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pISSN : 1226-251X / eISSN : 2733-8371

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2017, Vol.77, No.

  • 1.

    Issues and Procedures of the Development Permit System

    Kwang-soo Kim | 2017, 77() | pp.1~27 | number of Cited : 5
    Abstract
    The development permit is not only part of the national land planning law called the National Land Planning Act, but it also has various elements that can be called discretionary judgments. In this case, the development permit has a status as a legal act distinctly separated from a building permit or a business permit. It is still called a permit, but the nature of it has elements of behavior that are close to patent, so it is reviewed again to see what a development permit means. If there is a discretionary factor in the development permit, the meaning and the way of controlling it should be examined. The first sentence of Paragraph 1, Article 57 of the National Land Planning Act stipulates, “Any person who intends to conduct a development activity shall submit the application to the development permit authority with the attachment of a plan on the establishment of the infrastructure or securement of necessary lands, risk prevention, prevention of environmental pollution and landscaping work for the development.” Therefore, in order for a permit to be granted for a development activity, the application must comply with the laws and regulations, and at the same time, a plan according to the development activity should be appropriate. This part is judged to be closer to the control of the plan rather than discretionary action. And in practice, much debate is taking place on the issue of licensing permits, which is recognized by statute in accordance with development permits. Licensing permit means the effect of recognizing that the relevant laws and ordinances, such as the Sewerage Act and the Forestry Law, are regarded to have already been obtained with the permission of the National Planning Act, for example, having the advantage of solving civil affairs at one go. However, the timing and the requirements of the licensing permit are causing discussions of issues in practice. There is also a debate about the procedural aspects of development permit together with substantive effects. The development permit is an important tool for the exercise of the property rights of the people and has the nature as an administrative plan for ultimately completing the legislation of land utilization. There are two elements mixed in the development permit such as the administrative act and the administrative plan, and it causes many theoretical and practical issues. This study focuses on this point and suggests that there should be an enhancement in the procedural aspects of the development permit to fulfill its function as a plan. According to the current law, the applicant is required to submit a proposal for the approval of the act, but the response is limited to either giving permission or denying permission with documentation of the reason for refusal. This does not correspond to the status of development permit as a planning permit. In order to evaluate the related benefits of the plan and to make judgement, the administrative office should accept the application and identify the meaning of the plan and establish a passage to make a decision based on it. For example, it can consider giving an opportunity of hearing to the other party or to give the civil applicant the opportunity of participation in the council of the administrative office about the application. And the apparently flawless legal system of licensing permit has produced a lot of practical issues as well. The argument is related to the structure of issuance of development permits, and the issues are caused by the fact that the procedures for administrative planning have not been established. Therefore, it can be considered to introduce a planning process in the long term, and the related procedures should be revised and a method to unify the effect of the agenda and its external appearance should be sought in the short term.
  • 2.

    Review of procedural and legal issues of building permits

    Jae Kwang Kim | 2017, 77() | pp.29~53 | number of Cited : 4
    Abstract
    It is a question of whether the freedom of construction can be recognized as a fundamental right under the Constitution of the Republic of Korea(hereinafter referred to as the Constitution) and which can be applicable provisions for constitutional bases. As the constitutional bases for it, most scholars contend right to property in Article 23 of the Constitution, but some scholars do right to pursuit happiness and right to property. It is considered that the latter is valid. The licensing(authorizations, permits and reports) process under the Building Act is characterized by multi-level administrative procedures. Legal issues related to building permits under the Building Act are as follows: first, the dual system of building permits and reports, secondly, the legal fiction of authorizations and permits, thirdly, the legal nature of building permits, fourthly, nearby-neighbors protection of building permits and reports. Firstly, several solutions have been suggested that they should solve the essential problems coming from dual system of build permits and reports under the Building Act and they can solve the problems to improve current regulatory system consisting of permits-registration-reports requiring acceptance-reports complemented by themselves, and to conclude, it has to review current regulatory systems of building systematically and totally. Secondly, the appropriation using repeatedly exceptional legal fiction of authorization- permits needs to be reviewed in depth. Thirdly, there is theory that the legal nature of the legal fiction of authorization- permits is considered to be the reports requiring acceptance, it is valid. The cases also recognized them as reports requiring acceptance. In addition, double authorization-permits legal fiction of 1st stage-legal fiction(fictive reports on the building permits) and 2nd stage-legal fiction(building permits with legal fiction of authorization-permits) have deviated from its original purpose of procedural simplification and imposed the legal force of substantive law, such as permits-fiction and authorization-permits fiction of related acts. As a result, acts imposing the legal strong force should be reconsidered legislatively. Fourthly, the preliminary dispute settlement for neighborhood protection has suggested as follows: applicability of public comments process by environmental assessment and of preliminary notice about building permits As detail rights for neighborhood protection, the right to request ban against person in the public law and right to request administrative intervention to administrative agency have reviewed. The discussion on the legal status of nearby residents related to building permits should be based on translating purpose of existing related regulations according to traditional protective norms, and headed to protection of rights for nearby residents.
  • 3.

