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

2020 KCI Impact Factor : 0.77
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2020, Vol.92, No.

  • 1.

    The Study on Appraisal Method of Orchard

    kyungkyu seo | 2020, 92() | pp.1~18 | number of Cited : 0
    Orchard belongs to the agricultural land but it requires land and fruit trees as a requisite, which makes it different with dry fields and paddies. For example, orchard often consists of various kinds, varieties, ages of fruit trees. Also, fruit trees have limited life span of its economic value but their value increase within a certain period. Specifically, a land owner and a fruit trees’ owner can be different in terms of law and related systems often treat fruit trees as independent things. The main appraisal method for orchard is sales comparison approach on the land and the fruit trees collectively. Due to the nature of the orchard, it is difficult to find comparable cases of sales and it is problematic to make an appraisal of the land and the fruit trees collectively when examining related system. Thus, there is much confusion and difficulty in appraisal practices. The purpose of this study is to analyze the present condition and problems of orchard appraisal and elicit the improvements and considerations. The results of the study are as follows: First, for improvements it is recommended ① To implement the appraisal of the land and the fruit trees individually. ② To apply comparison approach method of official land price for the land and sales comparison method for the fruit trees (which allows cost approach method or income approach method as an exception). Next, for considerations it is necessary to ① Be faithful to the reasonableness check and have the related contents stated on the appraisal report. ② Implement scrupulous review when applying sales comparison method ③ Implement faithful investigation on the affiliated facilities and write investigation results on the appraisal report.
  • 2.

    A Case Study on some Problems of Administrative Punishment Regulations in the Field of the Korean Public Land Law

    OH, JUN GEN | 2020, 92() | pp.19~42 | number of Cited : 0
    The term "administrative punishment" means "criminal punishment, such as imprisonment or fine, for violating administrative statutes." "Administrative punishment" is to impose criminal punishment, so the limits of the constitutional principle of "criminal justice" must be kept. Criminal punishment should be subject to only substantial crimes, which means "significant social and harmful acts of legal interest." Punishment should be the least necessary means of suppressing a crime. Punishment shall not be imposed if any other legal means other than punishment, i.e. administrative coercion or administrative fine, can achieve its purpose. However, there has been a constant problem in the Republic of Korea that the legislation of administrative punishment is quite contrary to the general principles of the Constitution and administrative law above. I sympathized with the question of "the legislation of administrative punishment is indiscriminate, unconstitutional in some cases, and very excessive legislation.“ Based on the above problem consciousness, this paper empirically analyzed the rules of administrative punishment prescribed in the law corresponding to the field of "Korean Public Land Law". The results pointed out that the following three problems were particularly noticeable and suggested ways to improve them. First, this article pointed out 10 specific cases in which the Act "does not specifically define the scope" or "comprehensive" enforcement rules or ordinances of local governments, and further proposed measures for improvement, such as Article 53 of the Building Act etc. Second, this article pointed out eight problematic cases that stipulated criminal punishment for violating orders from the administrative office, not violating statutes, and proposed measures to improve them, such as Article 13 of the Building Act etc. Third, specific cases of criminal punishment for failing to report were listed, the problems were pointed out, and measures for improvement were proposed, such as Article 111 and Article 19 of the Building Act etc. The core of the improvement measures presented by this paper can be summarized in two sentences: First, the "administrative punishment" especially the criminal punishment of imprisonment of the people who use the national territory and engage in construction activities for violating regulations under the administrative law should be limited to only necessary and minimal cases, and only to exceptional cases. Second, if it is necessary for the administrative office to enforce it in the process of taking administrative action in order to achieve the administrative purpose, it shall faithfully adhere to the principle that the inherent "administrative enforcement" means should be utilized under the administrative law.
  • 3.

