2010, Vol., No.46

HOH ILTAE | 2010, (46) | pp.1~33 | number of Cited : 3

Ryu, Byŏng-Jin was born in Ham-Ju, Hamkyŏngnam-Do in 1914. He was admitted to the law school of Meiji University in 1938 and graduated in 1943. After passing the bar exam in 1946, being educated at the Judicial Research and Training Institute, he was appointed as a probationary judicial officer in July in that same year. Then, in 1949, he was appointed as judge of the Woong-Jin Branch Court of the Seoul District Court. During the Korean War, after the fall of Seoul, he evacuated to Busan and served as a judge. As soon as the government was restored in Seoul, he returned to the city to resume his duties as a judge. He inevitably had to preside over the trials of people who took sides with the enemy under the North Korean Army during the Korean War(1950～1953). He tried his best to accept reality and focused on judging the cases by the theory of expectation-possibility of a legal act. He wrote about the mental agony he suffered during those times and published a book entitled “Judge’s distressed heart”. Without waivering from the pressure of public opinion inflamed by the Lee, Seung-Man's government and sympathizer, he handled several important cases, including the Cho, Bong-Am Case, according to the dictates of his conscience and in conformity with laws in complete consideration of truth and justice. He was a natural law philosopher believing in law according to justice. He recognized that laws and rules were inevitably influenced by social situation and cultural values of the times. He remained steadfastly grounded on the principle of the rule of law and advocated civil freedom and peace. He was against capital punishment, maintained humanitarian principles applying the Act on the punishment of people that took sides with the enemy. Also, he was a diligent scholar. He was the author of general and individual theories on criminal law, and wrote criminal procedure law. He exempted some people that took sides with the enemy under the North Korean Army from criminal liability by applying the theory of expectation-possibility of a legal act and found them not guilty of any crime. Therefore, for such reasons, I believe he was the foremost scholar and lawyer of his time.

제46호 - 차례

법학연구소 | 2010, (46) | pp.1~6 | number of Cited : 0

The Act for Multifunctional Administrative City(Sejong) and Problem of Public Notice

Myung, Jae Jin | 2010, (46) | pp.35~67 | number of Cited : 0

A Legislative Study for the setting of the Locus Standi to the Trial by Administration

LEE SANG CHEON | 2010, (46) | pp.69~120 | number of Cited : 5

More than 20 years have passed since the legistlation of the law of administrative trial which defines the locus standi as ‘who has interest in law’. Even though there have been little objection to the revision of the above provision, the expression ‘who has interest in law’ exists still as it is. There have been severe cotroversies whether the legistlation of locus standi of the law of administrative trial has error or not, concerned with the legistlation of locus standi. But Almost all the people agree to the enlargement of locus standi of administrative lawsuit. The crucial error of the legistlation of locus standi is that the law of administrative trial has strong self-cotradictory regulations(Article 1 and Article 9) in itself which don't agree with each other. The Article 1 describes the trial subject as both of illigality and injustice, but The Article 9 describes the locus standi as 'who has interest in law'. This means that all the interests in fact are excluded from protection, because the injustice doesn't go with the concept of interest in law and it doesn't consist with the infringement of right. Thus, all the those who have only interest in fact can't take objection to the injustice. It is not the true purpose of the law of administrative trial. We are under the substantive rule of law by our constitutional law. All the legal rights should be able to be protected through the legal process. But only those ‘who has interest in law’ can be protected through the administrative lawsuit. In reality, it is common that the legistlation of law is not carried out to take the all the interests into account. If the legistlation doesn't rule some interest, it can't be protected. The legistlation designate the sorts of interest which can be proteceted or not. There exist some interests which can't be protected. This result isn't consistent with the true meaning of the above substantive rule of law. Unlike the law of administrative lawsuit, the law of administrative trial rules both of illigality and injustice. The injustice is concerned with interest in fact. But the above law describes the locus standi as 'who has interest in law'. Thus all the interests in fact is ruled out of the adaption of the law. The above Article 9 of the law of administrative trial should be revised at once. The locus standi should be expressed like ‘who has interest worth protecting’. The administrative trial should be used by even those who have only interest in fact.

