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2017, Vol.78, No.

  • 1.

    Study on the Government Authorization Process and Legal Issue about Scheme of Execution for Public Facility

    SUNG BONGGEUN | Sohn Jin-Sang | 2017, 78() | pp.1~35 | number of Cited : 6
    Government has been often decided to determine Authorization about Scheme of Execution for Public Facility without communication and due process. This one-sided administration paradigm in it caused public conflicts grow bigger in our society. Now is the time to stop this decision style in also public facilities. We shall change it and determine Authorization about Scheme of Execution for Public Facility based on the consideration of the members in this society by the communication process about whether to decide, where to locate and how to compensate etc. Therefore, we shall change the paradigm of Authorization and Plan about Scheme of Execution for Public Facility so that we can catch up with the global trend of ‘interactive administration’ among the social members as well as administrative institutions. We are also necessary to revise the practice of law in court and legislation not to neglect the procedure, because we shall also consider the viewpoint of ‘guaranteeing equal living relations’ in space. Authorization about Scheme of Execution is an administrative plan decision for large-scale public facilities. It is disposable by the administrative agency and planned discretion is used for balance between so much related public interest and private interest. It is not exact if we call it Authorization because it’s character is belongs to patent which is generated to privilege to build public facilities for public interest. It is a principle that the Authorization about Scheme of Execution for Public Facility should be issued with conditions under various complex laws and ordinances. But it is often that the jurisdictions and procedures are concentrated with the provision of ‘legal fiction of Authorization and Permission’ or ‘concentration effect’. This legal system is very convenient for promoting administrative efficiency on the surface, but if we look inside, it neglects often the process for resolving the conflicts of many interested parties. This is related to the reality of our administration, which has lead to development- oriented administrative policies, and it remains a paradigm of unilateral administration or ‘command and control’ administration. It is time to transfer to the stage of interactive administration to resolve public conflict through sufficient discussion and dialogue rather than development-oriented decision. Now I suggest that we change the paradigm interactively, either by introducing a ‘German plan confirmation procedure’ or by implementing a modified version of our ‘legal fiction of authorization and permission’. Therefore, as in the German ‘German plan confirmation procedure’, we have to amend the legislation including ‘administrative procedure law’ so that important procedures for resolving conflicts of people can not be omitted.
  • 2.

    Undergrounding of Transmission Lines and Eminent Domain in the U.S.

    Soon Chul Huh | 2017, 78() | pp.37~68 | number of Cited : 3
    The conflicts and confrontations between Korea Electric Power Corporation (KEPCO) and the local residents surrounding the power towers and the transmission lines in the so-called “Miryang Transmission Tower Case” has been increasing public concerns over underground transmission line. The line draws public attention as a remedy for the problems arising from installing overhead transmission line, including but not limited to, limitation on the use of land due to power tower and cable, devaluation of the property, negative aesthetic impacts and adverse effects of electromagnetic fields. In the U.S., power companies have installed almost all power transmission lines overhead due to high cost of installation and difficulty of maintenance, except for urban area with high dense population and residential area that are not suitable for the installation of overhead transmission line. In general, every State authorizes public utility commission or siting council to permit underground transmission line project. Although the process of permitting installation of transmission line, overhead or underground, varies state to state, public utility commissions usually consider the factors such as necessity of installation, impact on reliability, and evaluation of environmental impact, etc. When a proposed project for underground transmission line is approved, a utility usually purchases the property concerned or establishes easement on it in order to obtain right-of-way that enables the utility to build the transmission line and to use the land for maintenance purposes. Then, when the utility fails to obtain easement through negotiations with landowners, the utility exercises eminent domain power to get easement by paying fair market value. In the meantime, it is not scientifically proved that electromagnetic fields cause disease including childhood leukemia, the courts usually order to compensate for the devaluation of the property caused by the fear of the electromagnetic field. According to an empirical study, overhead transmission line causes a 10 percent or so decrease in value, but, until now, there is no literature about how much underground transmission line lowers real estate value. In sum, in the U.S., state’s public utility commission regulates project for undergrounding transmission lines, and courts, state-appointed commission or jury decide what is just compensation for the property to be condemned according to appraisals’ valuation of the property.
  • 3.