    A Study on Smart City in Perspective of Public Land Law

    Im, Hyun | 2020, 92() | pp.43~59 | number of Cited : 0
    Smart City is a comprehensive platform that applies the convergence technology of the Fourth Industrial Revolution, and is attracting attention from countries around the world as a solution to urban problems and a sustainable city model. In our case, Act on the Promotion of Smart City Development and Industry regulates the content of smart cities, but there are still many tasks to secure the successful introduction and sustainability of smart cities. This thesis presented the problems and improvement measures of the smart city Act from the perspective of the public land law. First, it is necessary to improve the rules for the procedure for establishing smart city plans. Specifically, the authority to establish a smart city plan needs to be granted to autonomous districts of regional local governments, and a public hearing procedure is required when plan is established. Regarding the regulatory sandbox, it was mentioned that the relationship between the smart innovation project and the smart demonstration project needs to be clearly structured, and unnecessary redundant regulations need to be legislated. Finally, it was pointed out that for the realization of a smart city, it is necessary to consider buildings or facilities in the legal system, and intelligent buildings in the Building Act are representative examples, and legal maintenance and supplementation are necessary. It is hoped that the smart city will realize its original purpose of solving urban problems, improving the quality of life for citizens, and pursuing a sustainable city through continuous legislative improvement on smart cities.
  • 4.

    Study on the Improvement of Legal Systems related to Industrial Complex - Focusing on the necessity of ‘Framework Act on Industrial Complex Policy’ -

    Cheol-Soon Chang | Park, Jong-Joon | 2020, 92() | pp.61~91 | number of Cited : 0
    Industrial complexes, which have actively driven the rapid growth of the national economy for the past half century in Korea, are positioned as a key hub for the growth of domestic industries, revitalization of the regional economy, and balanced regional development. However, the domestic industrial complex policy is currently facing challenges such as digital convergence economic problems based on Artificial Intelligence, Big Data, and Internet of Things, environmental problems such as Climate change and Energy depletion. In particular, it is constantly being argued that the relevant legal system supporting the industrial complex policy should overcome the limitations caused by individual, decentralized and closed legal structures. Based on this awareness of the problem, as a result of analyzing the legal system for industrial complexes, the unclear legal status of the 「Industrial Sites and Development Act」 was confirmed. In addition, there were the limitations such as the lack of linkage and effectiveness of regulations related to industrial complex policies, the complexity of the legal system due to the mass production of special laws, and the need to effectively promote new industrial complex policies such as the Smart Green Industrial Complex. In order to effectively overcome the limitations of industrial complex-related legislation, various factors should be comprehensively considered. These include organic cooperation between relevant ministries, establishment of an integrated linkage system between industrial complex policies, introduction of an industrial complex management system for each life cycle, and the need to establish industrial complex policies on a mid- to long-term basis. As a result, it is proposed to enact the ‘Framework Act on Industrial Complex Policy’ for the purpose of improving the industrial complex legal system. Considering the simplicity of the legal system improvement direction, the specialization and reinforcement of each relevant law, and the aspect of smooth consultation between administrative agencies, this plan can be concluded as the most realistic and efficient alternative. The ‘Framework Act on Industrial Complex Policy’ will not only contribute to a new paradigm shift in the industrial complex field, but also contribute to the achievement of key tasks for national development such as industrial innovation and balanced regional development, etc.
  • 5.

    Zur Rechtsordnung der Straßen im Verhältnis von Straßenbestand- und Straßenverkehrsrecht

    Inkook Kay | 2020, 92() | pp.93~112 | number of Cited : 0
    Die vorliegende Arbeit beleuchtet die Rechtsgebiet der öffentlichen Straßen zur systematischen Abgrenzung zwischen dem Straßenbestandrecht und dem Straßennutzungsrecht insbesondere dem Straßenverkehrsrecht. Ein Recht an der Straßen gehört zum Straßenrecht, das ein typisches öffentliches Sachenrecht ist. Mit der Widmung öffentlicher Straßen liegt das Straßenrecht den widmungsmäßigen zugelassenen Nutzunsrahmen bzw. Verkehrsverhalten der öffentlichen Straßen fest(Vorbehalt des Straßenrechts). Freilich lässt Straßenrecht als Gemeingebrauch zu, was nach Straßenverkehrsrecht zum Verkehr gehört(Vorrang des Straßenverkehrsrechts). Straßenverkehrsrecht stellt als ein Recht auf der Straße und ein Rechtsgebiet des Gefahrenabwehrrechts. Das Verhältnis von Straßenrecht und Straßenverkehrsrecht wird nicht exklusiv gezogen, sondern anhand der sog. Mitbestimmungsformel aufgeräumt. Anhand dieser Formel wird hier die höchstgerichtlichen Rechtsprechungen über Verkehrsvorgänge kritisch analysiert.
  • 6.