A study on the standing issues in civil and administrative litigation in environmental cases

Ji Won Park | 2010, (46) | pp.121~144 | number of Cited : 12

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One of the legal requirement for a lawsuit that is frequently visited in environmental law is the issue of standing to sue. To bring a environmental litigation, whether it is civil or administrative, a plaintiff is required to have “appropriate individual interest”. To sue an administrative agency, the plaintiff must demonstrate standing by showing that he or she has “legal interest to revocate agency's action”. Korean Supreme Court has repeatedly held that “legal interest means individual, direct, concrete interest protected by legislation on which agency's action is based”. The Court relied on a “zone of interests” test until 2006, which means citizens only living within the zone of environmental impact assessment may have legal interest. However, it changed its views by conferring standing to the out-of-the-zone citizens in 2006. However, the Supreme Court has still maintained its opinion that “legal interest cannot be found for the general, indirect, abstract interest which is commonly enjoyed by general citizens”. Hence non-governmental organization(hereinafter, “NGO”), which doesn't possess any property within the zone in its name, has never been conferred standing. This view of the Court covers most of the environmental dispute, however, there is a loophole. Even though the plaintiff suffers no individual, concrete harm, the society as a whole may still be injured by pollution, the animal extinction, etc. But it is also risky to give general standing to all citizens, because the court has already had enough caseloads they cannot handle. Hence, I suggest to give NGO standing to sue in a limited circumstances where no one can claim injury despite of real harm to the nature. To prevent frivolous lawsuit, appropriate NGO with standing should be qualified by the Governmental Agencies or Courts before it files a complaint.

The Way to Secure Trial Subjects' Rights of the Self Determination on the Clinical Trials of Medical Supplies

송영민 | 2010, (46) | pp.145~173 | number of Cited : 11

Owing to the experimental characteristic of clinical trials, it is not obvious how much the benefit and riskiness would affect to the trial subjects in the process of experiments, thus whether the intentions of trial subjects are reflected is more important issue than medical treatments in clinical services. The adults who have the consent abilities would be able to take part in clinical trials with their own decision as the rights of self determination to their bodies, however those who are not capable of consenting for themselves like the underage or serious dementia patients should not be admitted their eligibility as the trial subjects. Nevertheless it could be permitted exceptionally in case the result of clinical trials could come out only when those people take part in as the trial subjects to achieve the aims of clinical trials, but still in this case it should be allowed if it is only for treatment. In addition, the substituted determinations are made in accordance with custom in medical services in case of not having consent abilities, however the consents of agents should be considered as other's decision not his(her) own decision in the position of trial subjects. Thus, there need to be a couple of assessments in the designation of agents. those are as follows. ① the assessment whether there is the intention to take part in clinical trials of himself(herself) or the contract of guardianship in advance. ② the assessment whether there is the designation of a close relative who knows his(her) value systems although it is unclear to be his(her) own intention. Furthermore, the researchers should inform the trial subjects of the result of judgement that he(she) lacks the ability to consent before explaining the clinical trials to the agents and let the trial subjects know the intents in case the agents agreed with it. The reason additional procedures should be made is that the consent abilities of trial subjects are too obscure. I also suppose that the trial subjects should not refuse the procedures and the rights of refusal should be respected in case of his(her) refusal.