    Law-Policy review to improvement of the housing welfare for low-income class

    Kim Hun | Lim, Suk-Nyeo | 2017, 78() | pp.69~94 | number of Cited : 1
    In this study, it will mainly look at the public rental housing that has been utilized for people's housing welfare policy and housing expense aid policy, and it focuses on suggesting improvement direction about its problems. It tried to find out the implication for preparing the policy for improvement of housing welfare for low-income class by theoretically reviewing about housing welfare policy and considering characteristics of other countries' housing welfare policy. Thus, it tries to examine the policy that is being used as housing welfare policy for low-income class by dividing into the supply centric direct policy means and the housing expense aid centric indirect policy means. As the President Moon Jaein's new government emphasized improvement of housing welfare and carrying forward social integrated housing policy such as preferred supply to socially disadvantaged class and continuous expansion of housing allowance, carrying forward human centric housing welfare related policy that emphasizes rather housing wefare than supporting the real-estate market through large-scale development or relief of regulation is likely expected. Through this, we are looking forward to practicing appropriate combination of policy means in terms of reflection of various desires of low-income class, practice of revitalization welfare policy, and supply and demand and public housing rental system's efficiency.
  • 4.

    Responsibility for Purifying Soil Pollution and Remedies in Public Law - Focused on the comparative legal review of the Federal Land Conservation Act of Germany -

    Chung, Nam-Chul | 2017, 78() | pp.95~120 | number of Cited : 0
    Today, damage to soil pollution is becoming an increasingly important social problem in that it is persistent and difficult to recover, and the importance of soil in relation to climate change is emphasized. The responsibility of purification is important in Soil pollution. Conventionally, the Constitutional Court found that the pollutant clause could not be applied indefinitely. There is also a concern that due to this decision of the Constitutional Court people can avoid the responsibility of purification. In Germany, it also issues a purification order for liability of behavior as well as liability of state. Recently, the Supreme Court has recognized the liability of illegal acts against former landowners who do not have a direct business relationship when causing soil pollution and circulating contaminated land. The Korean Soil Environmental Conservation Act regulates discipline subjects comprehensively compared to the Federal Land Conservation Act of Germany. In order to prevent and eliminate soil pollution, it is effective to specify the object of discipline more specifically. It is also desirable to specify the survey of soil contamination in conjunction with the purification order. Investigation of general soil contamination is also important, but in some cases it is necessary to determine if soil contamination should be investigated and intervened. In particular, it is important to specify specific intervention requirements in the case of administrative agency discretion. The more specific the discipline object is defined, the more likely it is that the judgment of intervention will become clear. The provisions on "liability without fault" of polluter are very vague and should be amended so that the meaning of "no-fault" can be highlighted. As a remedy for civil and legal rights in public law, tort claims may be taken into consideration, which may be a matter of liability of states for omission or nonperformance. In such cases, the "claim for administrative intervention" may be considered as a special right.
  • 5.

    A public review on the collection of information such as spatial information in terms of basic rights protection

    신평우 | 조덕근 | 2017, 78() | pp.121~144 | number of Cited : 1
    The efforts of the public sector to acquire spatial information in order to collect information for maintaining order and to expand the service of the people by building various spatial information may be a natural book of the modern nation. It is also understandable that many companies around the world who provide various services using spatial information are not only profitable but also efforts to make people a more convenient world. However, it is also necessary to examine the possibility that such national administration and private enterprise's efforts for the people may sometimes infringe on the basic rights of the people, and the legal limitations must also be clearly defined. In particular, as we have seen in this study, the risk of information infringement by private companies shows a degree of severity that surpasses that of state agencies. Therefore, the third - party effect of basic rights in the Constitution is done in a lot of fields in the advanced information society, and it poses problems in various information laws along with constitutional issues. First of all, it is necessary to identify the minimum preconditions that will ultimately be compatible with the spirit of information protection, while at the same time enjoying the high benefits of spatial information services and protecting the moral and property rights of related parties. The level of fundamental rights protection for the parties or assets caught in spatial information gathering is insufficient, and the key domain of the information self - determination right guaranteed by the Constitution is at stake. It is therefore clear that the ineffectiveness of the state can no longer be in line with the constitutional value order. A series of processes for collecting spatial information should be accompanied by all possible legal and technical measures to ensure that the fundamental rights of the parties are not violated. The first original data should be deleted or the data that can be regarded as personal information should be treated as unrecognized, and rights like the objection right of the parties should also be secured procedurally. As a result of this study, the legal and technological direction that can be verified through the examination of the possibility of the basic rights in the Constitution, the third - party effects of basic rights, conflicts of basic rights and profits are as follows. First, when gathering spatial information to comply with the principles of the due process in the Constitution and the strict application of the principle of excessive prohibition, the information is closely related to the citizens' right to information self-determination, so its purpose should be clear and necessary It should be collected in a legal and fair manner within a minimum scope. It should not be used for purposes other than the purpose. Also, it should ensure the accuracy of the processing information, ensure the safety of the protection, , The collection and utilization of spatial information, and the handling of personal information should be disclosed, and the right of the information subject, such as the right to request the viewing of processed information, should also be guaranteed. Although it is considered to be the most desirable method to establish the "Individual Space Information Protection Act" (tentative name) that contains these principles and contents, much more effort and time are needed, so a more realistic and short- It is a plan to establish new regulations on protection. If spatial information is classified into individual related basic spatial information, basic spatial information likely to be related to individual, and basic spatial information not related to individual, and the level of protection for each of the information is determined differently, The level of protection will have to be determined.
  • 6.