    Current Status of Real Estate Price Disclosure System and Legal Policy Issues

    Chung Tae Jong | 2020, 92() | pp.113~129 | number of Cited : 0
    It has been 31 years since the official land price system was introduced in 1998. The legislative objective at the time of the introduction of the public land price system appears to be still in the process of implementation, and the various legislative policy tasks that were expected to be addressed by the introduction of the public land price system, namely, reflecting the actual transaction price, establishing taxation standards through the readjustment of land valuation criteria by various entities, and evaluating land based on expertise, have not found a breakthrough solution to this day despite the introduction of various attempts and discussions and policy measures. In our society, land and other real estate functions as an object that combines the nation's major long-term development plan, citizens' high interest in housing issues, and functions as a major form of property, so such legislative policy tasks are still considered to serve as the main agenda items for discussion. In particular, the improvement of the actualization rate of the declared value of real estate should be implemented in a predictable manner, considering the reduction of the imbalance that existed between the declared values of multi-family housing, detached houses and land, the reversal phenomenon of the declared value of detached houses, the use of special land, and the enhancement of equity by price range within the same type. In addition, the assessment of the real estate price disclosure system and the securing of price uncertainty, objectivity and transparency due to the uncertainty of the calculation process are necessary factors to enhance the reliability of the real estate price disclosure system. The period of objection to the quoted price which acts as a basis for various burdens should be sufficiently guaranteed to ensure relief from the quoted price.
  • 7.

    The Review on the Gap between Public Property Law and Practice and Legislative Tasks - Focusing on Public Waters like rivers -

    SUNG BONGGEUN | 2020, 92() | pp.131~152 | number of Cited : 0
    Due to recent climate change, natural disasters related to river flooding or extinction are frequently occurring. Even in the case of public waters, various questions about the effectiveness of the norm and the gap between law and practice are asked whether there are any significant problems with the existing legal theory and legal system. Public Property is specially regulated by public law through public designation for public purposes. Legislation should be in place so that the administration can effectively and successfully achieve public objectives for various tributaries such as roads, rivers, ports, airports, parks, and cultural properties. However, the gap and separation between law and reality is severe in administrative law with various individual fields. Legislation on Public Property should also continue to investigate and discover the gap between law and reality, and make legislative efforts to reduce the gap. The Ensuring State is obligated to guarantee the use and benefits of Public Properties through legislation for the welfare and survival of the people. When we fulfill the legislative obligations to reduce these gaps and catch up with the reality, we can in the course of the administration easily find the standard to solve the problem and implement it. And we can also easily accomplish the justification of the court's ruling. In order to find and reduce the gap between these laws and reality in various individual fields related with public property, above all in this article I have focused on and discussed the scope of public waters. Especially Article 2, Section 1 of the 「Act on the Management and Reclamation of Public Waters」 shall be revised to fundamentally correct the phenomenon of misinterpretation and application of laws due to inconsistencies between reality and norms. It should be possible to match the norms with the reality without discrimination. Whether the kind of Public Property is state-owned, shared or privately owned, systematic management for public welfare of water should be made successfully and effectively. Including the land adjacent to the water surface or current can provide a legal basis for solving the problem through legislation. Considering the characteristics of water, the legislation can consider a concept of shared water and thus is able to manage for rational use and useful use of water. In addition to water and water currents, it is necessary to establish a system of legislative work (laws, legal statute, and administrative rules) to include adjacent lands in the concept of shared water and to establish standards. In addition, it is necessary to amend ‘PUBLIC WATERS MANAGEMENT AND RECLAMATION ACT’ so that complex laws can be applied very well reducing and overcomin the gap between law and practice.
  • 8.

