2015, Vol., No.67

A Study of the Tort Liability in North Korea

SONG YOUNGMIN | 2015, (67) | pp.1~26 | number of Cited : 1

The Labor Regulations and Social Rights of Gaeseong Industrial Complexes - Focusing on Amendatory Labor Regulation of G.I.C. -

Moon Moogi | 2015, (67) | pp.27~62 | number of Cited : 7

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Die einheitliche Auslegung der Verfassung von Art. 107 Abs. 2 KV

Lee, Boo Ha | 2015, (67) | pp.63~86 | number of Cited : 3

A Study on Land Ownership System of Unified Korea

LEE SANG CHEON | 2015, (67) | pp.87~120 | number of Cited : 7

In concern with controversial compensation, there is a view that no compensation is needed for those who left the North Korea, but such a compensation according to the principle of proportionality would be needed for them. By that the Unified Korea could be called ‘nation by rule of law’ There are several patterns in concerned with land ownership system, which are called ‘land public ownership system’, ‘land public lease system’, ‘land-value public ownership system’ etc. In concern with land ownership system as formation of land ownership pattern, the private ownership system of South Korea should be applied to the North Area. The base of the above opinion is as following. Firstly, the Unified Korea should not stand in the middle of both sides in view of land ownership pattern. South Korea have strong stance on its private ownership system. The middle stance would be very dangerous to swing the Unified Korea. It would make he Unified Korea fall tinto confusion. Secondly, the private ownership system should be called as core of capitalism. A lot of theories have been developed around it. To continue the economic development after unification of Korea, the private ownership system should have firm stance on the Unified Korea of future. Thirdly, the South and the North should have same land ownership system in time of the Unified Korea, and never have its own different land ownership system each other. Thus the North should have the private ownership system. If the North and the South have its own land ownership system each other differently, it could lead to the economic confusion and delay the economic prosperity of the Unified Korea. Fourthly, there is a difference between constitutional law of Deutchland and that of S. Korea. It should be reflected to the realistic compensation by the Unified Korea. In concrete, the compensation by the Unified Korea is more needed for the original land owners than in case of Deutchland.

Nuclear Power and Local Autonomy: the legal nature and its legal effects of the local referendum of Samcheck city at Octo. 9, 2014

Park Tae-hyun | 2015, (67) | pp.121~142 | number of Cited : 4

The Samcheck city hold the local referendum on whether to concede or to revocate the request for the nuclear power plant positioning (hereinafter referred to as “the nuclear power request”) at Octo. 9, 2014.(hereinafter referred to as “the 10ㆍ9 local referendum”). The poll shows that the overwhelming number of the residents prefer to pull back on the nuclear power request rather than to maintain. The Samcheck Mayor has requested since the referendum that the Samcheck residents’s collective opinion represented through the 10ㆍ9 local referendum should be taken seriously by the central government, and thereby the administrative action for designating ‘Prearranged Area for Electric Source Development Business (hereinafter referred to as “the PAESDB action”) be repealed ex officio. I examined the three legal questions raised from the 10ㆍ9 local referendum. First, whether under the existing Residents Voting Act(hereinafter referred to as “the Act”) the 10ㆍ9 local referendum, voting matter of which was whether to withdraw the nuclear power request or not, is lawful or not. Second, whether a local referendum de facto, which was held pursuant not to the Act but to the mayor’s discretionary political or policy determination, is to be permitted or not. Lastly, if the nuclear power request could be pull back on, when will be the deadline? And the what are the effects of the withdrawal of the request on the PAESDB action. The conclusions drawn from the examination to the questions above are that ⑴the nuclear power request itself is to fall within the category of autonomous affairs capable of being determined by the local government even though it may be incorporated in the administrative process of nuclear power development project. When if the nuclear power request is autonomous affair, so may be said about the withdrawal thereof simply because they are two sides of the same coin. Therefore, the matter of whether to withdraw the request or not is eligible to the voting matter of local referendum according to the Act. ⑵The 10ㆍ9 local referendum as de facto local referendum would be permitted provided that there is no Acts or provisions that make it unlawful. ⑶In light of balancing interests over the PAESDB action, the nuclear power request could be withdrawn before the PAESDB was established irrevocably by the permitting nuclear power development project plan. By the withdrawal of the nuclear power request made at Sep. 22. 2014 the PAESDB action has became revokable.

Theoretical Background of a recital of regulation, including a protocol of German Criminal Procedure Law and comparison with Korean Criminal Procedure Law

