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2021, Vol.94, No.

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    Social Benefit Administration(Leistungsverwaltung) and Publicity(Öffentlichkeit) - Focus on a Comparative Study of Public Health Legal Institutions between Korea and Japan -

    Hwang Jihye | 2021, 94() | pp.35~59 | number of Cited : 0
    The social benefit administration(Leistungsverwaltung) is directly related to the lives of the people, such as social security, electricity, and water, and seeks high publicity. In the 1980s, privatization(Privatisierung) led to the deterioration of public service quality, which led to problems of publicity(Öffentlichkeit) in social benefit administration. It is the public health sector that has recently become more problematic. Contrary to our perception, damage caused by COVID-19 is serious in developed countries with well-equipped medical environments. According to a report published by the Lancet commission on February 2021, the reduction of public health care was cited as the reason for the most damage caused by COVID-19. This article aims to draw discussions on the publicity of public health care from the paradoxical situation where damage caused by COVID-19 is significant in U.S. and advanced medical countries of Europe. Public health care system includes Public health insurance and Public health agencies, and among them, discussions in Korea will be centered on public health agencies. Because Korea has a universal public health insurance system unlike the U.S., there seems to be little need for discussion. On the other hand, public health agency system has experienced the closure of Jinju Medical Center in 2013 and the resulting medical vacuum in Korea. Therefore, among legal institutions of public health, public health agencies will be discussed mainly, and more specifically, local medical centers that function as local central hospitals will be discussed. In order to do a more timely research, we would also discuss the relationship between the reform of local medical centers and countermeasure to the COVID-19. The main method of reforming local medical centers were the reduction of public health care through privatization(Privatisierung), which, as seen in the U.S. case, is related to countermeasure to the COVID-19. In order to develop the discussion, the writer would like to compare the legal institution of local medical center and the reform of local medical centers in Korea and Japan. The reason why Japan is a target country is because it has legal institution of local medical center that is very similar to that of Korea and experienced the most active local medical center reformation among East Asian countries. The aim of comparing legal institution of local medical center between Korea & Japan; and comparing the reform of local medical center between Korea & Japan is, in the midst of COVID-19 Pandemic, to find ways how local medical center in Korea can function as the main institution to countermeasure to COVID-19 Pandemic in Korea
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    The Public Concept of Land Ownership and Revision of the korean constitution - Alternative Search for the Public Concept of Land Ownership : Real Estate Economic Democratization -

    Heo, Kang Moo | 2021, 94() | pp.61~87 | number of Cited : 1
    Despite the fact that the public concept of land ownership is recognized in the interpretation of the Constitution based on the broad legislative discretion of land, there have been repeated controversies over the legislative policies related to the public concept of land ownership, such as the return of development gains. In order to solve these problems, there is a conflict between the position that the public concept of land ownership should be clearly stated in the Constitution and that it can be resolved through legislative policy through laws related to the public concept of land ownership. This study aims to examine the direction of the public concept of land ownership by comparing and analyzing the legal issues related to the public concept of land ownership and the opinions of the National Assembly and the government on constitutional amendment, as it is highly probable that ‘the public concept of land ownership’ will become a major issue of constitutional amendment if discussions on constitutional amendment take place in the future. It also aims to contribute to the preparation of desirable constitutional amendments by deriving foreign constitutional regulations and implications related to land. In addition, in this study, as part of the search for an alternative to the public concept of land ownership, I would like to propose a plan to expand Article 122 of the Constitution, which was called so- called the public concept of land ownership, from a clause limited to the public concept of land ownership to a clause of true‘Real Estate Economic Democratization’ through the establishment of a "fair lease" clause.
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    A Study on the Housing Lease System