    Legislative Policy Tasks for Inter-Korean Economic Cooperation

    Heo, Kang Moo | 2020, 92() | pp.153~169 | number of Cited : 0
    With the two inter-Korean summits (Panmunjom and Pyongyang) and the North Korean summit (Vietnam and Singapore) held in 2018, discussions on the denuclearization of the Korean Peninsula and the opening of the North Korean economy are actively underway. On the other hand, due to the nature of inter-Korean relations issues, it is difficult to achieve concrete results within a short period of time, and unexpected obstacles are often created in the process of implementing long-term policies, so institutionalizing the contents of the agreement on inter-Korean relations through legislation and securing public support are essential issues. Therefore, the purpose of this study is to first examine the comparative analysis and implications of legislation related to the land development of North Korea and Vietnam, examine the trends of North Korea's land and economy since the inauguration of the Kim Jong-un regime, and draw up legislative and policy tasks for smooth inter-Korean economic cooperation in the future.
  • 9.

    A Study on the Improvement for Legal Environment in Cadastral Administration

    Seok, Ho Young | 2020, 92() | pp.171~195 | number of Cited : 0
    Although the system of "Cadastral Administration" has been established and carried out nationwide, it is time for a fundamental review of the implementation system of "Cadastral Administration" that has continued to date as "Delegated Administrative Affairs" gradually being abolished as part of strengthening a decentralization. In particular, there is still confusion in the legal judgment for the disposition of “Cadastral Administration”, and it will be necessary to revise relevant laws to ensure a legal safety of “Cadastral Administration” by minimizing it. In the past, the consistent interpretation of the precedent was that the act of registration of cadastral studies could not constitute an administrative disposition subject to an appeal because its disposition was not recognized as an act that does not cause any change in the actual relationship of rights to the land as a result of the registration or change of the relevant year. However, given that landowners are subject to certain restrictions on the use, income, and disposal of land based on land, such as the regulation of public land laws, the imposition of development charges, the taxation of local taxes, the calculation of official land prices, and the calculation of the value of compensation for losses, etc., the designation is a prerequisite for the proper exercise of land ownership and is closely related to the actual public relations of landowners’ rights. As the scope of recognition of the disposition of "Cadastral Administration" is gradually expanding, it is necessary to clarify the legal nature of the review conducted by the Cadastral Committee, and to review the current legal system related to "Cadastral Administration" in order to secure legal stability for the Cadastral Committee's decision. In response, this study seeks to present measures to improve the legal environment of Cadastral Administration, such as the Legality Review of Cadastral Survey by securing clarity and objectivity on whether or not to recognize the disposition of Cadastral Administration and by strengthening the effectiveness of the Legality Review of Cadastral Survey conducted by the Cadastral Committee.
  • 10.

    A Review on Administrative Measures for the Prevention and Management of Infectious Diseases

    Jang Kyo-Sik | 2020, 92() | pp.197~217 | number of Cited : 0
    Corona19, an unprecedented human history situation, has developed in Wuhan, China, and is spreading worldwide, threatening the lives of mankind. We have also taken various administrative measures to prevent infectious diseases and prevent the spread of infectious diseases in accordance with Corona19, which has led to social conflicts. Various guidance, recommendations, guidelines, administrative orders for the prevention of infectious diseases should not be overinfected because they are closely related to the lives of the people. However, since Corona 19, the state and local governments have been taking various administrative measures to create social conflicts for the public's health and safety, and a solution should be sought. In particular, the basic rights of the people's safety and health to prevent infectious diseases are important, but the freedom of religion, assembly, business, and privacy rights that are violated are equally important, so it is more important than ever to find a balance through mutual benefit. This is because a series of administrative measures taken by the state and local governments since Corona 19 are feared to conflict with the basic rights of the people, such as freedom of the body, freedom of religion and freedom of business, so it is necessary to conduct legal review to clarify the limits of administrative measures. In addition, various subsidies and support measures were prepared and national finances were injected as the people's economic life deteriorated due to quarantine measures under Corona 19. However, the government should seek a solution in that it will put a heavy burden on the nation's finances and the next generation. Therefore, it will be important to overcome the ongoing Corona 19 and respond effectively to the post-Corona era and to stay ahead of the global trend.
  • 11.

