2013, Vol., No.61

A Study on the Causes and Counterplans of School Violence - Focused on the Legislative Measures -

Jong Geun Lee | 2013, (61) | pp.1~28 | number of Cited : 14

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법학연구소 | 2013, (61) | pp.1~6 | number of Cited : 0

Policy Directions for Social Integration of North Korean Defectors

Chung Young Sang | 2013, (61) | pp.29~52 | number of Cited : 18

Social integration of South an North Korea is a precondition For a successful reunification of the two nations. South Korea needs to provide conditions for social integration by unifying possible social areas not only in legal systems but also conventions of each social area of both countries. For South Korea to take an initiative on them after the upcoming reunification, South Korean should be able to embrace those residents who escaped from the North and settled down in South Korea. Another precondition for a successful reunification is South-South integration, which includes social integration policies. Offering education, jobs, and social security for North Korean defectors in the South is a good example for the external integration while enhancing mutual understandings on different cultures from each other and facilitating their social interaction and enculturation should be provided on the level of internal integration. The legal policies for both external and internal integrations should be implemented in line with each other for successful and smooth transition. Priorities for a stable resettlement of North Korean defectors in South Korea are employment and education. Policy directions should be established from the perspectives of humanitarianism and preparation for unification. In order to secure efficiency in support, the resettlement support system should be built and operated linking the central government, local governments and non-governmental organizations, and systemic adjustment training appropriate to defectors' abilities and aptitudes should be provided; the number of specialized schools and alternative schools should be increased to equalize educational opportunities for teenagers who defected from the North; additionally, social safety networks, customized support programs and welfare facilities should be sharply expanded. The successful adjustment and adaptation of North Korean defectors to South Korean society will contribute to integration within South Korea as well as the overall integration of South and North Korea; this will also advance inter-Korean unification. Legislation and policy support will be needed in such a direction.

Legal status of local government’s art troupe members

노병호 , 안성부 | 2013, (61) | pp.53~88 | number of Cited : 4

In October 2010, the National Labor Relations Commission(NLRC) decided the case of Daegu metropolitan art troupe members to be a unfair dismissal, the case was that some staffs of Daegu metropolitan art troupe had been fired. Since the decision was made, reactions were highly anticipated from people who agreed with and disagreed with NLRC's decision, saying that the decision was made to protect the‘workers right’and on the other hand, they were saying that they had insufficient understanding of the reality that public art troupe was facing to. The unfair dismissal decision of NLRC at the time was the first case that “fixed-term and part-time workers Protection Act”(the fixed-term workers Protection Act) was applied to the artists working for the local government as a member of art troupe since the fixed-term workers Protection Act was enforced in July 2007. After that time, it has been expected that the regulations of local governments would be revised in accordance with the provisions in the fixed-term workers Protection Act and the legal status of the art section members become disambiguated. However, most of the local governments were reluctant to amend the provisions of the Ordinance because they regarded the art section members as a kind of contingent public employees, therefore, they thought their regulations should be applied in preference to the fixed-term workers Protection Act. For this reason, most of art section workers of the local governments still do not receive the protection of the law and are subject to the regulations that are in violation of the law. With awareness of these problems, in this study,First, I analyzed each on several key issues of the filing case for unfair dismissal remedy of the art troupe of Daegu metropolitan city focusing on the claims between the parties and the decision points of the labor relations committee. Second, I looked through what is the legal status of the members of local governments’art sections established and operated by the ordinances of local governments, that is, Whether they are a kind of contingent public employees, the fixed-term workers, the workers without fixed-term employment contract, or the exception of the application of fixed-term workers Protection Act. Finally, Through a comparative analysis on ordinances, rules, and regulations which are related to the art sections of 10 local governments including Busan metropolitan city, I drew some points in question from the regulations and accordingly presented some suggestions for revisal legislation of the regulations.

