and one of first states adopts statewide land controlling system and urban growth boundaries which is a similar land use regulation (development restriction belt) in Korea. In 1973 Senate Bill 100 established the Land Conservation and Development Commission (LCDC) composed of seven members appointed to staggered, four-year terms by the Governor and confirmed by the Senate to supervise the Department of Land Conservation and Development (DLCD). Urban and rural development shall be guided and supported by types and levels of urban and rural public facilities and services appropriate for, but limited to, the needs and requirements of the urban, urbanizable and rural areas to be served. A provision for key facilities shall be included in each plan. To meet current and long-range needs, a provision for solid waste disposal sites, including sites for inert waste, shall be included in each plan. The more difficult question of interpretation lay ahead. While the goal established infrastructure planning as a priority, it dealt with neither the levels of service to be provided for various uses, nor the timing of infrastructure with regard to development. For forty years, Oregon has combined land use planning with the provision of infrastructure, through the adoption of Statewide Planning Goal 11 and its implementing rules, and through a host of other statutes, goals and rules all tending to assure that the land uses desired by citizens of the state are supported by necessary infrastructure. That relationship is important-- development does not follow from public improvement decisions; instead, public improvements follow from, and reinforce, the decisions to plan for land uses. The types and levels of infrastructure also reinforce the division between urban and rural areas, so that public dollars may be spent more wisely. Moreover, the coordination of the plans and actions of those public agencies responsible for supplying infrastructure allow the state to be more competitive in attracting commerce, industry and employment.
  • 2.

    Legal Analysis on Private Investment Stimulus Policies - Legal Significations and Issues on Private Investment Activation Policies of Park Administration -

    Seung Pil Choi | 2016, 74() | pp.25~51 | number of Cited : 6
    Abstract
    The legal issues of the recent government‘s economic stimulus policies can be classified into two. One being the stimulation of PFI(Private Finance Initiative), and other being deregulation of certain areas through regulation free zones. The core of private investment stimulus policies is Fast Track that enables quicker investment process, PFI priority policy in public works, and utilization of BTO-rs and BTO-a, a new sharing plan of risks and profits. However, this policy may be a financial burden how and at what ratio the government and the private sector divides risks and profits. The financial burden can especially be large if the public works are with little business feasibility. For PFI Competitive Dialogue is introduced. However, the main purpose of this policy is fair competition, not to stimulate PFI. Government economic stimulus policies focusing on regulation free zones, are structured with development deregulation and licensing deregulation. Site deregulation and restricted development area releases. By appointing special occasions on location regulations, facilities such as factories with new businesses have enhanced access to move in. Additionally, if large complexes are necessary, existing limited development districts can be released to provide necessary land. Environmental and transportational regulations are simplified during industrial complex developments, through authorization simplification processes. But existing industrial complexes or semi-industrial complexes must be utilized prior to any new developments. Appropriate collection method for development profits from releases of development restriction areas. Environment is one of the most important factors to concern in development administration. This economic stimulus policies and regulation free-zone act also plan procedure simplication. However, environmental hazards from emittance regulations cannot be removed. Deregulation must be realized narrowly if environmental protection is necessary. Value-add creation through economic stimulus and necessary public interest, must maintain its balance.
  • 3.