    A Study on Public Interest and Benefit Incidence of the Enterprise Type Rental Housing

    Sunbae Lee | 2017, 77() | pp.55~94 | number of Cited : 3
    Abstract PDF
    The main purpose of providing support for the enterprise-type rental housing project (New Stay housing project) is to stabilize the availability of residences for the working and middle class by increasing the supply rental housing units with rental terms and conditions equivalent to those in neighboring areas where such rental housing units are to be built. When an eight-year rental commitment period, a condition imposed on such enterprise-type rental housing units, expires, they complete the function as rented houses and will be sold in the country’s housing market without being subject to any regulation even though such rental housing units were built with the various types of assistance and guarantees offered by the Government, based on the application of the provisions concerning many special cases stipulated by statutes. Therefore, it would be meaningful to examine the limited public interest in conducting the enterprise-type rental housing project and to analyze and prove who could take profits made at the time such rented houses are sold. Where a rental business entity itself or a public institution on behalf of rental business entities develops housing sites to build enterprise-type rental housing properties, unprecedented financial and tax assistance have been provided. Such assistance includes the expropriation of land of private persons, the conversion of the use of parks and green areas for developing such housing sites, and so forth. Taking into consideration that the unprecedented support has been given but there was no regulation, other than the specified condition, ‘an eight-year rental commitment period with rental terms and conditions equivalent to those in neighboring areas’, it is doubtful what would be the public interest in conducting the enterprise-type rental housing project. Because a trend in housing patterns is changing from “a place to possess” to “a place to rent”, if rental housing built under the project is to be used as ‘a place to reside’ for a long-term perspective, it should be available for renting even after the eight-year lease period expires. From this perspective, it is considered that there is not enough public interest and continuity in the enterprise-type rental housing project. Great profits were expected to arise from sales of rental housing at the expiration of the rental commitment period. The results of analysis indicate that such great profits have been taken by rental business entities. Therefore, it can ultimately be said that the New Stay plan itself does not promote the residential stability of people in working and middle class. Since it is difficult to withdrawal of such special support policy for the enterprise-type rental housing project which had already been legislated, this study suggests an alternative, a “guaranteed rental yield system”. The guaranteed rental yield system refers to a system in which a deficiency suffered by any relevant business entity, who fails or intentionally delays to achieve a specified rental yield calculated from when enterprise-type rental housing units are constructed to when the eight-year rental commitment period expires, can be compensated with premiums made when rental housing units are sold. The benefit derived from the guaranteed rental yield system is that any relevant rental business operator can be flexible in choosing a rental yield, within a certain range, from the time of building to the time of selling. Where it is necessary to set lower rents to supply affordable rental housing properties in a downtown on a long-term basis or where a period for being engaged in rental business is to be extended even after the lease period has elapsed, a deficiency suffered by a relevant business operator in terms of a rental yield can be guaranteed. Also, a premium rate can be suggested as an inducement to supply affordable rented houses on a long-term basis. Since such method plays a role of extending an actual lease period at a lower rent rate, it could be a solution to the issues, such as there are not enough public interest and continuity in the enterprise-type rental housing project. As a specific suggestion, the provision, “a rental business operator may transfer its rental housing units to civilians after the period has expired” provided for in Article 43 (3) of the Special Act on Private Rental Housing needs to be amended as “a rental business operator may transfer its rental housing units to citizens after the lease period has elapsed and the profits arising from such transfer shall be distributed and paid to the rental business entity according to a rental yield prescribed by Presidential Decree”. This amendment goes for the effect of killing two birds with one stone in voluntarily lowering the level of a rental yield based upon the extension of the lease period and in actualizing a distributive justice in society. The intent of this researcher and law makers are the same with regard to the standpoint that a renal yield should be guaranteed without fail.
  • 4.