    Review of laws such as emergency disaster support fund under the US CARES Act

    Won Jung Kim | 2020, 92() | pp.219~236 | number of Cited : 0
    The government has prepared and paid emergency disaster support funds to the people to overcome the coronavirus crisis. Emergency disaster subsidies have been implemented in the United States faster than other countries and followed by the Korean government and other countries. In the case of the United States, the laws of emergency disaster subsidies have been established and enforced to help citizens get through the coronavirus. In the United States, the CARES Act was enacted by Congress, which regulates various types of remedies to protect people in the pandemic. The CARES Act stipulates that the government should operate various relief systems such as emergency disaster assistance, loan and its repayment delays for small business owners, citizen health care programs, and student loan repayment delays for those who received it under the Higher Education Act. All of these assistances are provided by federal finances. The expenditures by the government should be clearly stated in the law to be consistent with the rule of law. The rule of law purposes to protect the fundamental rights of the people by definitely stipulating important matters related to people’s basic rights in the law. That is why the rule of law is so called practical law, not formal one. Therefore, emergency disaster subsidies are citizens’ taxes, which are provided by the public's financial resources, so distinctly stipulating them in the law is consistent with the rule of law. In Korea, meanwhile, the emergency disaster support funds are paid through the resolution of the National Assembly since the korean legislation does not have any regulations regarding the emergency disaster support funds. It is necessary that the emergency disaster subsidies should be executed by voluntary decision of the government and plus they should be evidently regulated in the law for the protection of people’s basic rights by preventing budget wast. This study reviewed the US CARES Act to examine the legislative improvement of emergency disaster assistance funds. The analysis of the emergency disaster fund that the US regulates in the law could help improve the future korean legislation.
  • 12.

    Legal Review for Systematization of Artificial Intelligence and Block Chain

    ShinPyeongWoo | 2020, 92() | pp.237~258 | number of Cited : 0
    The systematization of artificial intelligence and block chain legislation can be defined as the advancement of technology, which is advocated as the Fourth Industrial Revolution, and institutionalization that completes the new society and human life. It has already been proven that this rapid development of technology is not enough to capture the existing "regulatory sandbox," indicating that the "Data 3 Act," the starting point of the artificial intelligence law, passed the National Assembly earlier this year. ‘Act 3 data’ about the lack of clarity and effectiveness of industry and the health care, however, Moon Jae-in, in turmoil for the government claiming through the ‘from data’. Systematization of artificial intelligence for the success of ‘Digital Deal’ also this legislation is the key. Therefore, as a priority legal review, the research specifically examined the direction of the current Software Industry Promotion Act, as well as the direction of the Act on the Promotion of the Software Industry, as well as the direction of the Act to prevent confusion in the Data 3 Act, the starting point of the data legislation. Next, Blockchain technology, a core technology of virtual currency, is rapidly spreading to all parts of society, including elections, finance, SNS, portals, private contracts, orders and deliveries, coupons, games, notarization, and advertising, due to various features such as concurrency, sharing, and dispersion of embedded information. In other words, block chain technology is combined with artificial intelligence and big data technology to create more diverse products, services and industrial businesses. Nevertheless, institutional supplementation of the block chain technology, which is divided into virtual currencies, is still quite insufficient. Therefore, in this Thesis, a specific legal review of virtual currencies was made for the systematicization of such block chain legislation.
  • 13.