    Appraisal and Assessment System and Constitutional Guarantee of Property Rights

    Kwang-soo Kim | 2016, 74() | pp.53~81 | number of Cited : 3
    Abstract
    Article 23 of the Constitution of the Republic of Korea guarantees property rights of Koreans. A property right means a basis of life and material condition for making a constant life possible to each individual. In particular, real estate serves as the base for residence of an individual, the foundation for production, and a means for increasing properties. As we are living in the early 21st century with a focus on materials, property rights including those on real estate have an important significance. Guarantee of property rights means the guarantee of the continuity of existence of property rights, the objective values, and the free rights to use. The Republic of Korea has the appraisal and assessment system, which materializes the property rights guaranteed by the Constitution, as an important means for guarantee of property rights. The officially assessed land price of the standard lot determined through an appraisal and assessment provides the land price information in the land market, and becomes an indicator of general land transactions. It also serves as the standard for institutions such as the government and the local governments to calculate the land price in relation to their work and for someone conducting an appraisal and assessment to individually performs an appraisal and assessment of land (Article 10 of the Act on the Public Announcement of Values and Appraisal of Real Estate). The officially assessed individual land price serves as the standard for imposition of development dues by the Restitution of Development Gains Act, calculation of price of registered property by the Public Service Ethics Act, calculation of the standard market price for calculating the tax base of the transfer income tax on land transfer by the Income Tax Act, assessment of the price of the subject land by the Inheritance Tax and Gift Tax Act, and imposition of the acquisition tax by the Local Tax Act. The standard house price serves as the standard for institutions such as the government and the local governments to calculate the individual house price in relation to their work (Article 18 Clause 1 of the Act on the Public Announcement of Values and Appraisal of Real Estate). As well, the prices of individual houses and apartment houses provide price information of the housing market, and can be used as the standard for institutions such as the government and the local governments to calculate the prices of houses in relation to their work including taxation. The officially assessed land price and the officially assessed house price are not only the standard for transactions for a public purpose and taxation but also the indicator for general land transactions. They have an immense impact on the property rights of Koreans. In particular, the guarantee of property rights of Article 23 of the Constitution and the principle of no taxation without law of Article 59 of the Constitution are closely related to the officially assessed land price system. As the officially assessed land price is used as the standard for the property rights of Koreans in case of expropriation of land, imposition of development dues or the like, and imposition of a variety of taxes, it can be said to actually determine the details of property rights. Thus, maintenance of objectivity, propriety, and expertise of the officially assessed land price can be said to form the basis of the Constitutional guarantee of property rights. Therefore, the Act on the Public Announcement of Values and Appraisal of Real Estate has the status as a law for materializing the Constitution, and it must be carefully enacted and interpreted to fit the status. Thus far, there have been some issues on the implementation of the Act on the Public Announcement of Values and Appraisal of Real Estate, and new laws have been enacted to replace the existing law in order to settle the issues. The new laws are three Acts including the Act on the Public Announcement of Values of Real Estate, the Act on Appraisal and Assessment and Certified Public Appraiser, and the Act on the Korea Appraisal Board. Thanks to the enactment of the three new laws, the controversy over the structure of the legal systems of appraisal and assessment has been settled for the time being. However, you cannot view that this has settled an objective and fair appraisal and assessment system. It is determined that the appraisal and assessment system should develop further from here on for the Korean people to agree through operation of the system.
  • 4.

    A Study on the Ordinary Housing Stability Policy Instruments of the Park Guen-hye Administration and Related Laws

    정주희 | 2016, 74() | pp.83~109 | number of Cited : 4
    Abstract
    This study aims at examining the direction and main instruments of the ordinary housing stability policy of the Park Guen-hye administration, and investigating relevant laws regarding how the instruments of policy are being reflected to the current law and enforced. The major instruments of policy of the Park Guen-hye administration for the stabilization of ordinary housing can be generally classified into, first, revitalization of the supply of Happy House, second, expanded supply of public rental housing and diversification of its types, and third, customized housing support, such as housing benefit. The main contents can be summarized as follows. With regard to the activation of Happy House, 「Special Act on Public Housing」 regulates various exemptions, such as building standards. However, conflict with residents and others, rent and eligibility rules and etc. are at issue, so monitoring and related systems need to be compensated through conflict management, rent control and supplementation of the eligibility rules and etc. so that the project can be carried out according to plan. Recently, the government is focusing on the introduction of various types of public rental housing and development on a small scale, which has been also reflected to 「Special Act on Public Housing」. In addition, an act on special cases is planned to be legislated for the vitalization of small-scale maintenance project without maintenance plans and rental houses and others are going to be supplied. Yet, as there’s worry about deterioration of residental environment resulting from sprawling development, it’s demanded to secure the capacity for urban infrastructure, budget support, and establishment of long-term master plan. Moreover, the outcome of the supply plan for public rental housing must be closely examined, and the construction of long-term public rental houses need to continue, too. The reformed housing benefit system is a representative ordinary housing welfare policy of Park Guen-hye administration, and 「Housing Benefit Act」 and others have been legislated for this. However, it’s been pointed out that the nature of discretional benefit has become strong as a matter of housing welfare policy, and its effectiveness is also at issue. For the reformed housing benefit system to be settled stably, relevant organizations need to cooperate, and it requires supplementation so that when rent is provided, rent index ratioin(RIR) can be taken into consideration as priority.
  • 5.