    Method of Enacting Compensation on Goodwill Premium for Commercial Buildings

    Heo, Kang Moo | 2017, 77() | pp.95~114 | number of Cited : 6
    Abstract
    After a long-held discussion on goodwill premium for commercial buildings, 「Commercial Building Lease Protection Act」 was enacted in 2015 to regulate the definition of goodwill premium and protect the ‘opportunity of retrieving goodwill premium’ for leaseholder. Enactment of goodwill premium for commercial buildings is a part of preparing the instrument for protecting goodwill premium for leaseholders of commercial buildings as a result of the ‘Yongsan Incident’ in 2009, which caused the problem of compensating goodwill premium for commercial buildings. So far, the issue of compensation on goodwill premium was put on a blind spot for the reasons that it has no legal basis and that it is difficult to objectify and calculate the goodwill premium, but it is now facing a new situation due to the enactment of goodwill premium for commercial buildings. As goodwill premium for commercial building includes ‘private utility’ and ‘disposability,’ it fully possesses the factors for the concept of property right under the Constitution. However, goodwill premium for commercial buildings was not fully reflected on business loss compensation for the reason that it has no ground in the Civil Act, causing disputes about the compensation. The current issue with compensation of goodwill premium for commercial building is not that there are no regulations regarding compensation of goodwill premium, but that it is not reached by the concept of just compensation according to the Constitution. Viz, the issue of compensation on goodwill premium deals with the issue of actualizing the compensation of goodwill premium. Based on such critical mind, as a result, this study first aims to review the backgrounds of introducing the policy of goodwill premium and its details in accordance with 「Commercial Building Lease Protection Act」 in Ⅱ, and then study the ideals and reality of enacting compensation on goodwill premium in Ⅲ. In Ⅳ and Ⅴ, it aims to conduct legislation assessment on the legislative proposal of 「Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor」 regarding compensation of goodwill premium for commercial buildings, and present the implications of plans for enacting compensations on goodwill premium for commercial
  • 5.

    Rechtsfragen der Umwandlungsgenehmigung von Berggebiet

    Inkook Kay | 2017, 77() | pp.115~141 | number of Cited : 3
    Abstract
    Die vorliegende Arbeit will das Berggebietsgesetz("Mountainous Districts Management Act") und vor allem die Umwandlungsgenehmigung übersehen. Das Berggebietsgesetzes zielt darauf, dass die Funktionen des Bergwaldes in nachhaltiger Weise entwickeln. Hierfür stellt die Merkmale des Begriffs „Bergwald“ in den Vordergrund. Jedoch findet sich eine Inkohärenz mit anderen Raumplanungs- und Erschließungsrechte. Auch das Gesetz könnte die Geländefunktionen des Bergwaldes nicht hinreichend erwägen. Des Weiteres wird die rechtliche Qualifikation der Umwandlungsgenehmigung und Fiktion beleutet. Zwar regelt das Berggebietsgesetz die Voraussetzungen für die Umwandlungsgenehmigung. Bei der Abwägung vorgibt der Gesetzgeber jedoch nicht, welches Interesse grundsätzlich überwiegend ist. Durch die rechtsvergleichende Betrachtung, insbesondere das Abwägungsgebot nach § 9 BWaldG wird die Struktur der Abwägungs ermittelt. Zum Ende wird hier die mögliche Lösungen de lege ferenda diskutiert bzw. Geländefunktion des Bergwaldes, Umbau der Abwägungsstruktur und Vermeidung der pauschale Regulierung.
  • 6.

    The Legal Issues on the Establishment Procedure and the Approval of the Maintenance Project Association

    LEE SANG HOON | Seok, Ho Young | 2017, 77() | pp.143~176 | number of Cited : 1
    Abstract
    The urban redevelopment project in our country has been implemented by several laws such as the old urban planning act, the old urban redevelopment act, the old housing construction promotion act, etc., so it has always been difficult to implement the efficient and comprehensive projects due to the vacuums generated among the related acts. Consequently, in order to solve this situation, the urban maintenance and improvement act integrating the laws related to the maintenance projects such as the old urban planning act, the old urban redevelopment act, the old housing construction promotion act, etc. was enacted in 2003. The purpose of the enactment of the urban maintenance and improvement act was to improve the urban environment and the quality of residential life by enacting the provisions necessary for improving the areas which need the recovery of urban function and the improvement of residential environment devicefully and for building the old and poor buildings efficiently. The maintenance project under this act means the project which aims to prevent the decline of the urban function and the residential environment caused by the thoughtless development, and to rebuild the poor buildings and housings or to maintain the maintenance infrastructure in order to recover the urban function. The maintenance project under this act is divided into five projects, which are the residential environment improvement project, the housing redevelopment project, the urban environment maintenance project, the residential environment maintenance project, and the street housing maintenance project, depending on the extent of the deterioration, the necessity for the residential environment improvement, and the maintenance infrastructure improvement or expansion. The maintenance project under this act consists of five procedure steps, ① the designation of the maintenance area, ② the composition of the promotion committee, ③ the establishment of association, ④ the project execution plan, and ⑤ the management disposal plan. In this process, the problems such as the conflicts among the interested parties related to the maintenance projects, the delay of project and the cost increase, the economic and mental losses for the association members, etc. frequently occur. Especially, in the procedure of maintenance project, the uncertainty of the cost sharing, the poor agreement rate, the legal nature of the establishment of association, etc. have consistently been the main legal issues in relation to the maintenance project. Thus, this study first reviews the establishment procedure of the maintenance project, and also reviews the legal issues that have sustainedly raised in the previous studies related to the maintenance project association and the authorization for the establishment of association.
  • 7.