Restriction on the Investigative agency's providing with Criminal Intelligence to the Media

김태홍 | 2013, (61) | pp.89~122 | number of Cited : 11

Crime reports have public interests, but have the danger which can infringe on the suspect's Human Rights and Due Process. Therefore, ‘Freedom of Press’ must be harmonized with ‘Due Process’. But prejudging crime reports that involved suspect's confession, criminal record, and polygraph test's results, etc, should be forbidden for the ‘Presumption of Innocence’ and ‘Fair Trial’ in the Constitution. Today, Mass Media's crime reports that depend on the investigative agency's-police, prosecutor- providing with criminal intelligence have specially strong prejudgment nature. Thus, investigative agency's providing with criminal intelligence should try to direct limit in each country. In this paper, I reviewed the following contents. 1. media's crime reports depending on the investigative agency's providing with criminal intelligence have prejudging features. 2. prejudging media's crime reports bring about the disclaimer of ‘Due Process’s-‘Presumption of Innocence’ and ‘Fair Trial’-structure. 3. restrictions on the investigative agency's providing with criminal intelligence to the mass media in each country. 4. measures of the restrictions on the investigative agency's providing with criminal intelligence to the mass media in Korea. ‘Objective media's crime reports’ are guaranteed because of ‘the Freedom of Press’ in Korean Constitution. But prejudging crime reports that involved suspect's confession, criminal record, and polygraph test's results, etc, decisively violate the ‘Due Process’-‘Presumption of Innocence’ and ‘Fair Trial’-, even though main agents of infringing activity are private persons. This crime informations must be tentative, provisional and uncertain, but must decisively cause beforehand social prejudices. And even though main agents of infringing activity are private persons or state, ‘Due Process’ on the Constitution and Criminal Procedure Law should be guaranteed “as result situation”. As a results, as measures of the restrictions on the investigative agency's providing with criminal intelligence to the mass media, the existing systems of Korea Crime Procedure should be used more actively. And for restriction on the Investigative agency's providing with Criminal Intelligence to the Media, under the certain conditions-‘publicity and prohibition of guilt's prejudgment’-, Criminal Law 126 article should be strictly enforced. Finally, if the prejudging crime reports that depended on the investigative agency's providing with criminal intelligence procedures have been infringed ‘Due Process’, specially ‘Fair Trial’, criminal trial should be discontinued in accordance with Criminal Procedure Law 327 Article.

Review of Integrity of Property for Ancestral Rite and Dead Body Reversion

SONG YOUNGMIN | 2013, (61) | pp.123~149 | number of Cited : 5

A Critical Approach to an Effective Design of Bailiff System through Modification of Fee Structure

Jongho Kim | 2013, (61) | pp.151~194 | number of Cited : 2

The public servant's salary is a monetary compensation from government by the worth of his or her work and service providing. The salary is usual definition with the wage in the private sector; it is a commonly called terminology used in the public sector and consists of salary and benefits. Current bailiff’s high level income as special public officials is not a salary but a fee income they obtained from the petitioner’s payment. Meanwhile, salary system lies in what amount of total salary is distributed within the frame to the individual and it treats total level of employee’s salary and in what standard applied to create concrete content of salary. The most important topic, regardless of public or private sector, in the salary management is fairness. That is, officials must be compensated by the degree of contribution to the work, project, or organization. Maintaining fairness in the income management of officials have lie in upgrade credibility against salary level, standard of payment, and procedural and bring motivation to the insiders as well as have immersed in official’s work in addition to make strong inducement for the outsider. At this situation, there is no fairness in the Korean bailiff salary system, and these systems have been continued for several decades but no willingness to improvement did shown so far. Moreover, uncomfortable truth is to making secret the bailiff’s salary by not open to the public or mass media of the size or amount. Considering they are special position of public officials, such fact is cannot help evaluating as sort of rash behavior. At this time, the argument of salary scheme modification of bailiff in this article must be linked with bailiff system revolution by the turning point. In general, a category of component in the salary system expanded in that defining the average and normal wage to prepare standard of basic pay, legal benefits, retire payment, and extra salary. However, the bailiff salary system has no idea of even basic definition and it allowed windfall income without any limitation in a quite primitive fashion. They passively taking fees that submitted by the applicant who wanted to collect claim through auction. The existing salary system is not fit with representative type i.e., seniority-based pay, functional pay, performance-related pay, payment attached to the post. The functional payment system out of salary type decided salary based upon the level of job value or difficulty of the work performance, and it can be discriminate the total amount or benefits by the degree of highness or job skill according to the acceptance of organizational member. However, the bailiff’s income is not a functional payment upon the job difficulty. Besides, lots of critics gushily dissatisfaction on the unreasonably high income and fundamental modification of the system is inevitable. To stabilizing bailiff system as more democratized device, several requirements such as (i) the system should be merged into judicial government branch, (ii) electronic bidding system should be adopted as soon as possible, (iii) bailiff must be appointed within the incumbent officials, (iv) auction fees are transferred into government account, (v) bailiff who are responsible for the execution shall be received special salary as an extra benefit, must be fulfilled.

