2007, Vol., No.40

The Trends and Tasks of the Judicial Reforms in Korea

Manhee Jeong | 2007, (40) | pp.1~34 | number of Cited : 1

The recent debates over the reforms of the judicial institutions in Korea have been accelerated since the Kim(Y.S) Administration took its departure in 1993. However, the introduction of the American_style law schools into Korea, one of the major tasks of the judicial reforms had been thwarted due to the hostility of legal circles. The Kim(D.J) Administration continued to unfold the judicial innovation, being at a standstill without reaping any fruits. Subsequently, a tenacious debate on the judicial shakeup has developed during the Roh Mu Hyun Administration, resulting in passing the bill of introducing American-style law school into Korean legal education arena in 2007 for the first time in its history. Over the past ten years, the discussions on the judicial reorganizations have been showing that there are many complicated problems to be solved, one of which is a compelling argument of authorizing the number of law schools and total law students, arbitrating between the legal circles and academic circles including various citizenry. The purpose of this article is to spot contemporary issues and suggest some tasks in the field of executing a policy of judicial renovation in Korea. Then, it discusses the tendency and contours of the judicial reformation in the last decade, focusing on the history of Korean judicial system and the gist of the results of endeavor by the now government including the decision-making process of introducing the law school system as a part of the judicial reforms. After that, I emphasize that the Korean Constitutional Court, as a guarantor of constitutional law, has played an important role in the development of rule of law, in protecting fundamental rights despite of incipient skeptical perspectives. Finally, I suggest that the far-reaching discussion should be set forth beforehand to make the new reform of judicial system take roots in the soil of traditional legal cultures in Korea.

The Main Contents and Points of the Amendment to The Administrative Litigation Law in Japan

CHOI WOOYONG | 2007, (40) | pp.35~57 | number of Cited : 12

Notstandsrecht im Grundgesetz der Bundesrepublik Deutschland

Bang, Seung-Ju | 2007, (40) | pp.59~103 | number of Cited : 6

In vorliegender Arbeit handelt es sich um die Vorstellung über das Notstandsrecht und zwar seine Struktur sowie seine ausführiche Bestimmungen im Grundgesetz der BRD. Im Grundgesetz gibt es das Recht des äußeren Notstands und das Recht des inneren Notstands. Das Recht des äußeren Notstandes, das in Abschnitt Xa des Grundgesetzes sowie in verschiedenen einzelnen Bestimmungen(Art. 12a Abs. 3-6, 53a, 80a, 87a Abs. 2 GG) zusammengefasst ist, spiegelt das Spannungsverhältnis wider, welches aus der äußeren Bedrohungen der Bundesrepublik Deutschland herauswachsen ist. Im äußeren Notstand gibt es 4 Stufe, die vom Spannungsfall über Zustimmungsfall und Bündnisfall zum Verteidigungsfall reichen. Der äußere Notstand, der sich hauptsächlich auf den Verteidigungsfall bezieht, wird in der Regel durch die vom agressiven Akt anderer Staaten ausgehende Gefährdung des Staates und seiner Ordnung verursacht, Demgegenüber ist der innere Notstand durch aus der eigenen staatlich-gesellschaftlichen Lebenssphäre kommende Gefährdungen gekennzeichnet. Man soll die Verfassungsstörungen vom inneren Notstand abgrenzen, weil sie hauptsächlich aus der fehlenden Fähigkeit oder Bereitschaft der Verfassungsorgane zu Kooperation und Funktionsausübung entstehen. Solchen Verfassungsstörungen darf man nicht mit der exeptionellen Mittel, sondern durch die Respektierung der Normalverfassung begegnen. Die Notstandsverfassung der BRD, die absichtlich auf den “Belagerungszustand” verzichtet hat, hat die ausführliche Vorkehrungen gegen den Gefährundungen, das Ausnahmenrecht zu mißbrauchen, vor allem durch die Unterscheidung zwischen das Subjekt der Feststellung des Ausnahmezustands und das Subjekt der Ausübung des Ausnahmerechts. Den ausführlichen Bestimmungen des Ausnahmerechts im GG kann und soll man viele nutzungswerte Lehre bezüglich auf das koreanischen Belagerungszustandrecht entnehmen.