    Étude sur le Contrôle Judiciaire de l´Urbanisme en France

    Kim Hun | 2017, 77() | pp.177~201 | number of Cited : 0
    Abstract
    En cas de France, sur la base de la “loi de base sur le développement territorial et l’aménagement du territoire” en premier lieu et en vertu des “lignes directrices nationales” et des “directives pour l'aménagement du territoire”, les régions et les départements ont des pouvoirs de planification et de décision. Notamment, le préfet a une large autorité en matière d'administration foncière, de planification urbaine, et de contrôle lié à la construction tels que le soutien aux travaux d'urbanisme de la commune et la réalisation de projets nationaux. En ce qui concerne le développement du territoire, on confie la même autorité que détient l'Etat à la commune (loi du 29 juillet 1982). Bien que la planification urbaine ait des doubles facettes comme une notion de service public et celle de restriction publique, il existe une forte demande d’un caractère aléatoire suite aux perspectives à long terme et à l'évolution des circonstances. Dans cette étude, on tente d’examiner le contrôle judiciaire en tant que moyen de remédier aux atteintes au droit de l'urbanisme tout en étudiant les bases théoriques et la jurisprudence autour de tribunaux compétents sur les litiges administratifs(recours pour excès de pouvoir et procès relatif à la demande d'indemnisation à l'Etat) et les procès civil et pénal. Dans le cas d'un litige administratif, cela porte sur principalement la portée de l'affaire, la portée du contrôle du tribunal, les motifs de l'indemnisation nationale, la responsabilité de l'indemnisation et l'abus de litige. Alors que dans le cas de procès civil et pénal, on évoque les points tels que poursuites intentées par des tiers, motifs de responsabilité en matière d'indemnisation, vérification concernant les permis de construction et les violations des règlements d'urbanisme ainsi que la punition par accusation. En conséquence, c’est une vérification de l'illégalité par des poursuites contre un large éventail de discrétion de planification et un contrôle basé sur la théorie d’ordre des pénalités, il est donc nécessaire de déterminer et de mettre en œuvre une planification urbaine qui garantit la plus haute qualité de vie en termes de sécurité publique, d'hygiène et d'environnement.
  • 8.

    Rationalization of taxation of transfer income tax for stability of common-house and middle-class housing

    KIM, NAM WOOK | 2017, 77() | pp.203~230 | number of Cited : 2
    Abstract
    The Income Tax Law has strengthened the transfer income tax and has used speculative suppression vertically at the time of soaring house prices and the time when housing transactions are overheated. Recently, from the viewpoint of economic deprivation due to a long-term economic downturn and revitalization of housing trading, easing of multi-homed person's income tax emphasis section, exemption of transfer income tax exemption of housing rental business operator or special exemption of tax levy is composed and common people and middle class the fact is that the maintenance of houses becomes difficult. As a property that is indispensable for one life of clothing, shelter and livelihood rather than being used as a means of financial tech or speculation for houses, taxation of transfer income tax of housing, to realize human dignity and value and to live a comfortable human life in a comfortable housing environment It is urgently needed to rationalize. Because the term common people's dwelling stability is vaguely used even if the concept of common people and middle class is different, trying to clarify that concept, the current situation of government's real estate countermeasures for the stability of the common people and middle class residences Consider the transfer income system. In addition, by securing residence rights through rationalization of taxation system of transfer income tax of common people and middle class, rationalization of heavy taxation accompanying the transfer of residential speculation by clearing housing living period clearing requirements of 1st generation household income tax exemption tax, rationalization of membership We will consider the legal issues such as heavy taxation, resale heavy taxation, clarification of speculation criteria for housing transactions and strengthening of transfer tax income according to the proportional principle of housing speculation, and presenting the improvement plan as follows. It is not necessary to hold houses, but from the viewpoint of residential housing, it is necessary to reserve the transfer income tax to maximize residential rights. The requirement for the residence period to be tax exempted shall be clarified only when residing in the first generation, the 1st generation tax exemption requirement for 2 years or more for 3 years (designated area, 5 years in speculative overheated area). Since it is unreasonable to exclude transfer tax income tax exemption from luxury housing of the 1st generation of 1 residential housing without speculative elements, 1 residential luxury residential residence that is registered as the main residential area is tax exempt , Or to reduce the tax amount. Short-term ownership transfer income tax must be taxed at 60% and the tax legalism must be implemented by applying the principle of strict interpretation of the heavy taxation requirement accompanying the transfer of unregistered houses. At the time of resale of the membership right to reside, the taxable income tax must be taxed at 60%~70% and speculative capital gains must be refunded, with criteria for residential speculation, with the transfer income tax being set to medium, by the proportional principle The transfer income tax must be imposed. However, if the transfer of housing is not recognized speculation, taxation system of transfer income tax under the basic tone of housing transaction tax reduction and house holding tax strengthening is set up, reasonably the transfer income tax is relieved or exempted you must prepare a way to be.
  • 9.