    A Study on the Legal Issues and the Possible Solution in the District Designation Phase of Urban Improvement Project

    Pilkyu Cho | 2016, 74() | pp.111~131 | number of Cited : 1
    Abstract
    This study looks at the implementation process of urban improvement project to analyze the litigation status and causes of conflict in the conflictive maintenance district designation phase. By doing so, the purpose of this study is to present a possible solution to help ease disputes among urban improvement project stakeholders. As a result of this research, it is deemed that public opinion investigation is insufficient in the maintenance district designation phase. Rather than using public announcement for the maintenance district designation application as in the present system, more active schemes are necessary such as small-group presentations for residents and residents’ project participation scheme based on collecting their opinions on the development plan on a specific area. Moreover, it is necessary to present clear assessment criteria for old and poor building structures to the public, which call for urban improvement district designation. To this end, the role of the public sector is all the more important and especially mayors and county heads, those with the authority to plan for urban improvement projects, are required to implement thorough management and supervision.
  • 6.

    Legislative Improvement of Housing Management - Related Law for Right to Housing - Forcused on Interior Works -

    Hong, Sung-Jin | Sun-Gu Park | 2016, 74() | pp.133~150 | number of Cited : 1
    Abstract
    The right to housing means the housing life worthy of human beings on pleasant and stable residential life without physical, social risks. it can be guaranteed on the basis of the housing. The Housing related right to residency can be divided into construction, supply and management, housing management such as the protect the right, improving the great significance of lives and community life of the residents is a great significance in a situations today's exceed 100% of diffusion ratio of house. For a typical means of interior construction of housing management and legal disputes caused a lot of damage to lack have no legal basis about entities and requirements of execution on housing management-related law. The housing management has been recognized as fields of private autonomy, there is a need to regulate by public law for pleasant and stable residential life. Therefore, housing management-related law that clearly defines the execution requirements for interior construction in the 「Framework Act on the Construction Industry」, and the agreement regulation about such as a minor acts interior works of expansion or remove the structures and equipment in the 「Act on Collective Housing Management」
  • 7.