    A Study on CCUS and carbon emission trading system

    Lee Soonja | 2020, 92() | pp.259~287 | number of Cited : 1
    The Paris Agreement reached an agreement between 195 countries to limit the increase in global average temperature to 1.5℃, exceeding the 2℃ target compared to Pre-industrial Era. Accordingly, Korean Government has declared to voluntarily reduce 314.37 million tons, 37% of the 2030 Business-as-Usual in the future, in the Intended Nationally Determined Contributions (INDC) for the implementation of the Paris Agreement. In addition, the “2030 National Greenhouse Gas Reduction Basic Roadmap” was finalized and reduction targets for each sector were assigned by the Korean Government. On October 28th 2020, President Moon Jae-in said, "We will move forward with the international community to actively respond to climate change and aim for 'carbon neutrality in 2050'." In order to reduce GHG emissions, the government enacted the “Act on the Allocation and Trading of Greenhouse-Gas Emission Permits” based on Article 46 of the “Framework Act on Low Carbon, Green Growth” and introduced the emission trading system. Head of central administrative agency plans to select a company to be allocated to set the total emission allowance and quota for each company, and gradually expand the paid allocation ratio from 3% to 10% (2021-2025). In addition, another GHG reduction plan is to build a foundation for storing up to 4 million tons of greenhouse gases and 6.3 million tons per year by promoting the CCUS integrated demonstration project by stages such as Capture and Utilization. Meanwhile, the EU revised the guidelines on the emission trading system. This revised guidance is explicitly included in Annex I by CCS in activities covered by the EU ETS. Therefore, in accordance with the CCS guidelines, carbon dioxide collected, transported and stored is evaluated as not being released. Korean Government is operating an emission trading system in accordance with the “Act on the Allocation and Trading of Greenhouse-Gas Emission Permits”, but there are no regulations in connection with the CCUS Act to be introduced. Therefore, I have reviewed the EU-ETS Directive and tried to suggest plan for linking 「Act on the Allocation and Transaction of Greenhouse Gas Emission Permits」 and the CCUS Act. I hope this idea will be enacted successfully.
  • 14.

    Legal tasks on the regulatory sandbox of ICT convergence technology and services

    KIM, NAM WOOK | 2020, 92() | pp.289~318 | number of Cited : 0
    In the era of the 4th industrial revolution, new technologies and services such as artificial intelligence, blockchain, Internet of Things, smart machines, and big data such as ICT convergence may not comply with relevant laws and regulations, and thus there is a concern that the development of ICT convergence may be impeded. Active self-regulation, smart regulation, or deregulation is required by negative regulation, active administration, and regulatory sandbox. Under the ICT Convergence Act, the regulatory sandbox system includes a rapid processing system, a batch processing system, a temporary permit system, and a special case system. New technologies and services such as ICT convergence have a lot of room for conflict with the regulations stipulated by the existing laws and regulations, and the dimension of the legal administration There is a need to reasonably improve the licensing system of related laws and regulations through temporary permits or special cases for demonstration. The main cases of regulatory sandboxes related to ICT convergence in Korea, the legal system of regulatory sandboxes under the ICT Convergence Act, and comparative legal review of regulatory sandbox legislation related to the United States and Japan, seek implications for Korea. It is true that the expiration date of temporary permission for new technologies and services such as ICT convergence or the validity period of the demonstration special case is guaranteed for a longer period compared to other countries, but it is regulated until the relevant laws are reorganized to ensure the consistency between the regulatory sandbox legal systems and the stability of the sandbox participants The sandbox should be made valid so that the actual rule of law administration can be implemented. In addition, there is a regulatory sandbox only in Korea for new ICT convergence technologies and services, but standards must be set and active cooperation between countries so that the regulatory sandbox can develop in the global market. Finally, regulations related to new technologies and services of ICT convergence In order to lead the 4th industrial revolution rather than focusing on the number of cases, the administrative decision should be made by interpreting the regulatory sandbox according to the principle of active administration, and the requirements for temporary permission and special cases for demonstration should be reviewed according to the proportional principle. something to do.
  • 15.