Legislative Study on Earnest Money Clauses of Civil Code

조일윤 | 2010, (46) | pp.175~200 | number of Cited : 10

Generally, one of parties delivers money or other things to the other party, at the time of entering into a contract, under the name of down payment, assurance deposit, etc. in all types of contracts in daily life. It is usually defined as the contract deposit. As a rule, the contract money has legal implications and purposes such as effects of deposit money, penalty, earnest money, etc., however, it has the effect of earnest money unless otherwise specially agreed upon between the parties. According to present civil code, “the deliverer should give up the contract money or the receiver should repay double such money, before one of the parties has initiated performance of the contract,” in order to exercise the right of rescission by the stipulation of the earnest money of Article 565. Here, pursuant to the two parties' theory, the theories and judicial precedents adpoted in Korea, ‘one of the parties’ cannot exercise the right of rescission, if one of the parties initiates the performance of the contract. However, in consideration of such points, (1) the latter part of Article 565 Paragraph of Civil Code is meant to protect the party who has initiated the performance of the contract from the other party, (2) it is difficult to consider only initiation of contract performance as the party's waiver of the right of rescission, (3) it is consistent with the principle of private autonomy, that it is interpreted to mean the party who intends to exercise the right of rescission should be entirely free to decide to give up the protection from the other party and exercise such right, (4) unpredictable damage to the party who hasn't initiated the contract performance can be supplemented by the delivered contract deposit, I think, it is legislatively reasonable that, in the latter part of Article 565 Paragraph 1 of Civil Code, ‘one of the parties’ is interpreted as ‘the other party of a contract’ and revised as ‘the other party of a contract’. Accordingly, it is thought to be reasonable that the contradiction to the principle “the contract should be fulfilled” can be controlled, when interpreting the scope of ‘till the initiation to fulfill the contract’ broader. Moreover, it is reasonable that ‘the waiver of the contract deposit’ is adequate only with the claim of contract cancellation, I think. It is thought to be reasonable to accept the amendment into ‘the autual tender of double repayment’ or the tender of double repayment, pursuant to the judicial precedents that it is not necessary to perform ‘the repayment of double amount’ actually and to deposit the contract money in the bank in case of the other party's refusal to receive such money. Accordingly, it is legislatively reasonable to amend a part in question in the latter part of Article 565 Paragraph 1 of Civil Code into the waiver of the contract deposit or the tender of double repayment (or the actual tender of double repayment) before the other party's initiation to enter into the contract, I think.

Recent Discussions about Assisted Reproductive Technology and the Subject

KIM MIN KYOU | 2010, (46) | pp.201~243 | number of Cited : 4

Redefinition of Legal Relationship between the Management under the Multi-owned Building Act and the Delegation of Residents under the Housing Act

Hoyeol Song | 2010, (46) | pp.245~281 | number of Cited : 25

Divided ownership refers to a form of ownership in which a building initially as one thing is divided into multiple things that are owned by many individuals. For example, one condominium is originally regarded as one thing, but if we divide it into multiple houses and have each house as one thing owned by one individual, we can call it "divided ownership". To govern such ownership, Multi-owned Building Act and Housing Act have been enacted. In case a multi-owned building constitutes a condominium,Multi-owned Building Act and Housing Act simultaneously apply to the managing of the multi-owned building. In relation to the managing of multi-owned building, the Multi-owned Building Act provides that "the special provisions regarding the methods and standards of management of multi-owned houses shall be valid unless they are in conflict with any of the Multi-owned Building Act and encroach any basic rights of divided owners (Additional Clause 6,Multi-owned Building Act), relying on the Housing Act for the managing of multi-owned buildings without considering the differences between multi-owned buildings and general houses. This legislative structure entails many problems regarding the relationship between the management of a multi-owned building and the management entity of a condominium. This is derived from the legislation that the delegation of residents established by the Housing Act is entitled to the managing of multi-owned building, without strengthening the management of multi-owned building. In reality, as the delegation of residents have exclusive status in managing, many problems occur, for example, it abuses its power in the multi-owned building where many divided owners reside. Against this backdrop, this study considers that it is time to make in-depth review on the conflicts and problems between the Multi-owned Building Act and the Housing Act, and between the two groups. This study aims to review such issues, and to provide basics to solve them. First of all, it is not desirable to simultaneously have the management of multi-owned building and the delegation of residents in relation to the managing of condominium, which is multi-owned building. In particular,considering that the management of multi-owned building is somewhat inefficient in terms of management of condominium, it is necessary all the more to provide for the managing of multi-owned building, which is a condominium, differently from other multi-owned buildings. Secondly, it is required to define the status of the management in the multi-owned building and to ensure its activities. Although the management is an automatic organization under the Multi-owned Building Act, it is true that its fudi, it have become nominal. It is real that the delegation of residents under the Housing Act performs most fudi, it for the managing of the multi-owned building. In the future,ensure its ac tivities. wvil bectivit ate mana complex on as arge scale all the more, and more complica, it and higher diversifica, it of auxiliary tivities. wvil require more special knowitsge in management. In od er to deal x on such businesses stably and actively, it is necessary to consider allox all the more, and to become an indepandand codpoda, it aunderre, and associa, it ornderre, and compry tso that it can derre, the multi-owned building independently and actively. Thirdly, it is necessary to improve the functions of the management meeting by granting the general meeting of management the status as a legal organization and strengthen its power. The management is the supreme decision-making organization of divided owners' group. Nonetheless, it is true that resolutions by the management meeting are made perfunctorily through documentary resolution. Accordingly, it is necessary to strengthen the power of the management meeting by requiring the meeting to make a resolution by absolute assembly, which means that its members should actually participate in the meeting to make resolution, improving the functions of the management meeting.