A Review on the Consignee's Obligation to Accept Delivery of the Goods with the Carriage of Goods by Sea

JUNG WON LEE | 2013, (61) | pp.195~221 | number of Cited : 5

Even though article 802 of the Korean Commercial Code(hereunder KCC) envisages the consignee is obliged to accept delivery of the goods upon receiving arrival notices from the carrier, it is arguable for the consignee who was bilaterally appointed by the shipper to be obliged to accept delivery of the goods. For the interpretation of KCC, any person who has claimed for the delivery of the goods to the carrier shall be charged to accept delivery. However in certain circumstances we can concede that the consignee may have obligation to receive the goods according to article 802 of KCC, it should be regarded that the provisions of KCC which deal with the consignee's duty of acceptance of the goods do not have legal effects due to not only lack of enactment of the lower statute, also invalidness of the provisions. In this regard, the Rotterdam Rules which have detailed provisions on the matters of delivery of the goods may have good reasons to study from the legislative standpoint. As article 43 of the Rotterdam Rules declares the consignee's duty to accept delivery, article 48 further states definition of the goods remaining undelivered and carrier's right to take actions for the execution of the goods remaining undelivered. Even though provisions of the Rotterdam Rules regarding the goods remaining undelivered has been made through world-wide studies and researches of local laws and customs of the shipping business, remedies for the goods remaining undelivered seems to be unsufficient for the protection of carrier's interests while the consignee rejects receiving goods or dose not accept delivery of the goods. Since remedies for the undelivered goods can vary to the local laws and customs where the goods are located, only actions stipulated in article 48 do not seem to ultimately solve any legal matters on the undelivered goods. For the balance of the local interests between the carrier and the consignee, however, it is urgently needed to review the local legal system including article 802 of KCC.

A study on the issues and improvements to the direct transportation duty rate of truck transportation business operator

choi jin yi , Kim Sang-Goo | 2013, (61) | pp.223~247 | number of Cited : 1

A Comparative Consideration on Share Markets Exclusively Used by Small & Medium Business - Centering on the Comparison between ChiNext Market in China and KONEX Market in Korea -

Yang Byoung Chan | 2013, (61) | pp.249~277 | number of Cited : 5

The Necessity of Adoption of the Business Judgment Rule (BJR) in the Korean Commercial Code Reflecting the Recent Trends of the BJR in Korean Court Cases

