2014, Vol., No.62

Die grundrechtliche Schutzpflicht auf das Leben und das Untermaßverbot

Lee, Boo Ha | 2014, (62) | pp.1~21 | number of Cited : 31

법학연구소 | 2014, (62) | pp.1~6 | number of Cited : 0

A Study on the Problem of Political Power Structure under the Current Constitution

Shim, Kyung-Soo | 2014, (62) | pp.23~54 | number of Cited : 5

A voice of concern and self-examination has been raised over the existing Constitution of 1987, the focal points of which consist of the revival of the direct election system for presidency, the single term system for presidency for five years, the abolition of presidential power to dissolve the General Assembly, the revival of the investigative power of the General Assembly, and the revival of local self-governments. For example, there have been very active political discussions to overcome the abusiveness of imperial presidentship and to put the current out-of-control governing system back in order. The growing interest in constitutional amendment among the members of the National Assembly from both the ruling and opposition parties has a lot to do with the current political atmosphere. Unfortunately, a change in political regime has not led to the reduction of the acute political power struggles between ruling and opposition parties. A serious concern over the methods as to how to overcome this kind of political problem has resulted in the recent discussion for reformation and revision of power structure through constitutional amendments. A group of moderate congressmen who are tired of zero-sum confrontational political situation controlled by a group of extreme hardline congressmen from the ruling and opposition parties have raised their voices for constitutional amendment which reflects the current needs for political reformation discussed above. It seems that the overall framework for constitutional amendment has been set up to some extent. For instance, a problem of imperial presidentship in which a president has to control and manage all of the governing aspects will be attempted to be solved structurally by taking an approach to reach the truth through fact-finding rather than following political ideologies. The most common fundamental problem in the presidentship in the U.S. is how to maintain the ‘check and balance’ of powers between the president and Congress. In other words, this is a matter of how not to become imperial or dictatorial for the U.S. presidents while maintaining powerful control over the government. Accordingly, one of the important points for discussion on the constitutional amendment in Korea is to pursue the improvement of political cultures at the same time. In order for the government to function rightfully, it is so much important to pursue the improvement of political cultures which make up the infrastructure of government. Especially, the chronic vice of the political cultures in Korea is based on the following traditions: authoritarian conducts based on Confucian tradition; the unstability of politics of political parties; negative views on compromise due to the black-and-white reasoning; the extreme confrontation based on regionalism; and unreasonable and stubborn demands based on illegal cause. In order to make constitutionalism function adequately, overcoming these kinds of problems is a fundamental challenge. Especially, the improvement on political party system and electoral system must be revised to do so. The precedent examples of the U.S. which is the only successful model seems to provide Korea with a lot of points to learn. With the prospects of achieving the unification of Korea and the national per capita income of $40,000, multi-layered and complex approaches are necessary.

Study on Secularism as Constitutional Principle in the ECHR’s Case of Leyla Şahin v. Turkey

Park ZinWan | 2014, (62) | pp.55~87 | number of Cited : 0

Is it conform with the freedom of religion under Art. 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) that national university in Turkey prohibit student from wearing the Islamic headscarf through internal university rules. ECHR had made a judgment on this matter in the case of Leyla Şahin v. Turkey. ECHR had already taken a decision on the question of teacher’s wearing the Islamic headscarf in the case of Dahlab v. Switzerland. the about the question of teacher’s wearing the Islamic headscarf. The case of Leyla Şahin v. Turkey started in an application (no. 44774/98) lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) against the Republic of Turkey by a Turkish national, Ms Leyla Şahin (“the applicant”), on 21 July 1998. The applicant alleged that her rights and freedoms under Articles 8, 9, 10 and 14 of the Convention and Article 2 of Protocol No. 1 had been violated by regulations on wearing the Islamic headscarf in institutions of higher education. she as a medical student protested a Turkish law to order student not to wear the Islamic headscarf at universities and other educational and state institutions. The application was delivered to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). The Chamber found that the Istanbul University regulations limiting the right to wear the Islamic headscarf and the measures taken thereunder had interfered with the applicant’s right to manifest her religion. It went on to find that the interference was prescribed by law and pursued one of the legitimate aims set out in the second paragraph of Article 9 of the Convention. It was justified in principle and proportionate to the aims pursued and could therefore be regarded as having been “necessary in a democratic society”. In her request for a referral to the Grand Chamber dated 27 September 2004 and in her oral submissions at the hearing, the applicant challenged the reason on which the Chamber had concluded that there had been no violation of Article 9 of the Convention. In the judgment of the Grand Chamber the Court finds that the interference in issue was justified in principle and proportionate to the aim pursued and consequently, there has been no breach of Article 9 of the Convention, the first sentence of Article 2 of Protocol No. 1. and Articles 8, 10 or 14 of the Convention. The Court’ judgement was supported by 16 votes to 1.