The Legal Prospect of the United States for Consumer Protection

Jungjoon Ka | 2010, (46) | pp.283~305 | number of Cited : 6

This article focuses on how U.S. law protects consumers. Like American scholars, Korean ones believe that a consumer is not a proper party in competition with a manufacturer or a commercial provider in making and negotiating a contract. That is why some judicial remedies and legislative statutes are necessary to improve the bargaining power of consumers or to prevent the unilateral practices of commercial sellers or service providers. Most Korean scholars have studied how to improve the bargaining power of consumers and particularly emphasized the issues of standardized contracts for consumer protection. Their efforts have resulted in the legislative outcome of regulating unfair standardized contracts based on German law. Despite such a special statute, they still believe that it is not enough to protect consumers. Recently, a few Korean scholars have become interested in consumer protection law in the United States for two reasons. First, most people are questioning the role of the Korea Fair Trade Commission for consumer protection. The Korea Fair Trade Commission is similar to the Federal Trade Commission in the United States in that it has enormous power in regulating and supervising the antitrust practices of enterprises. On the other hand, unlike its American counterpart, the Korean one has not played a notable role in balancing the asymmetry of trade and negotiation powers between consumers and enterprises. Second, the demands for consumer protection law in the United States have increased particularly since the terms of “unfair or deceptive trade practices” have been mentioned in the Free Trade Agreement between Korea and United States. These terms seem to be used as ways to protect consumers against enterprises. In fact, this term is used under Section 5 of the Federal Trade Commission Act (FTC Act). According to FTC Act § 5(a), “unfair or deceptive acts or practices in or affecting commerce,” are prohibited by any person engaging in commerce. These broad terms of this provision are particularized by the Magnuson-Moss Warranty-FTC Improvement Act (Magnuson-Moss). This Act allowed the FTC to have jurisdiction to reach deceptive or unfair practices and even to define what they are. This means that the FTC is entitled to prohibit unfair or deceptive practices under the FTC Act and to assess whether an act or practice is unfair or deceptive. For example, the FTC may define an unfair act or practice with the following standard: an act or practice is unfair where it (1) causes or is likely to cause substantial injury to consumers, (2) cannot be reasonably avoided by consumers, and (3) is not outweighed by countervailing benefits to consumers or to competition. An act or practice is deceptive where it is likely to mislead a consumer acting reasonably under the circumstances and is likely to affect a consumer’s conduct or decision regarding a product or service. Congress granted the FTC power to obtain restraining orders and preliminary injunctions against unfair or deceptive acts against consumers or those who threatened to violate any provision administered by the FTC. In addition, the civil penalty for violation of such order is up to $10,000 for each violation under Federal Trade Committee Act (FTCA) § 5(l). In other words, any person who engages in unfair or deceptive conduct or who violates the cease and desist order will be subject to a civil penalty. Korean scholars may be interested in how the FTC and FTCA in the United States can improve consumer rights. Indeed, the FTC and FTCA may improve the market functioning by eliminating fraudulent misrepresentation and unconscionable contracts. They may have played a very active role for consumer protection. In this sense, this article introduces how American consumers are legally and judicially protected.