    Lim, Suk-Nyeo | 2021, 94() | pp.89~114 | number of Cited : 1
    The protection of tenants prescribed by the Housing Lease Protection Act is also very important in terms of the minimum protection of rights based on the basic rights of the Constitution, which is the housing stability of the people. The sharp rise in real estate prices is causing serious problems with income polarization and imbalance among households. Therefore, the issue of housing poverty for newlyweds and young people has emerged as a problem for our society to consider ahead of time. The majority of newlyweds and young people, except for a very small number, usually rent houses. The Housing Lease Protection Act provides for a number of systems related to counterpower, collection of deposits, registration orders, lease term, renewal of contracts, right to claim demurrage, and protection of certain amounts of deposits. At the end of the lease, the renewed tenant may exercise his/her right to renew the contract only once only if the lessee refuses to renew or fails to change the terms of the contract six months before the end of the lease period. In such cases, the duration of the renewed lease shall be deemed two years. In other words, there is no provision for a 'right to seek contract renewal' that allows tenants to actively request renewal of the contract by recognising only 'implicit renewal'. Therefore, at the end of the two-year lease period, the lease relationship ends in principle, forcing the lessee to accept the rent increase unilaterally determined by the lessee and renew the contract or choose to move. In most cases, renters do not renew their contracts to accommodate new tenants at the market price because there is a limit to the legal amount that cannot be raised more than one-twentieth of the deposit even if the tenant tries to raise the lease deposit. As a way to this end, the protection of renters and tenants should be made together by calculating standard rent for each region, setting the upper and lower limits of lease deposits, and allowing them to raise lease deposits within the limit. In addition, it is a matter of collecting lease deposits at lease expiration. The current housing situation in Korea is scattered with unregistered and unlicensed houses for various reasons. However, housing subject to the tenancy registration order is limited to "registered housing". In particular, it is impossible to register lease rights in unauthorized houses, which can be regarded as mostly inhabited by ordinary people. Looking at the characteristics of housing leases, most of them are that after the deposit is received, the renter does not save the deposit received from the tenant in the bank, but is pushing for a new project using it as the basis. In other words, the landlord has secured a new deposit through re-lease and is returning the deposit to the existing tenant. Because most renters are using deposits from tenants as new housing or housing purchases. As a result, if there is no new tenant, the lease deposit cannot be returned even if the lease ends. This will result in an imbalance in the supply and demand of housing needed, which in turn will contribute to the increase in deposit. Preferred items such as apartments are fast to rotate, so there is no problem with tenants immediately at maturity, but multi-family homes and studio apartments, especially semi-basement, often do not rent well and often take a lot of time. In other words, specific and fundamental relief systems, such as deductions and immediate loans, should be introduced to landlords at maturity.
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    Review of the geothermal resources and earthquake prevention procedure in the United States

    Kim, Jae Sun | 2021, 94() | pp.115~140 | number of Cited : 0
    In 2010, “Enhanced Geothermal System Project for MW Power Generation”, one of the project funded by the Korean Government, geothermal project in pohang, has been introduced and performed under the “Framework Act on Science and Technology”, “Enforcement Decree of the Industrial Technology Innovation Promotion Act”, and “Operation Guidelines for projects for innovation of industrial technology”. After reviewing technologic aspect including geological, geographic, social and location conditions, pohang area has been selected as the main area to conduct geothermal project. After the earthquake of about 5.4 degree in Pohang occurred in 2017, the Korean Government Commission has determined that natural earthquake was “triggered by an artificial cause”. This paper focus on the United States cases, which include pre-evaluation and hearing in the process of site selection to geothermal resources development even though there is no clear relationship between the geothermal resource development and the earthquake. Geothermal resource refers to all resources(steam, gas, energy, by-products etc.), and the applicable regulations are not clearly defined because it was combined resources including liquid, gas and solid. In 1977, the Supreme Court held that the geothermal resources can be valuable under the Federal Mining Statutes. The geothermal legislations follows as The Federal Geothermal Steam Act, Geothermal Resources Act of California and New Mexico. Moreover, bidding system was introduced in 2005, specific land leasing agreement process was articulated. Especially the California Geothermal Resources Act specified “land excavation permit, drilling permit, penetration permit, geothermal energy sales permit etc.”, and protocol for addressing induced seismicity associated with enhanced geothermal system specified 7 stage review process. In Korea, legislations recognizing the unique legal nature of the geothermal resources, securing the safety, and acknowledging reasonable economic utilization value of the resources would be needed. Moreover, specific procedural rules including leasing agreement, geothermal resource development permit (each stage’s permit) needs to be considered.
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    A study on the responsibility for damages and the right to indemnity for nosocomial infection and group infections in the hospital