    A Study on Issues Regarding Improvement of the Special Act on Public Housing

    Sunbae Lee | 2016, 74() | pp.151~179 | number of Cited : 2
    Abstract
    While the existing ‘Rental Housing Act’ is applicable to privately-built rental housing and publicly-built rental housing, the Special Act on Public Housing is governing the provisions regarding publicly-built rental housing and publicly-built sales housing. The Special Act prescribes matters necessary for constructing, supplying, and operating public housing in order to contribute to providing housing stability for moderate income households and to improving the level of their housing conditions. The special Act is applicable to public housing and the size of public housing offered for moderate income households is smaller than that of National Housing. The Special Act vests the Minister of Land, Infrastructure and Transport with enormous authority. The characteristic of the Special Act is to prescribe that approval for the designation of public housing site and for the plans for public housing construction projects obtained from the Minister of Land shall be deemed to have approval, permission, decision, deliberation, etc. granted under other Acts. The provisions of the Special Act are structured to prescribe various cases to swiftly cope with the continuous increase of needs for public housing and are specified to apply only to public housing to overcome limitations which the existing rental housing laws could not cover. It seems that 'the Special Act on Public Housing' is the product of efforts to improve incomplete and unsystematic legal system shown in the existing Rental Housing Act. However, the Special Act still stays in its incomplete phase of development. Also, the Enforcement Decree thereof and the Enforcement Rule thereof can be said to be in the process of development. The provisions of the Special Act have been sub-classified into such categories as supply, demand, management and operation, and supervision and been analysed accordingly. The results are follows: A double definition of public housing; ensuring fairness in the Public Housing Integration Deliberation Committee; resolving issues of housing instability among the poorest households; belittling of issues relating to exercising a rent-to-own option before the lease expires; provisions regarding unilateral upward adjustment made for leases; provisions prescribing an agreement between a lessor and a lessee; the possibility of neutralization of the special Act conducted by managing and supervising authorities; issues arising from operating lease dispute settlement committees established under the jurisdiction of each Si, Gun, and Gu.
  • 8.

    The Review on the Harmony between Market Autonomie and Public Regulation in Electronic Trade - The New Relationship between Public Law and Private Law -

    SUNG BONGGEUN | 2016, 74() | pp.181~206 | number of Cited : 4
    Abstract
    Now we are experiencing the New Era in which so many trade and exchange of goods including real estate by electronic methods in cyber space. We can call this society ‘the Information Society’ or ‘the Digital Society’. At the same time ‘E-Government’ is working in this society. But because of splendid and huge progress of electronic Market and Technique, State and Provinces cannot solve many problems in this change of Era without Help of Private Sector. We cannot adhere to traditional administrative Paradigm and Government’s hard Regulation any more because of already and enough experience of ‘Government’s Failure.’ But also we cannot rely on ‘Neoliberalism’ and ‘NPM’ because of ‘Market Failure’. So now we need to get the Revolutionary Paradigm so that harmonize the Market’s Autonomie and Public Regulation. I propose and suggest ‘Steering State’ which can implement successfully ‘Ensuring State’ or "Guarantee State’. In this model, State respect Market Autonomie at first, so keep the wide distance with Market and prefer Self-Regulation in Market. The Structure and Relationship between Market and Government is that Public Relationship and Public Sector embrace the Private Relation and Sector so that Market and Private sector work automatically very well. So State should keep the distance with Market watching and monitering Market. Even if Market works very well automatically, Steering State is prohibited to do nothing and abandon to hold Steering Handle. When the Function of Market is in danger, at that time Steering State should have narrow distance and intervene and steer the Market with proper and soft Methods. Like this way, Steering State handle and steer and control the Market considering Market’s Character and Style, the Degree of Danger in Market, proper Distance with Market etc. If we want to make Steering State more effectively work even in electronic Market, we’d better to ‘network’ very well among State and Market, Individual, Enterprise, International Groups with each other. In addition to ‘Networking’, we also need various PPP (Public Private Partnership). Especially we’d better to use combination of Self-Regulation and Government’s Regulation considering distance between Market and Public Power. So we need to choose soft Self-Regulation in Internet Market primarily. But Secondary we can use strong Government’s regulation only when Market Autonomie has significant problems and is in danger. We’d better revise and correct many Laws including Constitution in this direction of Steering State continuously for example as we see in German Constitution Article 87 e and Article 91 c. And we’d better to classify and divide laws into General Law and Individual Law. So We need to declare Steering State which keeps proper distance with Market including electronic market in these General Law. At the same time we’d better to give and take feed-back between General Law and Individual Law.
  • 9.