Amendment of Prerequisite for Standing to Sue of a third party in Japanese Administrative Litigation Act and the Trend of Trial - Focusing on the comparison with precedents of Korea -

Cholho Choi | 2014, (62) | pp.89~124 | number of Cited : 2

보충성의 원칙에서 본 지방자치단체의 사무에 대한국회 관여의 범위

CHOI WOOYONG | 2014, (62) | pp.125~154 | number of Cited : 16

Legal Review of Taxation Support for the Small Income Earners

KIM, NAM WOOK | 2014, (62) | pp.155~184 | number of Cited : 2

An Evaluation of Amended Criminal Act on Sexual Assualt Crimes - Centered on Rape and Sexual intercourse -

Sun Jong Soo | 2014, (62) | pp.185~210 | number of Cited : 10

The amendments to the Criminal Act in 2012 have brought many changes in the sexual violence crimes. The definition of the subject of the crimes has changed from ‘woman’ to ‘person’, and Antragsdelikt, a category of offence where prosecution cannot be allowed without a complaint by the victim, has been abolished. Also, a new category of ‘like-rape’ has been established, and the provisions of the crime of obtaining sex under the false promises of marriage, which was found to be unconstitutional by the Constitutional Court in 2009, have been deleted. It was expected that the amendment of the subject of a rape in the Criminal Act would solve the possibilities of rapes in marriage as well as between the same sexes. However, despite of the change, the fact that a rape is considered to be an act of adultery in practice is becoming an obstacle to resolving the issue. In other words, because adultery is defined as a sexual intercourse between a man and a woman who are not marri! ed, the problem is that the rapes in the marriage and between the same sexes are not covered. It is related to how rape is defined. That is, the problem could be avoided if ‘rape,’ which is one of the requirements to establish a rape offence according to the Criminal Act, is redefined as an ‘act of sexual intercourse.’ Also, the amended Criminal Act on the sexual crimes could be positively evaluated in that heavier sentences would be meted out for a like-rape since it is a more serious criminal act than an indecent assault due to the fact that an act of forceful penetration is involved. However, what constitutes a like-rape is not clear-cut, and an amendment might be needed to resolve the issue. Also, it is true that the abolishment of the Antragsdelikt is a positive development, but there needs to be solutions for possible problems that could arise as a result, such as preventing the second and the third damaging effects on the victim that could occur during the trial proceedings. Finally, the Criminal Act is now structurally identical to the Special Act on Criminal Affairs Concerning Sexual Crimes as a result of these amendments; the problem is that the provisions for requirements for crimes are similar. This kind of problem could be fixed by streamlining the Special Act on Criminal Affairs.

Several Studies on Article 313, Paragraph (1) of the Criminal Procedure Act

Lee, Chang-Sup | 2014, (62) | pp.211~240 | number of Cited : 14

Whether embezzlement established when return denial of borrowers who received a deposit of deposit payment made by mistake of the third debtor occurred

Seungjun Lee | 2014, (62) | pp.241~265 | number of Cited : 1

Eine Studie über die Entstehungzeitpunkt des Wohnungseigentums

JANG BYEONGIL | 2014, (62) | pp.267~292 | number of Cited : 6

A Study on the Changes of Family relations and the Responsibility of Fostering children as well as the Parental authority

LEE JONG-KHIL | 2014, (62) | pp.293~329 | number of Cited : 2

Eine prüfende Untersuchung der Rechtsprechungen über die Anwendung der Verhandlungsmaxime