    Jeon, Hoon | 2021, 94() | pp.141~163 | number of Cited : 0
    The purpose of this article is reviewing the administrative responsibility due to infectious disease such as MERS and COVID-19, introducing the korean Supreme court’s cases in 2020 along with discussions on damage transfer and indemnity rights for nosocomial infection. Regarding compensation for damage caused by Pandemic, it is no longer realistic to solve disasters caused by disease with the civil law, and it is desirable for the state to understand them as compensation for the consequence, whether natural or social disasters. In addition, we examined some cases of korean Supreme court in 2020 about the compensation for losses and payment restrictions on medical institutions' quarantine and operating losses along with liability for damages caused by infections in hospitals. Through the recent revision of 《Infectious disease control and prevention Act》, the government recognizes responsibility for compensation for those who have interfered with the crisis that contributed to causing collective infections. Prior to the revision of the Act, the theory of management of affairs and unjust enrichment in civil law was discussed as the theoretical basis of the measures for right to indemnity. The revised law introduce the legal basis for claims for damages against those who increase the risk of spreading infectious disease, and it is regrettable that the clause on increasing compensation (three-fold compensation) of punitive Damage would have been introduced even if there is a possibility of future changes.
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    Review of legislative measures for introducing the Private Investigation system

    Won Jung Kim | 2021, 94() | pp.165~187 | number of Cited : 1
    Modern society pursues profits and leads economic life through various occupations. Industrial development and economic growth are generating various security demands. However, there is a limit to responding to the public's demand for security as a security work performed by existing public institutions. The private security industry that has developed along with economic growth is the private security industry, which has only relied on public goods so far, and the private sector has begun to take part in securing safety. Among the demands for public safety, the most important thing is the Private Investigator system. The introduction of the Private Investigator system has been discussed at the National Assembly for over 20 years, but the legislation has not yet been passed. In the past, the government announced that it would introduce a Private Investigator system to create jobs and meet the demand for public safety, but the introduction failed. The Private Investigator system should also be introduced in terms of the people's freedom of choice of profession, and in particular, it has the advantage of responding to the public's security needs by performing tasks in accordance with the demands of consumers in areas that the police agency is not responsible for. Since the private sector can make up for the areas that these public institutions are not in charge of, a safe society can be realized. Therefore, this study compared and reviewed foreign systems with respect to the Private Investigator system, and suggested a legislative plan for the investigation business that can be introduced into Korea in the future.
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    A Study on the Compensation for Administrative Losses of Small Business Restrictions

    Park Sehun | 2021, 94() | pp.189~207 | number of Cited : 4
    Although the nation's quarantine cooperation against the outbreak of infectious diseases without treatments and vaccines has been successful, small business owners are threatened with their right to live as Corona-19 has been unable to cover fixed expenses such as labor and rent. The government is providing disaster support to the nation and small business Enterprises in the form of subsidies, but the small business industry is arguing that subsidies are not enough and that losses should be compensated by business restrictions. The compensation for administrative losses is requested more strongly as the nation's need for various administrative actions increases in today's rapidly changing society. In other words, the form of property rights is diversifying and vast as society develops, and property rights can be set by legislators and limitations, and as the state performs market-controlled and public policy functions, the possibility of property rights being restricted or infringed is increasing. The exercise of illegal public power can be remedied by a claim for damages. However, violations caused by the exercise of such legitimate public power can be argued with constitutional petitions, unconstitutional legal trials, etc., but it is practically difficult to be rescued without legal grounds. Even if the exercise of public power is legitimate, the foundation of a democratic country will be shaken if it is tolerated without considering the loss of death. Therefore, it is in line with the principle of guaranteeing property rights and the administration of the rule of law to institutionalize the violation of the cause of death due to the exercise of legitimate public power to exceed socially acceptable level (special sacrifice). In principle, compensation for losses is recognized only if there is a provisions of the Act. According to the current Act on the Prevention and Management of Infectious Diseases (hereinafter referred to as the Infection Prevention Method), it is difficult to immediately recognize the compensation for losses due to the lack of business restrictions. In light of the general theory of loss compensation, it is a key issue whether the business restrictions in the infectious disease prevention method violate property rights to small business owners and become a special sacrifice beyond social restrictions. It is clear that it is the exercise of legitimate public power by public necessity, and that such exercise of public power infringes on the property rights of goodwill, and that it is natural to discuss compensation by excessively and intensively restricting certain operations. However, it is also true that it is difficult to clearly determine the business restrictions on the basis of unclear special sacrifices because there is no loss compensation regulation. It is expected to be meaningful in that it presents arguments that can determine whether it is a special sacrifice.
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    Building Permit Law and Bureaucrat’s Abuse of Discretion Power