    A Comparative Study on The PFI Scheme in Which Private Sector Performs Public Facility’s Operating Work(運營型 民間投資事業) - With Emphasis upon “System of operating right of public facility”

    Hwang Jihye | 2017, 77() | pp.231~257 | number of Cited : 10
    Abstract
    The amount of PFI(Private Finance Initiative) in Korea has increased by about trillion won a year. Along with the expansion of Public-Private Partnership, PFI(Private Finance Initiative) has expanded in many countries. PFI(Private Finance Initiative) has been studied actively these days. Especially the PFI scheme in which private sector only performs public facility’s operating work(運營型 民間投資事業). “System of operating right of public facility”(公共施設 等 運営権 制度), one of the PFI scheme in which private sector only performs public facility’s operating work(運營型 民間投資事業) is new scheme in Japan. It was made in 2011, when Act of PFI was revised. In this system, Public sector which own public facility creates a public facility’s operating right, and private sector operates public facility and collects public facility fee. “System of operating right of public facility”(公共施設 等 運営権 制度) seems similar “Designated manager system”(指定管理者 制度) that doesn’t need construction stage. In contrast, “system of operating right of public facility”(公共施設 等 運営権 制度) is one of the PFI’s scheme, while “Designated manager system”(指定管理者 制度) is delegation of public service. Thus, they can use “System of Operating right of public facility”(公共施設 等 運営権 制度) and “Designated manager system”(指定管理者 制度) in Japan at the same public facility. In this case, the merit is expansion of range of work comparing PFI. The other merit is consistency of management ultimately. Because “system of operating right of public facility”(公共施設 等 運営権 制度) has such characteristic and merit, we can take a comparative legal example from “System of Operating right of public facility”(公共施設 等 運営権 制度) in Japan. To solve problem of Japan’s national finance, “System of Operating right of public facility”(公共施設 等 運営権 制度) has appeared. In Korea, public debts have increased rapidly these days. And public financial crisis can be predicted nowadays. So Korean society needs study on “system of operating right of public facility”(公共施設 等 運営権 制度). “System of operating right of public facility”(公共施設 等 運営権 制度) has following merits; Firstly, the administrative agency can have inclusive and unilateral responsibility while concrete maintenance responsibility differs at varied situation. Secondly, the ultimate responsibility belongs to public sector. This merits are helpful to maintenance of PFI legal system in Korea.
  • 10.

    A Legal Study on Designation for the Protection of Cultural Heritages

    Woo-Suk Chae | 2017, 77() | pp.259~279 | number of Cited : 6
    Abstract
    The protection of cultural heritages has become one of the most important policies to enhance our historical or cultural values. In order to realize these policies, Cultural Heritage Protection Act enacted, various administrative powers are being exercised around this CHPC. This paper focuses on the designation system among various administrative powers for the protection of cultural property. In traditional administrative law, it is said that cultural heritages has legal nature as a public property. Based on this public property law, the administrative jurisprudence for the protection of cultural heritages were constructed around historical preservation. However, in modern society, cultural heritages should be viewed not only in preservation but also in a new paradigm called environment and cultural value. From this point of view, legal research on cultural heritages designation should be done. The designation for protection of cultural heritages acknowledges the very broad discretion of the administrative office. Therefore a legal system and a judicial system must be constituted to control such administrative discretion. The stricter procedural regulations should be introduced in the designation act. And a legal system should be prepared to respond appropriately to various administrative litigation around the designated act of cultural heritages.
  • 11.