    The Problem and Its Improvement on the Category of Security Operations in Security Law

    Won Jung Kim | 2016, 74() | pp.207~228 | number of Cited : 2
    Abstract
    The demand for security is increasing in our society. The security in Korea started to develop in the early of 1960’s when private security guards were in charge of guarding U.S. 8’s Army. In 1976, ‘Security Service Law’ was established on which the legal ground of the private security was based, and it is currently called ‘Security Law’. Security guards partly took charge of keeping public security according to ‘Security Law’. The demand for private security has been occurred by civilians who are willing to pay for their secured safety for which public agency should be responsible. Work of security is defined in the Second Article of ‘Security Law’, but its definition is abstractive, not specific. ‘Security Law’, as a part of Administrative Law, should be legislated in accordance with the general principle of Administration Law and legalism. However, the present ‘Security Law’ does not have general regulations on the category of security operations. Private security is purposed in making sure of civilians’ safety in their bodies and properties on their own expenses. Therefore, detailed security work should be regulated in the law so that civilians’ bodies and properties could be protected. In conclusion, this study analyzes the problem of the category of security operations and suggests their legislative solutions
  • 10.

    A Study on Improvement of Administrative Investigations Procedures on Immigration Control Act

    Yoo, Seong hee | Jang Kyo-Sik | 2016, 74() | pp.229~250 | number of Cited : 3
    Abstract
    The number of illegal aliens in South Korea shows a steady increase, and was tallied as many as two hundred thousand in 2014. Such an increase in the number of illegal aliens represents a role of ‘Immigration Control Law,’ which is regulated to ensure the effectiveness by executing the immigration control administration. In other words, this is because ‘Immigration Control Law’ gives permission to immigration officials not only to crack down on illegal aliens or investigate but also they can take an administrative measure such as compulsory expulsion, ordering deportation, and etc. However, compared with scope of extensive power, it is reality that ‘Immigration Control Law’ cannot narrow the gap between immigration officials who should follow the law and illegal aliens. For example, immigration officials do not comply with ‘obligation to carry or present their badges’ in the crackdown, they clamp down at nighttime or at dawn, and they are inadequate for the regulation, which is about the right not to be forced to police questioning to illegal aliens. Because all such deviations or incompletions of administrative procedure affect not only immigration officials’ legitimacy of activity of duty, but also effectiveness of ‘Immigration Control Law,’ they need to be improved. In other words, regulation of article 82 of the ‘Immigration Control Law’ should be strengthened, so comply with obligation of immigration officials in immigration crackdown procedure, and prevent human rights abuse of illegal aliens by restriction on crackdown at night and dawn. Moreover, with reference to the police questioning and introduction of regulation, which is about restriction of body and prohibition of compulsory questions to the illegal aliens, you need to protect a minimum human rights.
  • 11.

    Korean CCS Policy and Legislative Direction - Focused on the Land Expropriation and Public Acceptance -

    Kim, Dong-Ryun | 2016, 74() | pp.251~271 | number of Cited : 6
    Abstract
    Carbon dioxide is being discussed as the main cause of global warming. The energy consumption has increased due to increase of population and industrialization and the use of fossil fuels such as coal and oil increased rapidly to increase the emission of carbon dioxide to the atmosphere up to the uncontrollable level, accelerating the global warming. Under the circumstance, countries around the world are concentrating on research and investment to reduce the emission carbon dioxide, the main cause of greenhouse gas (GHG). In June 2016, Korea set the long-term goal for the reduction of GHG at 37% below BAU as of 2030 and chose CCS as one of the methods to achieve the goal. Regarding the decision to apply CSS, Korea shall discuss various problems that can be involved with the introduction of CCS and undergo legislative adjustment to resolve such problems. This study focused on land expropriation and public acceptance among the problems and discussed them based on the bills currently being prepared by the Ministry of Environment. Problems expected in relation to land expropriation include the subsoil use of the land the expropriation of land. Public acceptance is the most important part of CCS policy and is essential for the efficient implementation of CCS. As the efforts to resolve such problems, the Ministry of Environment has prepared a variety of measures such as resident support, fund raising, public conference, migration measures, and environmental impact assessment and also developed an environmental dispute arbitration system to resolve disputes over the case of leakage that may occur during the process of carbon dioxide capture, transportation, and storage. The legislation for such efforts is the legal contents that need to be pursued for unification.
  • 12.