    Cho, YoungJong | lee jae sam | 2021, 94() | pp.209~236 | number of Cited : 1
    This study investigated the legal nature of building permits, and reviewed the abuse of discretionary powers of public officials related to building permits. In particular, the focus was on the analysis of cases in which public officials refused to issue the building permit to a legitimate application for a building permit, in violation of the law through the abuse of discretion when residents filed a complaint against construction. In order to study how the abuse of discretionary power of public officials appears in the actual building permit process, I collected and analyzed 230 instances of reconsideration that were revoked because they were found to be illegal due to abuse of discretionary power in an Administrative Appeals Commission after the bureaucrats in cities, counties, and Gu offices across the country wrongfully refused to issue the building permit. Since construction is the fundamental right of the people, if the application for a permit does not fall under the restrictions of the law, the permit holder has a legal nature as a binding act that must be permitted. Nevertheless, cases in which street-level bureaucrats abused their power and didn’t issue building permits for reasons against the law after they received an increased number of civil complaints have been observed. It was confirmed that the level of civil complaints against the construction of the residents acted as a factor influencing the abuse of the discretionary power of public officials, such as causing administrative agencies and public officials to refuse to issue the building permit in order to cope with the political and administrative burdens arising from the resistance of residents.
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    The State of Unity in the Establishment of Modern Local Autonomy System - Focused on French -

    BAEK YUN CHUL | Lee, Dong-Kwang | 2021, 94() | pp.259~278 | number of Cited : 0
    The essence of a nation's form is to classify a single nation as a complex state, with no unity but the essence of diversity. In this paper, we will look at the ideological basis of French decentralization from an ideological perspective, focusing on the federal and single states of the composite states. In the past, there was a wide gap between a single state and a federal state, but in France, intermediate metropolitan municipalities are expanding, and relations between the two tend to be close and decentralized, with views comparing France's weakness in European communities with German or Spanish states. In a single French country, centralization and decentralization will take place depending on whether power is dispersed or concentrated. France is the country where this is well realized, and I think that from a historical point of view, addressing it as the ideological basis of these single and federal states will help us understand the history of French local autonomy. Recently, the issue of centralization and decentralization was of keen interest in realizing local autonomy in Korea, and based on this, the local police system and the recall system were introduced. In France, the distinction between the federal system and the national union system is clear from a legal point of view, but in real politics, the two are often confused. Especially during the French Revolution and the 19th century, from simple political alliances to the federal system of the United States, the two concepts were confused over and over again for the French.
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    A Legal and Institutional review of the types of introduction to Local Government Forms

    Lee, Jae-Ran | Cho Kye Pyo | 2021, 94() | pp.279~303 | number of Cited : 0
    The purpose of this paper is to present a model of local government composition suitable for our situation for the development of local autonomy and the efficiency of local autonomy through legal and institutional approaches in the form of local governments in Korea. In the meantime, Korea has implemented a system that is uniform in the form of local governments, regardless of population or class structure, close to institutional confrontation and parliamentary type. This system aims to ensure that the executive and voting agencies are separated and that checks and balances are made between local government agencies. However, the implementation of a uniform system nationwide without considering the self-righteousness of the head of the group and the population or financial status could not result in inefficiency of administration and local autonomy. Today's local administration needs to be more proactive in responding to changes in the environment. Society is diversifying and the environment of politics, economy, and society is rapidly changing, and population reduction and aging, housing, transportation, welfare, autonomous police, and environmental issues are becoming big issues. To solve these problems, diversification of the organisation of local governments is necessary. From this perspective, this paper aims to examine the need for diversification of local government forms, the theoretical examination of local government composition in Korea, and to present a form of local government suitable for our situation by learning foreign local government forms.
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    On the Study of Political Party Theory