황형모 | 2014, (62) | pp.331~365 | number of Cited : 4

Die erste, primäre These der Verhandlungsmaxime als eines Hauptprinzips der Verhandlung im Zivilprozess besagt, dass nur diejenigen Tatsachen berücksichtigt werden dürfen, die von einer der Prozessparteien dargelegt worden sind. Uneinigkeiten in Rechtsprechungen und Lehre bestehen darüber, welche zu den Hauptsachen gehören und welche nicht, die einer solchen Darlegung bedürfen: Somit sind eine zusammenfassende Darstellung und eine vertiefende Untersuchung erforderlich. Sie müßten, im Grunde genommen, zusammen mit der Auseinandersetzung der Beweisbedürftigkeiten der Rechtsvorschriften, die Rechtsfolgen bestimmen, und der Untersuchung der Funktionen der Verhandlungsmaxime vorgenommen werden. Der Verfasser ist der Meinung, dass Rechtsgeschäfte durch Vertretung, grundlegende Tatsachen für Wertungen im allgemeinen Vorschriften, und Beginn einer Verjährungsfrist gehören zu den Hauptsachen, die nur unter Darlegung einer Prozesspartei berücksichtigt werden können. Tatsachen als Basis der Berechnung von entgangenem Gewinn bei persönlichen Schäden, Voraussetzungen des Mitverschuldens, Anwendung einer Rechtsvorschrift, Tatsachen über Verjährungsfristen können dagegen ohne, beziehungsweise gegen, Darlegung der Prozessparteien berücksichtigt werden. Jeweilige Verjähurngsfrist muss dargelegt werden, das Gericht bleibt jedoch an der Darlegung nicht gebunden. Obwohl das Gericht in diesen Fällen auch ohne Darlegung durch eine Prozesspartei Tatsachen anerkennen oder Rechtsvorschriften anwenden kann, je nach den Prozessvorgängen, wenn die andere Prozesspartei die von der Darlegung abweichenden Tatsachenanerkennung oder Rechtsanwendung erkennbar nicht vorhersehen kann, müßte die Partei, vom Gesichtpunkt des Überraschungsverbots und der Garantie der verfahrensrechtlichen Rechte aus, darauf hingewiesen werden und somit in der Lage sein, Meinungen zu äußern oder sich zu verteidigen: In diesen Fällen wäre eine von der Darlegung abweichenden Tatsachenanerkennung oder Rechtsanwendung ohne solche Hinweise unzulässig.

A Comparative Legal Study on the Civil Discovery of Governmental Documents

Ji Won Park | 2014, (62) | pp.367~405 | number of Cited : 4

In 2002, Korean Code of Civil Procedure(hereinafter, “KCCP”) s. 344 was amended (ⅰ) to exclude “the documents possessed by public entity, including Nation, local authority, and even public enterprise(hereinafter, “Government Documents”)” from the general duty of producing evidentiary documents, and (ⅱ) to leave it to complete discretion of public entity on whether to produce “documents containing official secrets(hereinafter, “Government Secret Documents”)”. As a result, the likelihood of documentary discovery from the public entity is almost denied in Korea. This legislative attitude was intended to harmonize KCCP and Korean Freedom of Information Act(hereinafter, “KFOIA”). However it is harshly criticized as a more excessive legislation than is needed to achieve legislative intent. In England, who keeps the documents is not a factor to determine the scope of documentary disclosure. What matters is the balancing of the public interest in the administration of justice and the public interest in maintaining the confidentiality of certain documents which may include governmental secrets. Furthermore, in 2001, Japanese Code of Civil Procedure(hereinafter, “JCCP”), which was very similar to KCCP, was amended to eliminate general exclusion of Government Documents, and add special procedure to hear the discoverability of Government Secret Documents. The legislations of both countries show us how to improve documentary discovery scheme in Korea. What is important is the contents of the documents rather than who is possessing them. Hence I suggest that the exception under KCCP 344 ② should be eliminated to create general duty to produce Government Documents. And I also suggest that the determination of discoverability of certain Government Secret Documents should not be on the discretion of the public entity holding them but on the Judiciary.