    Konkretisierungsaspekte der Neuen Verwaltungsrechtswissenschaft und der Begriff des Gewährleistungsstaates

    Sung-Soo Kim | 2017, 78() | pp.145~168 | number of Cited : 11
    Mit dem steuerungswissenschaftlichen Ansatz soll die Eigenständigkeit der verwaltungsrechtswissenschaftlichen Betrachtunsweise gewährt, zugleich sollen aber sozial- und wirtschaftswissenschaftliche Erkenntnisse einbezogen und die tatsächlichen Verwaltungsabläufe einschließlich des Verhaltens der Rechtsakteure und der daraus resultierenden Folgen systematisch aufgearbeitet werden. Die Neuausrichtung führt damit nicht nur zu einer erheblichen Verbreiterung der verwaltungsrechtswissenschaftlichen Untersuchunsfelder. Sie muß auch als ein Versuch gelesen werden, die historisch gewachsene, anwendungsbezogene Perspektive zu überwinden und eine eigene wissenschaftliche Perspektive auf das Recht zu gewinnen. Der Governance-Ansatz fragt nicht nach den Akteuern, sondern nach Regelungsstrukturen, innerhalb derer verschiedene staatliche und nichtstaatliche Akteure auf unterschiedlichen Ebenen zur Regelung kollektiver Sachverhalte zusammenwirken. Bei der Public Private Partnership ist der entscheidende Schritt die Systematische Vernetzung der Beziehungsgeflechte staatlicher und privater Akteure durch organisatorische und prozessuale Arrangements zu einem Intermediärbereich. Dieser Intermediärerbereich hat Bedeutung als Experimentfeld und Steuerungsreserve. Bei dem steuerungswissenschaftlichen Ansatz handelt es sich um das Verbindungselement von Aufgabe und Handlungsinstrumenten. Hier werden vor allem Handlungsformen, Verfahrens- und Organisationselemente gebündelt und auf die Problemlagen bezogen. In diesem Sinne wird die Sensibilisierung klassischer Dogmatik durch die Steuerungsperspektive besonders deutlich, wenn deren systematischer Aufgabenbezug zum Tragen Kommt.
  • 7.

    A Study on the The Administrative Order Punishment

    Jae-Ho Kim | Hae-Ryoung Kim | 2017, 78() | pp.169~195 | number of Cited : 8
    The Administrative Oder is different from the Administrative Punishment iompdssed as a judgment in the criminal trial in that theAdministrative Office can selfimpose the administrative Duty. There is a separate legal basis for penalties impdsed. It is defined in law of violation of oder establisched in 2006. It is alse recognized that thefine of nehligence is not required to be intentional and negligent of the actor, Hs com. However, the law on violation of the law can not impose a justificable reason for not knowing the existace of an administrative obligation. The Suprimcourt has adapted the provison of nonfines for persons and the age of 14 years, in cases where there ist no intention or fault of oder violation by accepting the opinion of the case, and it is recognized that the criminal law applies also to administrative oder. However, there is a need to improve the legal system for the concept of violation of oder, illegality, sculpture and remedy system of rights in the future. The trend of such a legal system means that the dependency between criminal law and administrative law is strengthend.
  • 8.