    A Legal and Institutional Review of Abuse of Persons with Disabilities

    Oh Sam Gwang | 2017, 77() | pp.281~296 | number of Cited : 2
    Abstract
    With watching and seeing a case of the mistreatment damage on the disabled these days, the nation needs to positively take the lead in protecting them as those who also have a right to manage happy life as a member of our society. However, the disabled are lacking in ability available for solving themselves even if being violated human rights amidst indifference, discrimination and abuse in society. Thus, unjust cases are numerously taking place that used a characteristic of the disability. This can be considered to be the outcome not only that the nation or the local government is short of a concern and a consideration for these people, but also that the legal & institutional insufficiency available for keeping the disabled did function compositively. In order for us to prevent this case of the human rights violation, a behavioral change is imminent along with social members' change in perception of looking at them. Also, we require management and oversight so that the human rights violation of the disabled cannot happen. But there is a need of a change that treats without discrimination with respecting for which they are also human beings like us. As the direction with which our society will need to proceed down the road through the mistreatment and human rights violation of the disabled, the plans were proposed such as the reinforcement in a support program for the families with the disabled children, the strengthening in the human rights education for raising the reporting rate of the mistreatment damage, the expansion in a mandatory reporter of abuse, and the arrangement for a coping method according to an abuse cause and a disability cause. The society is expected that these people can manage life happily by which the nation, society and families make a joint effort together based on this.
  • 12.

    A Study on the legal Improvement Methods of The Improper Solicitation and Graft Act

    Kim, Ki-Ho | 2017, 77() | pp.297~325 | number of Cited : 7
    Abstract
    The Improper Solicitation and Graft Act defines a ban on improper solicitation and graft while the concept of improper solicitation is based on various precedents set by the court. With regard to determining whether improper solicitation is related to a public servant's duties, the Anti-Corruption and Civil Rights Commission, a government agency in charge of enforcement, interprets it in a broad sense and thus makes it difficult for those subject to the Act to predict what exactly constitutes a violation. Hence, improvement in the concepts of improper solicitation and social ethics is required based on legislation and not the court's precedents or the Anti-Corruption and Civil Rights Commission's authoritative interpretations. In order to achieve the purpose of its legislation, the Act sets forth its applicable scope and target as public institutions and officials that perform public duties, and limits their basic rights such as private economic activities and freedom of speech. Hence, the Act requires the same level of the basic rights' restraints on them as it is for public servants without any reasonable justification, and limits the general right to act freely for journalists and private school employees, whose basic rights are to be protected by the state. The Act infringes upon the principle of banning one’s own opinion and constitutes a violation of equality of rights. For this reason, the private sector should be exempted from the Act's applicable scope to serve its original legislative purpose, which is to root out improper solicitation practices in the public sector. Articles 10.2 and 10.4 of the Improper Solicitation and Graft Act make it mandatory for public officials to report their outside lectures and allow the head of their agency to restrict such activities by considering whether they interfere with the performance of their duties. However, their basic rights should be guaranteed more strongly, as they are fundamentally different from public servants. In addition, given that these articles allow the head of the institution to ban the expression of certain things based on a pre-screening of an outside lecture and as Article 21 of the Act defines the means to enforce this ban, the articles set pre-censorship requirements in place. Thus, not only can this not be considered an appropriate means to accomplish the legislative purpose of the Act, but it also infringes on journalists and private school employees' freedom of the press and academic freedom. Furthermore, the Code of Conduct for Public Officials and the Requirements of Public Officials regulate public servants based on pre-screenings of an outside lecture and the approval of the agency head, which makes these articles in this Act redundant. Hence, it would be reasonable to remove them. The principle of systemgerechtigkeit (legitimacy) in the criminal punishment system is one that should be considered during legislative activities. Articles 5 and 8 of the Improper Solicitation and Graft Act only set forth bans on improper solicitation and graft, but the Act does not have any punitive article on those violating the bans by directly providing improper solicitation and the spouses of those public servants receiving improper graft. Hence, it runs counter to the principle of proportionate responsibility and criminal punishment. Although this Act puts in place a ban on receiving graft along with a ban on improper solicitation, it imposes fines if the graft is related to duties while imposing criminal punishment if it is not, which does not make sense. While the Act exempts from penalties a public servant's spouse who violates a ban on receiving graft in relation to the public servants' duties, it imposes criminal punishment on public servants who violate their obligation to report their spouse. Thus, it also runs counter to the principle of proportionate responsibility and criminal punishment. If a public servant's spouse receives improper graft in relation to the public servant's duties, the spouse would certainly be regarded as intending to take illegal profits, so he or she could be subject to punishment in accordance with the Criminal Act. Therefore, such articles mandating the reporting of a public servant's spouse and imposing penalties for not doing so force the public servant to act against his or her conscience and therefore infringes on the freedom of conscience. Nonetheless, since it does not provide any legitimate reason for not being systematic, which contradicts the same rule and conflicts with other laws, the Act is deemed to be in violation of The principle of proportionality of responsibility and punishment. Hence, regulating the criminal punishment system in this Act based on whether improper solicitation or graft is related to the duties a public servant performs seems appropriate for its legislative purpose.
  • 13.