The legal effect of Rule 2 (a) of COLREG in Korean Legal System

Cheong Yeong Seok | 2014, (62) | pp.407~431 | number of Cited : 2

Rule 2 (a) of COLREG, 1972 provides that “nothing in these Rules shall exonerate any vessel, or the owner, master or crew thereof, from the consequences of any neglect to comply with these Rules or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case”. The Rules provides conduct of vessels to prevent collisions as an international convention to internationally unify rules on collisions regulations. COLREG, 1972 has the same effect as the domestic laws and therefore the same normative effect as the domestic laws since a ratified international convention has the same effect as the domestic law. However, it comes into question what the legal liability is in Rule 2 (a), and how to hold the offender liable since the Rules do not provide legal liability in detail. The Rules are criteria of negligence of the defender who is legally liable for the consequence of breach of the Rules since the Rules are conduct norm to be observed by ship operators to avoid collisions. But specific legal liability is decided by domestic laws of individual countries as the legal liability shall be provided differently in respect of criminal liability, administrative liability and civil liability. Rule 2 (a) of the Rules provides legal liability declaratorily without classifying the liability into criminal law, administrative law and civil law, so that Anglo-American law countries and civil law countries adopt the Rules comprehensively. Therefore, the subject of liability, the nature of liability and the requirements for liability are to be provided by domestic laws of individual countries. In the meantime, whilst the criminal liability and the civil liability are a matter of fault liability in connection with breach of the Rules by negligence, administrative liability has a nature of fault liability or strict liability depending on individual regulations. Responsibility would not be an issue in the disciplinary punishment on a licensed captain, marine officer or pilot since Responsibility is the premise for the issuance of licenses. The licenses would be cancelled on the grounds of disqualification if the license holder’s Responsibility becomes an issue in an incident(Article 6. 1. of Ship Personnel Act and Article 6. 2. of Pilotage Act).

Non-conformity of Goods in CISG

Kim Bong Su | 2014, (62) | pp.433~459 | number of Cited : 6

Third Party Funding in Investor State Arbitration

KIM DAEJUNG | 2014, (62) | pp.461~498 | number of Cited : 1

Third Party Funding(TPF) is one of the new issues in international arbitration including investor state arbitration. Third party funding is financing by a third party of all costs of arbitral proceedings for one of the parties to a dispute, and the financing third party, or funder receives a certain percentage of the proceeds from the result of the final compensation. Final share the funder will receive can be based on a percentage of the final award, which varies between 15 to 50% of the recovery. If the claim fails, the financing third party will usually, receive no compensation. Main legal barriers are prohibition of maintenance champerty born in UK, which are prohibiting funding or providing of financial assistance to a holder of a claim, which allows the claim to be legally pursued when the funder or provider of financial assistance holds no connection or valid interest in the claim itself. In some main countries such as Australia, the UK, Germany and the US there is a trend of liberalization of prohibition of maintenance and champerty. In the landmark case of Forstif decision in Australia, the court granted legitimacy to TPF in Australia. In international investment arbitration, TPF trend does not appear to take main position except a few notable cases regarding cost allocation decision by arbitral tribunal and TPF withdrawal in ICSID cases. However, it seems likely to grow in the investment arbitration because it is attractive field for the funders due to investment arbitration's lucrativeness in its value. In a way, TPF can enhance access of justice to international arbitration including investor state arbitration. In international investment arbitration, the main concerns are the TPF's impact on the attorney-client relationship and the limit TPF imposes on amicable settlements, which in turn could lead to more litigation. For example, funder’s discontinuance of funding led to another litigation in S&T Oil Equipment and Machinery Ltd. v. Romania. Also it is not easy for third party funders to voluntarily disclose their involvement in the arbitral proceedings. In Ioannis Kardassopoulos and Ron Fuchs v. The Republic of Georgia the tribunal stated that there’s no principle why any third party financing agreement should be taken into consideration in determining the amount of recovery. There appear to be no such relevant rules of arbitral institutions requiring a party to disclose that it is funded. Nevertheless, it may be possible that a future arbitral tribunal may decide to extend jurisdiction over the funder under the non-signatory doctrine. It is clear that arbitral tribunals still do not have the jurisdiction or the power to invalidate a funding arrangement, unless the parties raise the funding agreement itself as a merits issue. It seems that major arbitration institutions such as ICSID, the UN Commission on International Trade Law (UNCITRAL) and the International Chamber of Commerce have the power to set up any rules, if possible.