문화경 | 2013, (61) | pp.279~312 | number of Cited : 10

The business judgment rule (BJR) is a legal doctrine that protects directors, officers, managers, and other agents of a corporation from civil liability to the corporation for loss incurred in their business decisions within their powers and authority when there is sufficient evidence to show that the decisions were reasonably well informed, made in good faith, and without conflicts of interests, fraud, or illegality. This rule is a judicially created doctrine and has been developed through the U.S. case laws. Although it has been 10 years since some scholars insisted the necessity of adoption of the BJR in the Korean Commercial Code, even the most recent Korean Commercial Code does not yet accept those opinions. Apart from this situation, the Daegu District Court decision, 99GAHAP13533, ruled on May 30th, 2000, began to apply the BJR to the corporate case. And after that decision, many Korean courts including the Korean Supreme Court actively have applied that rule with the similar requirements of the U.S. BJR. This situation raises a question that now Korea finally adopts the BJR even when there's still no such rule in the Korean Commercial Code. In addition, views are increasingly emerging that the Korean Commercial Code needs to be revised to have the BJR in it. In these circumstances, this research studies leading cases of Korean courts on corporate cases in which the BJR was applied and discusses the necessity or possibility of the adoption of the BJR in the Korean Commercial Code. When analysing those cases, it is found that the Korean courts has set preconditions for the BJR application. These are (i) the business decision must be made on a reasonably sufficient amount of information with a duty of reasonable diligence; (ii) the decision must be made with the good-faith belief that the action taken was in the best interest of the corporation; (iii) the decision must be at least rational, or capable of some sort of coherent explanation with the care of an ordinary prudent person in a like position; (iv) the decision must not be made fraudulently or illegally. Therefore, the BJR applied in Korean court cases looks similar to that in the U.S. court cases. Considering the equilibrium between statute law and case law and the recent global trends in corporate law, Korea needs to think about an explicit provision for the BJR included in the Korean Commercial Code. This provision for the BJR is expected to firmly establish the legal basis of Korean BJR application in corporate governance cases.

Duty of loyalty of directors of companies that have received bailout through the Troubled Asset Relief Program(TARP)

고인배 | 2013, (61) | pp.313~335 | number of Cited : 1

A Study on the Limitation of Liability related to the Class Action Lawsuit of Investors

조상규 | 2013, (61) | pp.337~374 | number of Cited : 5

In a class action lawsuit, calculation of damage is not a simple question because of a large number of plaintiffs and a small amount of their claims. In order to make a compensation to be substantial, all the process of lawsuit from collecting evidences to limitation of liability for damages should be under a prudent policy. The outcome of litigation largely depends upon a presentation of supporting evidence. In case of demage claim suit by investors, investors take a burden of onus probandi. Because of an information asymmetry between defendants and plaintiffs, investors are faced with difficulties collecting supporting materials, basis of calculating damages. As most of the evidence is under a control of perpetrators, in case that they resist to obey a court order to submit documentations, compellable legal sanctions are requested. Plus, as investigation by financial supervisory is taken place prior to the investor-class action lawsuits, ‘Request for forwarding authenticated records’ is to be an effective way of collecting evidences. Therefore, in order to mitigate the investors’ burden of proof by activating these two types of requests, legislation imposing obligation to submit documents is urgently needed. As to estimate liability ratio in Korea, where the proportionate liability has not been introduced yet, the mistake set-off method which considers plaintiff’s mistake based on principle of equity is used to judge the defendant party’s liability appropriately under the untruthful joint responsibility. However, following the precedent, a defendant party’s liability tends to be set off excessively, comparing with a plaintiff's slight negligence. Furthermore, liability setting-off ratio is easily changed at a judiciary discretion in an appellate trial, without any specific legal ground. The judicial system should be reorganized by providing concrete criteria on the mistake set-off method, at a level of weighing an offense at a criminal case. Under ‘Civil Act’, joint tort liabilities are considered as untruthful joint responsibilities. And investors’ negligence should be counted against the several perpetrators together, not by the single separated basis but by the total basis. Only when responsibility ratio between perpetrators is substantially different, the mistake set-off method by the single separated basis should be restrictively allowed.