    A Review on the Police Organization and Legal System of the North Korea

    Ko Heon Hwan | 2016, 74() | pp.273~293 | number of Cited : 2
    Abstract
    South and North Korea has maintained a confrontational relationship for a very long time under different ideologies and systems. In recent years, due to the international pressure toward north korea and Kaesong Industrial Complex due to the closure of North Korea's nuclear test and missile launches, including the Korean Peninsula are embroiled in a maelstrom of rip. There are literally rush into new Cold War. But these extreme oppositional, but in the context can be concluded next jump to whether to be inter-Korean relations are formed in any shape change of the sudden international affairs, or anything that can not disown the expectation that social integration could be achieved at an early stage in the collapse of the regime In fact. Most importantly for social integration in the integration of various institutions and legal systems. The review is to analyze North Korea's legal system and police force as one of such methods. In this context, this paper will examine the organization and function of the North Korean people's safety agency organization of the police administration, and to consider with respect to its role and duties based on the laws of North Korea's "people's security control law". In addition, North Korea and was the "people's security control law" and of similar laws in the South, "police duties performance law" any point identify whether there is a difference and provide direction for future integration of legal and social integration.
  • 13.

    A Study on Legislation Against Cyber-terrorism

    조정은 | 2016, 74() | pp.295~315 | number of Cited : 8
    Abstract
    Many countries have enacted anti-terrorism law due to Paris terror attack in November 2015. In the meantime, there have been a lot of debates regarding national security and civil rights. Most anti-terrorism laws allow intelligence agencies to collect personal information extensively. Furthermore, companies are obliged by those laws to cooperate with intelligence agencies in the process. Korean government and the ruling party have participated in this global movement by enacting Anti-terrorism Act, and then are trying to pass the bill against cyber-terrorism. Until recently, terrorism has been a associated with physical acts of violence and crime. However, cyber-terrorism is a new form of terrorism, which means any premeditated, politically motivated attack against information, computer systems, computer programs, and data which results in violence against non-combatant targets by sub-national groups or clandestine agents. Since many critical infrastructure, government institutions, or media organizations are connected by the computer network, it is likely to cause severe damage to the country. In this paper, the concept of cyber-terrorism is defined by comparison with the similar concepts and the types of cyber-terrorism are classified. Thereafter, this paper reviews related legislations of other countries(such as United States or United Kingdom) and the Korean legislative bill against cyber-terrorism. Ultimately, this paper suggests improvement direction of the legislation against cyber-terrorism.
  • 14.

    Necessity of Legislation of CCS and Its Major Contents to Cut down Greenhouse Gas

    Moon-Hyun Koh | 2016, 74() | pp.317~341 | number of Cited : 7
    Abstract PDF
    The importance of CCS technology to cut down large scale of greenhouse gas is getting more and more these days. The process of CCS is composed of Carbon Dioxide Capture, Transportation and Storage. Among these, it is very important to guarantee long-term underground Storage of Carbon Dioxide. The Republic of Korea submitted an INDC proposal to cut down 37% long-term target of greenhouse gas BAU until 2030 in 2015. CCS is included among one of very important tools in Scenario 3(commercialization of CCS) and Scenario 4 (additional extention of CCS) within INDC proposal of the Republic of Korea. IEA and IPCC prospect ccs to cut-down 14% amount of total greenhouse gas of the world. EU and Germany made a legal framework for CCS. But the Republic of Korea has not prepared for this. Accordingly, it is high time that we should prepare for a systematic management of environment to handle leakage of carbon dioxide and legal framework for public acceptance concerning unsafety of carbon dioxide storage.
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