“Inhyukdangsegoenyi Fall” und die Justizmord

HOH ILTAE | 2007, (40) | pp.105~125 | number of Cited : 6

A Study on Earnest Money

Woongkil Han | 2007, (40) | pp.127~148 | number of Cited : 19

A Study on the Construction Theory of a Claim of the Deposit for Payment

Jong Geun Bae | 2007, (40) | pp.149~185 | number of Cited : 2

Deposit is one of the legal relations arising between depositor, depositee, and the state. Generally speaking, debtor becomes depositor, creditor becomes depositee and state becomes trustee of deposited material, and debtor becomes free from binding of debt, and the claim of lender to debtor continues to exist being transformed into a claim of the deposited material for payment. As the content and counterpart of the claim of the creditor are changed, many problems such as who is real depositee, against whom and how a claim should be realized, are arisen. The problem of deciding the content and counterpart for the realization of the claim of deposit for payment is relying on the problem of the nature of the state as a trustee of deposit. The two views between one that the state is a mere agency of the depositor and the other that the state is a independent administrative body produce different answers. If we comprehend the legal relation of the matialization of the claim of the deposit for payment as the legal relation between depositor and depositee and the state merely takes the role of custodial(this is the view of the supreme court precedent), then it is prerequisite for one who claims the right of the deposit to pile a confirmation suit to decide the rightful depositee. And there is also the problem whether there is the need for rightful depositee of the deposit to pile a confirmation suit to solve the dispute with the formal depositee. There are some types of the deposit for payment. The first is the deposit for determined reciver. In this case the deposit official only has the formal authority of investigating the name of the person who claims the deposit, and the dispute over the desposit is confined to dispute over the problem of the disposal of the deposit official. The second is the deposit for undetermined reciver. In this case the matter is who should be the rightful person for the deposit among the documentary named alternate depositees. So in this case, the sort of process to solve the dispute on the matter who is the rightful depositee is related to the nature of the deposit, and upon which the type of ligal suit may be determinded. In this treatise I systematized the construction theories of the materializing method and the redemption process of the claim of the deposit for payment in three patterns. On one hand there is a supreme court decision that admitted a performance suit on the claim of deposit for payment without the process of complaint against the disposal of deposit official, on the other hand there is anther opposite supreme court decision, so we are confused as if the supreme court lacks consistency. And I tried to extract some principles in this treatise on which the precedents are made. Conclusively it is right first of all to start the discussion on the premise that the nature of the legal relation of the deposit for payment is the relation of civil law. And then I conclude that the legal relation of the dispute surrounding the claim of the deposit for payment is basically the civil relation between depositor and depositee. So it is right that one who claims a right on the deposit should ask to deliever the deposit concerned to the deposit official first, and he may go further to the complaint against the official if the official rejects his demand. Furthermore he can pile a performance suit against the depositor when the complaint is dismissed. And if there is a dispute on the rightful depositee because the depositee was changed after the deposit was made or the diposit was made for undetermined reciver, it is needed to solve the problem in the frame of private dispute between the two parties. So if there is an agreement between the two parties it will be respected, but if not, one may go ahead to pile a confirmation suit against the other, and he may ask to deliever the deposit concerned to the deposit official on the ground of the winning judgement, furthermore he can pile a performance suit when the claim is dismissed. Finally when the deposit was made for unidentified reciver, the regal relation is arising between the two parties of depositor and depositee, and it is needed to solve the problem in the frame of private dispute between the two parties. So if there is an agreement between the two parties of depositor and depositee, it will be respected, but if not, he who assert that he is the real deposetee may go ahead to pile a confirmation suit against the depositor, and he may ask to deliever the deposit concerned to the deposit official on the ground of the winning judgement, furthermore he can pile a performance suit when the claim is dismissed. In addition, in the case that all parties are participated in one jegal process surrounding the dispute of who is the rightful depositee concerned and it is possible to determine in the very one process, the court can decide to order the state to deliever the deposited meterial to the rightful depositee without the process of complaint against the deposit official through the process of performance suit according to the view of civil-relation theory From the contradictary appearance of the supreme court decision on the subject whether the court may permit the performance suit arising from the dispute of the claim of deposit for payment, I have reasoned the basic view on the standards of the supreme court decision and I have categorized the permissible standards of the confirmation suit and performance suit.

Prospect Right Infringement and Claim for Damage - Laying stress on 54282 judgments both Supreme Court 2007.6.28 pronouncement 2004 -

Lee, Tae-Choil | 2007, (40) | pp.187~215 | number of Cited : 16

Prospect right is not defining by law in area the administration of justice enemy up to now in spite of actuality that is reflected greatly in increases of a lot of social interest and prices of real estate. Because prospect right can be recognized from dimension of everyday life to private value, will have to be decided because make this and margin of other value and comparison prison term that collide because various specific private plan, that is, view evaluates having value treating about will recognize some legal patronage. But, that view and spectacle do not have special meaning and view grows worse simply this for reason juridical patronage receive may . That particular place has value of special fowling net in the place, and it is thing of degree to have common realization from society general etc. may have to be premised, and decide whether is worth examining and protect legally several essential factors furthermore. Usually, it is 「specification place is had special value for fowling net in the place, and recognizes into profit to be guarded perfume for profit of this view in legal viewpoint in case of is recognized that have one importance that perfume of view profit in the building should be approved as socially accepted idea prize individual profit by occupant instead of owner of relevant building as building is built in the place for purose is important」. Such Prospect right infringement is commutation of relief the administration of justice enemy as infringement of private margin. Administration of justice enemy about infringement of view profit, can hear demand of disturbance exclusion disturbance courtesy call or a compensation for damage relief, and is brought much in form of claim for damages. The Supreme Court have looked tendency that do not recognize by special title seeing prospect right on secondary right of right to sunshine, but change has been seen in the situation recently. Only, that specific place has special value about view and enjoys view profit such as it that is built by importance purpose that can recognize prospect right only circumscriptively in occasion speak. Thus, 2007 in present that the dispute events that is occurred by collision with other right because prospect right and the prospect right that value attaches the property enemy actually are infringed are increasing 2007. 6.23. I wish to study damage reparations problems about prospect right infringement examining proclaimed Supreme Court 2004da54282 judgment.

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2007, Vol., No.40