A Study on the Classification of Investors

Choi, Young Joo | 2013, (61) | pp.375~407 | number of Cited : 2

Evolution of Individual Rights and Change of Classical Perspective on Diplomatic Protection in International Law

LEE JIN-KYU | 2013, (61) | pp.409~434 | number of Cited : 4

An higher level of individual rights through access to relevant bodies was achieved by an increase in the number of international human rights supervisory bodies and international commercial arbitral bodies after World War II. While individual communication has become a common feature in various fields of contemporary international law, it has not been implemented everywhere individuals have rights. But, still, today, there are many instruments, in particular in the field of human rights, which grant individual rights and, more and more often, also the right to enforce these rights. This entry will cover the enforcement of individual rights in international human rights law, international humanitarian law, and international economic law. In the early years of international law the individual had no place, no rights in the international legal order. Consequently if a national injured abroad was to be protected this could be done only by means of a fiction - that an injury to the national was an injury to the State itself. This fiction was, however, no more than a means to an end, the end being the protection of the rights of an injured national. Today the situation has changed dramatically. The individual is the subject of many primary rules of international law, both under custom and treaty, which protect him abroad, against foreign Governments. The individual has rights under international law but remedies are few. Diplomatic protection conducted by a State at inter-state level remains an important remedy for the protection of persons whose human rights have been violated abroad. Considering related situations, the main concern of diplomatic protection is gradually being moved from state's rights to individual rights. The basis of an action in diplomatic protection is the injury to a foreign national. In other words, the main objective of diplomatic protection is after all to remedy to an injury or damage produced to an individual rights' protection mechanism.

A Study on the Interpretation of Clause 1 Article 19 of the Monopoly Regulation Act and the Regulation of Horizontal-Vertical Cartel

Hong Myung Su | 2013, (61) | pp.435~456 | number of Cited : 6

Study on case of BMC Resource, Inc. v. Paymentech, L.P.

Lee woosug | 2013, (61) | pp.457~481 | number of Cited : 0

The Current Status and Future Challenges of the Legal Clinic

Oh, Ji-yong | 2013, (61) | pp.483~503 | number of Cited : 7

When the law school system was first introduced, little attention had been given to the role of legal clinics. However, by the time the law schools were launched taking their role as a legal education institution, the need for legal clinics that could provide clinical education to students has drawn a great deal of attention, resulting in the institutionalization of the legal clinics. Although being established as a clinical legal education institution, legal clinics are currently unable to provide litigation services on their own, because under present circumstances clinical professors of a law school are not permitted to practice law, nor can the legal clinics hire outside attorneys due to lack of funding. Consequently, legal clinics cannot properly function as a clinical legal education institution. Given the situation, we have to find institutional measures in order that the legal clinics may play their proper role as a clinical education institution. If we permit legal clinics to register as a public corporation dedicated to public service, and strictly limit their activities to a non-profit sector making them not to take economic compensations other than the restitution of actual expenses, and allow them, as legal aid corporations, to provide legal services to those who are economically underprivileged or legally under-represented, then the legal clinics could properly function as both a public legal service provider and a clinical education institution. And, if such a system is established as to allow clinical professors to practice law in court while barring them from profit-seeking activities, resistance from lawyer groups would be minimized, ultimately enabling clinical professsors' participation in litigation services to their clients. That is, if we build a system that allows clinical professors to practice law in non-profit areas, and transform legal clinics into legal aid corporations in the form of a public corporation, legal clinics would be able to reestablish themselves as a proper clinical legal education institution for law students.

The ways of viewing publicity rights in Japan

구마가이에미 | 2013, (61) | pp.505~539 | number of Cited : 2

동아법학 61호 총목차

법학연구소 | 2013, (61) | pp.541~602 | number of Cited : 0

동아법학 61호 부록

법학연구소 | 2013, (61) | pp.603~637 | number of Cited : 0

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DONG-A LAW REVIEW 2023 KCI Impact Factor : 0.65

2013, Vol., No.61