    The Review on the Steering and Way of Hacking in Steering State

    SUNG BONGGEUN | 2017, 77() | pp.327~359 | number of Cited : 2
    Abstract PDF
    Now we need to get new paradigm and Ideological reflection on the nation so that we can control and steer of hacking effectively and properly. The old paradigm is so called ‘Regulatory State’ which Government try to compulsively regulate hacking only by itself. But this is possible to infringe of democracy and constitution. In addition to it, this cannot be special, rapid and flexible to control hacking. Therefore we can conclude that we shall change paradigm from Regulatory State to Steering State following global trend in also for hacking control. At first, I’ve mentioned about concept, character of hacking, and related risk considering law of science and technology. At second, I’ve suggested new classification of Hacking so that can properly steer in this Information Society. So we can consider not only Hacking by Hackers but also Hacking by Government. And we can classify inner hacking and outer hacking, traditonal hacking for example ddos and web hacking, system hacking. There are also Online search and Tactical Hacking in way of hacking by government. At third, I’ve researched about many laws especially including german law and court’s decisions. Finally I’ve try to suggest many ways for control and steering of Hacking. Concretely speaking, we need to amend scattered laws for Hacking, especially make legislation better for example hierarchy which is arranged in order of constitution, general law, and individual law. The Interactive structure in legislation and administration is better than one-sided for control and steering of Hacking. We need to construct specialized and responsible Control Tower in executive for steering. We shall raise the level of duty for protecting hacking in Government, Enterprise, and Society also through legal system including remedy.
  • 14.

    A Study on Cybersecutiry Legislation Trends and Implications – focused on U.S and Canada -

    조정은 | 2017, 77() | pp.361~383 | number of Cited : 2
    Abstract
    Recently, rapid developments in science and technology have narrowed the gap between real space and cyberspace, making the cyberspace vulnerable from the threat of terrorism. In modern society, it has become necessary to defend and protect such systems from cyber attacks, since most critical infrastructure systems rely on cyberspace and even a single attack can cause significant damage. In particular, it has become a situation that important information of the government, including the military field, is violated or hijacked by hacking, etc. Therefore, various international organizations, such as the EU, OECD, and many countries, such as the U.S., Canada, etc, have been making efforts towards improving cyber security legislations by establishing national cyber security strategies. The United States has been a leader in cyber security policies and related legislations for a long time. Since the U.S. government recognizes that cyber security is directly linked to national security, the relevant policies have been implementing steadily. These regulations have become even more reinforced since the Obama administration. In addition, the Canadian government regards cyber security as an important national security policy and believes that individuals, groups or organizations with malicious intent can actually attack Canada without actually being in Canadian territory. As a result, the Canadian government is actively planning and implementing new cyber security strategies, which include new legislations. In this paper, we examine the cyber security response systems and the trends of related legislations of the United States and Canada, and draw up implications to suggest a way to develop a Korean anti-cyberterrorism legislation in the future
  • 15.