    A Legal and Institutional Study on Support for Digital Crime Victims - with priority given to digital sexual crimes -

    seon eun ae | 2020, 92() | pp.319~335 | number of Cited : 0
    Currently, the advancement of diverse technologies has facilitated exposure to massmedia via the Internet and smartphones in our society, causing various problems, and digital crimes are emerging as one of social issues. There is no single law that directly defines digital crimes. Instead, several individual laws prescribe punishment: act on promotion of information and communication network utilization and information protection, the criminal law, special act on the punishment, etc., of sexual violence crimes, act on the prevention of sexual violence and the protection of victims, etc., act on the protection of children and adolescents from sexual offenses, and the child welfare law. But these acts can neither cover all sorts and all parts of digital crimes nor include any precise stipulations on standards for the scope and content of digital information in connection with the infringement of rights such as privacy infringement or defamation. So there are limitations to these acts in terms of how to impose penalty or sanctions on digital crimes. Recently, the occurrence of digital sexual crimes that are part of digital crimes becomes a great warning to our society, and there are unavoidable problems with the ways of supporting crime victims on account of limited punishment and sanctions. Digital crime victims suffer damage in various ways on the cyberspace anonymously or under their real names, and they are harmed in the real world as well as on the cyberspace. Even though proper measures and support are both required eventually, they suffer collateral pain because of the lack of concrete stipulations. In particular, the number of digital sexual crimes in 2019 showed an approximately 47% increase from 2018, and support for digital sexual crime victims is necessary. The Digital Sexual Crime Victims Support Center offers various aids, but their support is not yet sufficient. Accordingly, the laws on support for victims of digital crimes, especially sexual crimes, should be improved, and how to regulate digital sexual crimes both domestically and abroad should be considered. Besides, the relief system for damages caused by digital sexual crimes should be improved, and prompt countermeasures should be taken. Finally, professional human resources who can back up digital sexual crime victims should be secured. These legal and institutional suggestions on support for digital sexual crime victims are expected to make a contribution to the protection of their rights.
  • 16.

    Tentatively named 「Carbon Dioxide Storage etc. Act」 draft as a part of the Integrated Environmental Act

    Moon-Hyun Koh | 2020, 92() | pp.337~366 | number of Cited : 0
    In the long term, carbon dioxide capture and storage (CCS) technology that reduces greenhouse gases on a large scale is in the spotlight. In order to evaluate the stability and efficiency of the CCS project and to minimize the impact on the surrounding environment, an environmental management system and legislation covering the life-cycle CCS process is proposed. The biggest issue with underground storage is whether there is a risk due to the leakage of injected carbon dioxide. This is because when carbon dioxide leaks, not only the storage efficiency is lowered, but also the health of local residents and the surrounding ecosystem are adversely affected. Therefore, it is essential to grasp the behavior of injected carbon dioxide and to prevent leakage. In particular, in the case of land storage, the protection of potable groundwater resources is the most important. Therefore, in order to ensure that underground storage is safe and eco-friendly, it is necessary to monitor all stages from site selection to closure during and after injection, and establish national licensing/license regulations and environmental management regulations. In Korea, CCS technology was also selected as a key fostering technology for low-carbon green growth in 2014. It has been revised and has established and promoted the basis for CCS technology development, which aims to commercialize CCS plants and secure international technological competitiveness by 2020. However, compared to such research and development, environmental management guidelines and legal regulations for environmentally safe CCS projects are still insufficient, and solutions related to public communication in particular need to be discussed further. In this study, the concept, importance, and international research status of CCS technology as a means of responding to climate change are briefly reviewed, and tentatively named 「Carbon Dioxide Storage etc. Act」 draft as a part of the Integrated Environmental Act is considered.
  • 17.