    A review on the relation of legal term conception and legalism in Korean administrative law

    Won Jung Kim | 2017, 78() | pp.197~212 | number of Cited : 0
    For the development of a country and its society. the country has an authority to order and force the people to do what it enforces by the law. So, the people have obligations to do what the country orders and their rights are limited by the law. But, when restricting the rights of the people and imposing obligations to them, the country should be in accordance with the Constitution that guarantees the fundamental rights of the people. Unless it is, it could infringe on the fundamental rights. In this reason, placing restraints on the people's rights is strictly regulated by the law, which is legislated by the congress, The law stipulates related matters with the rights of the people so that the people should clearly understand the regulations in the law. To do so, the terms demonstrated in the law should be general and common sense. As a result, it accords with the purpose of legalism that the law pursues. In spite of that, the regulations in the current law of administration are so vague, even being stated in Chinese characters, that they are difficult to be understood. Therefore, they should be stipulated specifically and clearly. That is the basic thing to make sure the fundamental rights of the people. By doing that, the country is able to attain the purpose of the legalism. In conclusion, in order to achieve a law-abiding administration, this study suggests that the terms in the law should be stated in realistic words people usually use in their daily lives by limiting the usage of vague and abstract terms.
  • 9.

    A Study on the Legal Issues of Data Attributes and Localization Norms

    Hyunkyung KIM | 2017, 78() | pp.213~260 | number of Cited : 10
    Governments in recent years are making efforts to legislate data localization as part of a broader effort to advocate digital sovereignty. The attributes of the data are based on un-territoriality. However, sovereignty is the power that characterizes the absoluteness and permanence of a nation based on territory. The Internet-based space as a space where data is generated and circulated is the domain of sovereignty. Therefore, in order to exercise jurisdiction as the exercise of sovereignty over data in the Internet space, it must first be possible to manage and control data. The normative attempt to constrain the attributes of such data in accordance with the principle of territoriality is called ‘data localization’, which restricts the location of data. The data localization norm itself is in fact contrary to the technical nature of the data. Therefore, there is a limit to completely prevent the technical effect only by setting the norm. However, norms are not necessarily dependent on technical attributes and does not necessarily conform to the technical attributes, rather, it is desirable that institutions be designed so that technical attributes can work in a way that is beneficial to human life. Localization of all data is completely contrary to the technical nature of the data and is realistically questionable. However, localization should be pursued for specific data indispensable for national sovereignty, such as the privacy of citizens, national security, and public records. The localization norms for other data are not uniformly set for all countries in view of the economic ripple effects, the necessity of data cooperation, and so on. The principle of localization based on reciprocity, which is the most basic principle for the realization of external sovereignty, is reasonable. In addition, data localization is rather easy to utilize as a means of government monitoring and control, which also hinders the development of democracy, which is the institutional guarantee of national sovereignty. In addition, data localization can be exploited as a means for the government to monitor and control the people. This is also detrimental to the development of democracy to institutionalize popular sovereignty. Therefore, when setting the data localization norm, a means for not causing the improper result by the arbitrary public power will have to be necessarily provided with.
  • 10.

    A Study on the Relation with Public Duties of Article 8 in The Improper Solicitation and Graft Act

    Yongjeon Choi | 2017, 78() | pp.261~281 | number of Cited : 10
    Since the Improper Solicitation and Graft Act does not have a legal definition of 'Relations with Public Duty', it is necessary to examine the foreign legislation on 'Relations with Public Duty' of the Prohibition of Acceptance of Financial or other Advantages, in reviewing the Penalties and legislation process about Relations with Public Duty, we also studied the relationship with 'Relations with Public Duty' in bribery crimes in criminal law. Duty range and contents, a criterion of Relations with Public Duty are suggested. And I introduce the viewpoint of 'Anti-Corruption & Civil Right Commission' related to 'Relations with Public Duty' and specific cases of the Supreme Court and the lower court. Through these researches, I suggest the improvement to emphasize ‘integrity’ in the purpose clause considering the relationship between the legislative purpose of the Improper Solicitation and Graft Act and 'Relations with Public Duty', a plan to improve the article by separating Article 8 (3) into independent articles and choosing a simple and clear legislative method it is possible to make it easier for the people to understand and comply with the contents and procedures of the regulation, and the reform program of various step-by-step levels to ensure the proportionality of the penalties based on the Relations with Public Duty and the amount of money.
  • 11.