    Idee der sozialen Gleichheit und deren Aufgabe im 21. Jahrhunder

    Jina Cha | 2017, 77() | pp.385~417 | number of Cited : 3
    Abstract
    In der Geschichte der Menschen hat Gerechtigkeit bzw. Gleichheit ein Grundproblem bei der Gestaltung und Erhaltung der staatsgemeinschaftlichen Ordnung dargestellt. Unter Gerechtigkeit hat man Gleichheit verstanden. Daran hat sich nichts geändert; wenngleich man die Macht mit der Gerechtigkeit gleichsetzt, in dem Sinne 'dem stärkeren das Mehrere als das Seine'; Das Gleiche gilt auch für den Fall, dass man Menschenrechte für alle Menschen unter Voraussetzung der Würdigkeit des jeden Menschen behauptet. In diesem Fall variieren nur die konkreten Maßstäbe für die Ver- und Zuteilung des Seinen, aber nicht die Formel, „jedem das Seine!" selbst. In diesem Sinne bedeutet Gleichheit als Gerechtigkeit eine Art der „Wert-Leerformel" Die Akzentuierung der sozialen Gerechtigkeit über individulelle Gerechtigkeit hinaus heutzutage ist ein Ergebnis der Bestrebung, nach dem Inhalt der Gerechtigkeit einen Schritt näher zu treten. Soziale Gleichheit darf keinen Titel darstellen, irgendjeden Inhalt in derem Namen zu rechtfertigen. Sondern gebietet sie, jedem deshalb auch den sozial Schwächeren, statt natürliche Zuchtwahl bzw. Überleben des Angepasstesten, minimale Rechte für Getaltung des menschenwürdigen Lebens anzuerkennen. Heute hat sie weltweite Echos gefunden; dies hat soziale Menschenrechte und den Sozialstaat zur Verankerung nicht nur auf der jeweiligen innenstaatlichen Ebene, sondern auch auf der (supra- und) internationalen Ebene geführt. Allerdings hat sich die Eigentümlichkeit der sozialen Gerechtigkeit viel stärker als deren Universalität hervorgetreten. Dies beruht auf den Unterschieden in den tatsächlichen Gegebenheiten einerseits und in der ideelen Orientierung andererseits; zwar gibt es eine weltweite Übereinstimmung über die Grundrichtung der sozialen Gerechtigkeit, aber nicht über konkrete Art und Weise sowie koktrtes Maß bei ihrer Umsetzung. Bei der Verwirklichung von den sozialen Menschenrechten bzw. vom Sozialstaat anders als von der Demokratie und vom Rechtsstaat treten verschiedene Modelle, die sich voneinander je nach der Grundorientierung, dem Kokretisierungsmittel und –maß differenzieren. Welches Modell daruter entspricht der sozialen Gerechtigkeit am besten? Welches ist das beste, der Grundorientierung und den wirklichen Gegegenheiten iherzulande gerechte Modell? Was ist die beste Atlernative für die Verwirklichung der sozialen Gerechtigkeit im sich rasch wandelnden gesellschaftlichen und wirtschaftlichen Gegebenheiten? Die Frage nach der sozialen Gerechtigkeit hic et nunc verlangt immerfot weitere Überleungen und Reflexionen; die Antworte darauf, was ist Gerechtigkeit?, haben sich immer verwandelt. Es ist aber deutlich, dass dabei die durch menschliche Erfahrungen und Bestrebungen während der mehreren Jahrhunderten Kristallisiete wie etwa Menschenrechte, Demokratie, Rechtsstaat und Idee der sozialen Gerechtigkeit usw., was bereits in der Verfassung der Republik Korea verankert sind, ausreichend nachgedacht werden sollten. Die sozialstaatliche Aufgabe im 21. Jahrhundert könnte etwas Neues, noch nicht Erfahrenes sein. Die Kriterien für die Erledigung der Aufgebe könnte man durch Forschung der Ideen und Prinzipien von unserer Verfasung finden. In diesem Zusammenhang sind die durch den geschichtlichen Erfahrungen geprüften und aggregierten Kenntnisse und Weisheiten noch heute von besonderer Bedeutung.
  • 16.

    Status and Issues in the Election Lawsuit

    Moon-Hyun Koh | 2017, 77() | pp.419~435 | number of Cited : 4
    Abstract
    As P. Badura emphasized importance of election that ‘democracy lives on election’, representatives shall be elected by citizens under the principle of modern representative democracy. Election is sacred gesture of a sovereign citizens. In this essay, the writer covered articles related to election lawsuit and its current situation, and finally came to conclusion. The election lawsuit has the character of a constitutional trial because it affects the composition of the National Assembly and the jurisdiction of election lawsuit is a key constituent of constitutional adjudication of independent Constitutional Court. Therefore, it is desirable that the election lawsuit be handled by the Constitutional Court rather than by the ordinary court. The Constitution does not provide election lawsuits under the jurisdiction of the Constitutional Court, but election lawsuits shall be provided under the jurisdiction of the Constitutional Court by the revision of the Constitution. Legislators may grant the Constitutional Court the right to file an election suit by law. The requirement for nullity of election specified in the Supreme Court precedent shall be prescribed by law. It is very important to establish fair criteria for judgment by preparing for realistic and rational criteria such as sentencing guideline in election lawsuit. It is also very important to for judges to proceed election lawsuit as fast as possible.