A Consideration on Consumer Protection and Sustainable Development in International Law - With Special Reference to the Protection of Consumer Interests and Sustainable Development in International Trade Law -

SHIM YOUNGGYOO | 2014, (62) | pp.499~531 | number of Cited : 2

justifiable strikes are possible in essential public workplace? - legal issues in the 2009 railroad strike -

shin soo jung | 2014, (62) | pp.533~557 | number of Cited : 3

A Study on Determining Nonobviousness Reflecting on Secondary Considerations : Transocean Offshore Deepwater Drilling vs Maersk Drilling USA

Jun, Yong Cheul | 2014, (62) | pp.559~589 | number of Cited : 3

In order to retain objectivity in determining an inventive step as an essential requirement for patentability, comparisons between the claimed invention and the teaching of the prior art have practically been made based on technical features. However, determining an inventive step by only considering technical features may increase the danger of hindsight since a person having ordinary skill in the art exposed to advanced technology after the filing date of the application may determine an inventive step after he or she grasps and understands the teachings of the prior art. In determining an inventive step, secondary considerations of non-technical features, such as commercial success, industry praise, unexpected results, copying, industry skepticism, licensing, a long-felt but unsolved need, and the like, are usefully taken to understand the genuine scope of the invention by reducing the danger of hindsight. Compared to the United States, it appears that South Korea is significantly more reluctant to reflect secondary considerations in determining an inventive step of an invention. In order to expand the object and scope of protecting industrially meaningful inventions with patents, while preventing hindsight in determining an inventive step, it is necessary to organize and specify standards for reflecting secondary considerations in determining an inventive step as well as items requiring proof from the patentee through future judgments or rulings. This thesis explores the ruling from the United States Court of Appeals for the Federal Circuit on Transocean Offshore Deepwater Drilling, Inc. v. Maersk Contractors USA, Inc., a case in which an original ruling was overturned after non-obviousness of a patented invention was recognized due to secondary considerations, and analyzes the process of determining an inventive step reflecting secondary considerations. The ruling from the United States Court of Appeals for the Federal Circuit on Transocean Offshore Deepwater Drilling, Inc. v. Maersk Contractors USA, Inc. may be used as a reference to prepare standards for reflecting secondary considerations in determining an inventive step.

Problems and Legal Solutions related to the Fair Transaction of Subcontracting System of High Potential Enterprises in Korea

Jeong-Ku PARK | 2014, (62) | pp.591~626 | number of Cited : 7

This paper is concerned with problems and legal solutions of the subcontracting system in Korea. The business environment related to the subcontracting system in Korea has recently changed by global competition. The subcontracting system between the Large Enterprises and Small and Medium Enterprises(SMEs) including High Potential Enterprises(HPEs) has continued to change from vertical cooperative relationship into horizontal cooperative relationship: strength of competitiveness, open subcontracting transactions, enlargement and specialization of subcontracted company etc. Some survey research about the subcontracting system of the KOSDAQ listed enterprises in Korea shows that the KOSDAQ listed enterprises are composed of different companies: SMEs(75.4%), HPEs(19.5%), Large Enterprises(4.0%) etc, and it also shows that current Korean subcontracting system has many problems. Large Enterprises have abused their dominant positions in transactions with SMEs including HPEs and have practiced unfair transactions like unfair reduction of subcontract payment, revocation of subcontracting after verbally ordering, stealing of technology in transactions with SMEs including HPEs etc. It also shows that the unfairness of subcontracting trasactions is getting worse in 2. and 3. subcontracting transaction. To solve this problem, it is necessary to establish new efficient subcontracting system. Collaborative subcontracting based on ‘Faith’ and fair transactions between Large Enterprises and SMEs including HPEs are necessary to solve problems of the subcontracting system. In order to achieve this, it should be emphasized not only the role of Large Enterprises as prime contractor and the core competency of SMEs including HPEs as subcontractor but also the legal system for fair subcontracting system. The SME policies and the HPE policies of the government will encourage SMEs and HPEs to increase their competitiveness for the growth in the global economy. The government should establish the fair subcontraction system between Large Enterprises and SMEs including HPEs.

DONG-A LAW REVIEW 62 - appendix

법학연구소 | 2014, (62) | pp.627~659 | number of Cited : 0

KJCKorea
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DONG-A LAW REVIEW 2023 KCI Impact Factor : 0.65

2014, Vol., No.62