    Legislative review on the Customs Act - permission clause of duty-free shop -

    Hong Wan Sik | 2017, 78() | pp.283~299 | number of Cited : 2
    This article deals with the legislative procedure of the Customs Act, especially about the license period of the duty free shop. According to the revision of the Customs Act in 2013, the license period of the duty free shop is changed to 5 years from 10 years. It means that the duty free shops renew the license every five years. A person who intends to establish and operate a licensed bonded area shall obtain a license from the head of a customs office. This shall also apply where he/she intends to renew the existing license. A person who intends to obtain a license for establishing and operating a licensed bonded area, a person who establishes and operates a licensed bonded area or any other person who intends to renew his/her license shall pay fees, as determined by Ordinance of the Ministry of Strategy and Finance. Requirements for obtaining a license shall be determined by the Commissioner of the Korea Customs Service according to Customs Act. The license period for any licensed bonded area shall not exceed ten years according to the §176 of the Customs Act. But notwithstanding §176 (1), the license period for a bonded store shall be within five years according to the §176-2 (5) of the Customs Act. A license to operate a bonded store shall be granted after an application for such license filed by a person that meets the specified qualification requirements is examined according to evaluation criteria.
  • 12.

    A Study on Legal Problems of Artificial Intelligence (AI) Robot - Focusing on EU Legislative Trends of RoboLaw -

    Ryu Ji Woong | 2017, 78() | pp.301~326 | number of Cited : 19
    With the evolution of artificial intelligence (AI), production will explode in the future, and how to distribute it is an important social agenda. There are also many legal issues related to artificial intelligence in law. As a result of the development of science and technology, artificial intelligence (AI) is an ethical object, and if the scope of ethical subject extends to artificial intelligence (AI), legal responsibility for artificial intelligence itself Access is required. It is because the voluntary actions of those who own and use artificial intelligence affect not only human beings but also the world, legal action against them is the subject of important discussion in the future. At the present stage of the technology, the similarity of artificial intelligence (AI) with human intelligence algorithms and discussions related to human brain science are very important to us. In this paper, we first examine the issues of AI and epistemology, and the related artificial intelligence algorithms related to brain science and related issues of human brain analysis, and then compare the relationship between artificial intelligence (AI) Review. Next, the evaluation of the legal act of the robot with AI is reviewed about the responsibility of whether to view it from the actor 's point of view or the tool. Specifically, we will examine the legal policy issues in relation to the changes in the artificial intelligence (AI) area that has come into our everyday life, such as autonomous vehicles, copyright, IoT, and other changes related to the fourth industrial revolution. Ethical standards are crucial in the development and application of artificial intelligence so that the development of artificial intelligence does not pose a threat to mankind and humans enjoy the benefits of various knowledge services. As mentioned above, in the major countries, an ethics charter has been enacted. In the case of Korea, the robot ethics charter was enacted in 2007 to respect human dignity of human beings and robots. And to protect and preserve the principle. However, rather than simply ending the discussion, the study of the ethical standards of artificial intelligence should reflect all the opinions of scientists, ethics scholars, psychologists, lawyers, doctors, religious scholars, and educators. In this paper, we propose a robotic robot that can be used as a robot in the field of robotics. In this paper, Finally, to the present, the most active discussions on AI related to each country and the relevant regulations and contents of the EU, which are specifically enacted in relation to AI robots, (AI) and related legal policies in the future.
  • 13.

    A Study on the principles of French unity and the rule of governance

    BAEK YUN CHUL | 2017, 78() | pp.327~348 | number of Cited : 0
    This thesis is discussing the implications of France's governing bodies and examining the implications of the governing body during the revision of the constitution, which is discussed in Korea. Before discussing French governance, the principle of forming a French government is important in defining the French government, and discussions on the governance of the ruling body will be discussed. Hopefully, this paper will help the government revise the South Korean government's constitution. A semi-presidential system is a system of government in which a president exists alongside a prime minister and a cabinet, with the latter two being responsible to the legislature of a state. It differs from a parliamentary republic in that it has a popularly elected head of state, who is more than a purely ceremonial figurehead, and from the presidential system in that the cabinet, although named by the president, is responsible to the legislature, which may force the cabinet to resign through a motion of no confidence. The powers that are divided between president and prime minister can vary greatly between countries. In France, for example, in case of cohabitation when the president and the prime minister come from opposing parties, the president oversees foreign policy and defence policy [these are generally called les prérogatives présidentielles (the presidential prerogatives)] and the prime minister domestic policy and economic policy. In this case, the division of responsibilities between the prime minister and the president is not explicitly stated in the constitution, but has evolved as a political convention based on the constitutional principle that the prime minister is appointed (with the subsequent approval of a parliament majority) and dismissed by the president. On the other hand, whenever the president is from the same party as the prime minister who leads the conseil de gouvernement (cabinet), he often (if not usually) exercises de facto control over all fields of policy via the prime minister. It is up to the president to decide, how much "autonomy" he leaves to "his" prime minister to act on his own.