Legal Issues on Ship Fund and Its Remedies

Jeong Sang - Keun | 2010, (46) | pp.307~328 | number of Cited : 5

Liabilty for Damages of C.P.A. in Captal Markets as External Auditors of Stock Companies

Lee, Seong Woo | 2010, (46) | pp.329~365 | number of Cited : 1

Verhältnis zwischen Unterschlagung und Untreue

Lee, Seok-Bae | 2010, (46) | pp.367~393 | number of Cited : 19

Implementation of the 'Rome Statute of the International Criminal Court': Manifestations and challenges

Seong-Gyu KIM | 2010, (46) | pp.395~422 | number of Cited : 7

La limite et l'application du principe de précaution dans le droit international

KWON HAN-YONG | 2010, (46) | pp.423~449 | number of Cited : 9

Depuis des années, les médias font écho à différents incidents et accidents qui se sont produits dans le domaine de la santé ou dans le domaine environnemental. Cès phénomènes ont, dans une large mesure,désemparé les gouvernements qui ne savaient comment « réagir ». En effet, ébranlés à la fois par les incertitudes des scientifiques et par l'ampleur des retentissements médiatiques, alors même que de façon paradoxal jamais autant de réglementations de sûreté et de contrôle n'avaient été mises en place en Europe et en Société internationale depuis plus de quarante années. Les décideurs politiques ont cherché une parade ou du moins une réponse à ces crises répétitives. Cet article constitue un outil concret d'orientation pour toute mesure éventuelle appliquant le principe de précaution. Le principe de précaution répond sans aucun doute à un « besoin » de la société internationale actuelle. Cependant les anciens concepts de gestion des crises et des risques (bon sens-prudence-prévention-analyse scientifique) ou de droit de la responsabilité s'étant avérés insuffisants, il convenait d'inventer de nouveaux concepts, d'où la théorisation du principe de précaution. Mais conviendra aussi d'éviter les écueils dus à un excès d'application du prinjpe de précaution. Un champ d'application trop large du principe de précaution ne peut que favoriser une certaine dérive dans son application. De ce point de vue, il aurait été sans doute plus raisonnable de limiter le principe de précaution au secteur le plus sensible, à savoir la protection de la santé humaine et non pas de l'étendre à la sphère végétale, animale et même à l'ensemble de l'environnement. De ce fait, la mise en oeuvre du principe de précaution doit respecter les principes généraux applicables pour toute mesure de gestion des risques. On considère également que toute décision doit être précédée par un examen de toutes les données scientifiques disponibles et, si possible, une évaluation du risque aussi objective et complète que possible. Cet article doit servir de point de départ à une étude plus large des conditions dans lesquelles les risques devraient être évalués, appréciés, gérés et communiqués. L'avenir du principe de précaution en dépend.

Gewaltenteilung und Verfassungsgerichtsbarkeit

Dai-Whan Kim | 2010, (46) | pp.451~494 | number of Cited : 5

日本地方自治制度改革의 現状과 課題 ― 道州制論을 중심으로― (번역)

조연팔 | 2010, (46) | pp.495~552 | number of Cited : 2

‘Deep Responsibility’ and Alternative Possibilities in Criminal Law

강우예 | 2010, (46) | pp.553~593 | number of Cited : 0

Hermann Heller, Sozialismus und Nation(1925) (1)

KIM HYO JEON | 2010, (46) | pp.595~641 | number of Cited : 0

동아법학 제규정

법학연구소 | 2010, (46) | pp.643~672 | number of Cited : 0

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2010, Vol., No.46