    Korean Constitutional Acceptability of Social Welfare State Ideology in North Korea’s Constitution

    Yongjeon Choi | 2020, 92() | pp.367~389 | number of Cited : 0
    North Korea has a socialist legal system, and South Korea has a capitalist one. North Korean social security laws function in the socialist system, and South Korean one’s function in the capitalist one. The two systems vary greatly in their theoretical and ideological underpinnings. However, their social security systems do not fundamentally differ in their function. This study examines North Korea’s social welfare system using the provisions of the North Korean constitution for social welfare and related laws. It also reviews the South Korean social welfare system that is stipulated in the Constitution of South Korea and provides a comparative analysis of the concepts of national social security and national social insurance in the North Korean Constitution, along with the concepts of social security, public aid, and social service as presented in South Korean law. An examination how the social security provisions of East and West Germany were integrated provides implications for the two Koreas. Along with these findings, the examination on how to integrate ideological elements of the North Korean social welfare state into that of South Korea led to the following conclusions on means of integrating the social security laws of the two Koreas. First, the speed of social security integration should be selected, whether radical or gradual method. Second, if the gradual method was chosen, a legal basis for establishing a long-term plan to achieve gradual integration should be prepared; if the radical method was selected, countermeasures against sudden expenditures should be devised. Third, the consensus of the Korean people on an affirmative action for North Koreans must be established. Fourth, to reduce the cost of unification, a detailed plan for the integration of the South and North Korean social security systems should be established, with detailed designs regarding individual programs and risks. Fifth, the ways in which the differences in legal terms under the social security laws of the two Koreas must be resolved to be gradually unified. Finally, efforts to exchange and share resources on the North and South Korean social security systems must be pursued to prepare for an integration of the two legal systems.
  • 18.

    A Constitutional Study on the Right of the Minister of Justice to Command and Supervise the Prosecution

    Lee, Sun-Hee | Kim, Sang-Kyum | 2020, 92() | pp.391~411 | number of Cited : 0
    The Minister of Justice and the Prosecutor General are heads of agencies under the administration, but the Prosecutors' Office is the agency belonging to the Minister of Justice. Unlike the Minister of Justice, the Prosecutor General is an administrative agency, but is the head of the Prosecutor's Office, a so-called quasi-judicial agency in criminal proceedings. For this reason, disagreement between the two sides in an important criminal case of political interest can lead to conflict. Of course, under the Government Organization Act, the Prosecutors' Office belongs to the Ministry of Justice, and the Ministry of Justice is the top institution. In criminal cases, the prosecution serves as an investigative agency on behalf of the state or as a plaintiff in a trial. Recently, the conflict between the Minister of Justice and the Prosecutor General is getting serious. In countries where political power influences the functioning of state institutions like Korea, politics always lurks behind the external rule of law. Of course, politics cannot be seen as governing the rule of law, and politics cannot judge everything. Nevertheless, as the political influence on the state function increases, the rule of law is bound to decrease. The premise of the rule of law is human reason, and reason generally refers to the ability to think and judge, and it can be said that it is the ability to properly judge truth and good or evil. Then, as a premise to become the rule of law, the law must be a legitimate law. The controversy over the power of the prosecutor general to direct and supervise the specific cases of the Minister of Justice stipulated in Article 8 of the Prosecutors' Office Act can be interpreted as a political or normative interpretation of the purpose or purpose of this regulation, or by appropriately combining the two. It is a question of whether or not. Under the Government Organization Act, the Prosecutors' Office is the office of the Minister of Justice. In this regard, administratively, the prosecution administration must be directed and supervised by the Minister of Justice. The Constitution gives prosecutors important powers with regard to guaranteeing the basic rights of the people in criminal justice procedures. Considering these points, Article 8 of the Prosecutors' Office Act requires the Minister of Justice to direct only the Prosecutor General in specific cases in relation to criminal cases, thereby excluding political influence. The constitution and laws prohibit only legal judgment and political influence in criminal proceedings. In the meantime, if Article 8 of the Prosecutors' Office Act has not been effective in excluding political influence in criminal cases, it should be abolished. In addition, it is necessary to strengthen political neutrality so that the prosecution reform does not have political influence on the exercise of the prosecution power in the direction of strengthening the guarantee of the basic rights of the people.