    Lee Young Woo | 2021, 94() | pp.305~323 | number of Cited : 0
    Today's parliamentary politics is based on the majority principle, and under the parliamentary system, where the cabinet relies on parliamentary confidence and majority support, it cannot function without majority support in parliament, the supreme body of sovereignty. In addition to the inextricable relationship between today's parliament and the political party became the largest political organization in the democratic political system, and the success or failure of party politics became the determinant of the success or failure of parliamentary politics =. Therefore, today's parliamentary activity has meant the activities of each political party in the parliament, and furthermore, the supreme power of parliament has become the exclusive possession of the majority party rather than the enjoyment of the people. Let us then examine below how today's party, which has thus dominated parliament and administration, and even the entire nation's politics, is being conceived, and how it is developing and functioning in parliament.
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    Unconstitutionality of Restriction of Tax Service Area of Lawyers with Tax Accountant Qualification

    Moon-Hyun Koh | 2021, 94() | pp.325~348 | number of Cited : 0
    In this thesis, among the alternative proposals of the Planning and Finance Committee for the amendment of the Tax Affairs Act proposed on November 29, 2019, and the representative proposal for the amendment of the Tax Affairs Act on July 22, 2020, the tax representative of a lawyer qualified as a tax accountant. Constitutional problems such as reduction of work area, tax accountant registration system, and provision of practical training conditions were examined. Conclusions are as follows. the reduction of the tax agency work area of ​​lawyers who are qualified as tax accountants is unconstitutional. The alternatives above are the verification of fidelity reporting under the 'Income Tax Act' or 'Corporate Tax Act' and 'Agency of making a book for tax reporting (No. 3)' among the duties of a lawyer qualified as a tax accountant. No. 8)' It is restricted from doing business. However, this reduction of the scope of work violates the principle of prohibition of excess and essential content infringement, which is the constitutional limitation [Article 37 (2)] of the constitution to restrict basic rights required by the constitution for the freedom of choice of profession (Article 15 of the Constitution) for a lawyer qualified as a tax accountant. It is judged to be an unconstitutional law that is excessively restricted beyond necessity. In particular, although formally limited to two of the eight areas of tax accountant's work, bookkeeping (so-called 'booking work') is the starting point of tax accountant's work and a link between subsequent work such as tax adjustment invoice preparation, so it is at the center of tax accountant's work. The legislator's decision to exclude these duties is not only a legitimate means to achieve the legislative purpose of protecting the rights and interests of taxpayers by preventing poor tax agency work, but also that it violates the basic rights of the subject of related basic rights, the principle of minimization of infringement. Furthermore, it infringed on the essential content of the freedom of choice of profession, to the extent that the tax accountant's job was punished and the attorney with the qualification of a tax accountant lost the purpose of guaranteeing the freedom of work as a tax accountant. In addition, in terms of discrimination according to the time of acquisition of the attorney's qualification, it was confirmed that it was unconstitutional discrimination that could not recognize a strict proportional relationship from the viewpoint of discrimination from other qualified companies (tax accountant exam passers, public accountants). Lastly, the freedom of choice of tax accountants, which is a form of self-determination, in the economic life of the people who are taxpayers, is also subject to great restrictions, resulting in an unconstitutional legislative bill that goes beyond the limitations of the basic rights of the Constitution. In conclusion, since the alternatives to the Planning and Finance Committee and Representative Proposition Yang Kyung-sook do not fully reflect the purpose of the Constitutional Court's determination of constitutional inconsistency with respect to Article 6 of the Tax Affairs Act, etc., it contains unconstitutional content, taking into account the points mentioned above and removing the unconstitutionality.