kwon oh geol | 2015, (67) | pp.143~164 | number of Cited : 6

The important issue in the process of the fact-finding is as follows. If direct evidence does not exist to the fact in issue, is it possible to use the indirect evidence ? More concretely, could be allowed it for the judge to use the protocol made by the investigation process at the court. At the study on the above, We can know risk of the fact finding by using the substitute evidence, Therefore German Criminal Procedure Law(StPO) Article 250 provides as follows : In case that some evidence regarding the facts is based upon an individual's perception, Judge must ask directly to the person about the facts. The direct questioning can not be replaced as the statements or written statement that was made during investigator's questioning. German Criminal Procedure Law' Article 250 needs direct evidence for the fact finding. But Article 251 and 255a recognize for the finding real truth as best as possible use of the closest equivalent to the evidence of alternative evidence. Also ‘The direct evidence of the principles’ and ‘Investigated ex officio obligation’ at the German Criminal Procedure Law are not each other opposing concepts, but complementary principles. The two countries-Korea and Germany- about hearsay(alternative) evidence have approved the exceptional admissibility under the certain conditions, and the basis of background of the exception also are same. Detailed Code of Criminal Procedure about hearsay(alternative) evidence, certain exception's conditions at the German Criminal procedure Law's are relatively clear than Korean Criminal Procedure Law. And Korean Criminal Procedure Law use very abstract terms such as ‘True existence of evidence’, ‘Recognition of content’, ‘Particularly reliable source of a situation’ etc. Therefore Korean Criminal Procedure Law has so many problems in the face of theory of interpretation. From the De lege ferenda, even if it is inevitable to use abstract wording, Korean Criminal Procedure Law' Hearsay regulation must be repaired. At this work it is desirable that we refer to the German Criminal Procedure Law.

A review on dispute over essence of responsibility in criminal law

오정한 | 2015, (67) | pp.165~194 | number of Cited : 3

In recent discussion on responsibility theory, moral responsibility theory and preventive responsibility theory based on relative indeterminism seems to be a prevalent view. Moral responsibility theory premises a doer’s free will, but in preventive responsibility theory, Jacobs eliminates free will from element of responsibility, while Roxin says free will in criminal law function not as practical fact but as one of norms, so there is no need to prove and it is enough to be just “fiction form”. As mentioned before, in moral responsibility theory, social responsibility theory, preventive responsibility theory, and alternative theory of responsibility which are represented as the conflict between determinism and indeterminism, the existence of free will has always been the start of discussion and important position to investigate the nature of responsibility. However, it has not been proved whether free will exist practically to human beings. “responsibility” that Roxin frequently referred is a eternal subject of criminal law and an essential question in criminal law. And yet at the same time, the dispute over the existence of free will and related issues about freedom is also a typical symbol of insoluble philosophical principle problem. But, Roxin’s opinion is worth to watch over meaningfully because the issue of free will cannot be determinable empirically. Also, if the purpose of prevention can be existed to raise the fundamental rights, not to infringe them, it seems to have a significant meaning to accepting it in the principle of responsibility. In other words, Roxin’s concept of responsibility which considers preventive purpose as maintaining the concept of responsibility as basis of punishment and restriction of punishment seems to minimize the dispute and protect the doer’s fundamental rights efficiently.

Eine vergleichende Studie über die Urheberrechtssysteme zwischen Süd- und Nordkorea

Choi, Sang Pil | 2015, (67) | pp.195~218 | number of Cited : 3

Stabilization measures on Registration System of Security over Movable Property

WOOJOO BYUN | 2015, (67) | pp.219~246 | number of Cited : 4

Ownership of Underground Pore hole - Focused on CCS Cases in America

Ryu, Kwon-Hong | 2015, (67) | pp.247~274 | number of Cited : 1

Effects of Partial Reimbursement by One Person among Debtors of Semi-joint and Several Debts

Bae, Sung Ho | 2015, (67) | pp.275~300 | number of Cited : 9

This study examines legitimacy and inequity of a dualistic solution from the perspective of the joint debt and outer perish theory adopted in judicial precedents with respect to the scope of residual liabilities of other semi-joint and several debts when debtors of semi-joint and several debts who absorb a large sum of liabilities among other debtors with differing amounts of debts in semi-joint and several debts have made partial reimbursement, and explores the possibility of a unitary solution. When debtors of semi-joint and several debts who absorb a large sum of liabilities among debtors with differing amount of liabilities have made a partial reimbursement, an examination of the scope of residual liabilities of semi-joint and several debts shows that it is thought that it is legitimate to solve the problem in a unitary manner by adopting the outer perish theory in case the debtor of a large amount among semi-joint and several debts reimbursed the debt partially in consideration of the aim of the semi-joint and several debts system intended to secure without fail full reimbursement of debts and attitudes of judicial precedents concerning effects of reimbursement in certain guarantees when the intent of the party concerned and consideration of reimbursed interests of the creditor have been taken into account. That is, a review of the ground of fault ratio theory shows that the theory takes into account beforehand the possibility of the employer being unable to reimburse and reflects this on partial reimbursement. However, the matter of effects of partial reimbursement and distribution of dangers incidental to financial inability are matters on a different level, and it is thought to be sufficient enough to adjust as an ex post facto intended interests in the judicial precedent in case the debtor's financial inability has happened. Accordingly, since the employee or the debtor who does the reimbursing does not ultimately have separate reimbursed interests when the interests of the debtor who does the reimbursing, other debtors and the creditor have been adjusted based on effects of partial reimbursement without premising financial inability, of the interests of the creditor and other debtors whose interests will constitute a problem. That is, if the fault ratio theory has been adopted, since reimbursement has significant effects on other debtors due to relatively partial exemption it is unfavorable for the creditor and when the outer theory has been adopted, extinction in the common portion occurs relatively infrequently, rendering the creditor favorable. This is the point of time for the protection of the creditor in semi-joint and other debts and could be an interpretation that yields benefits for the reimburser as well.

A Study concerning Analysis and Improvement of Conditions about Treatment-related Costs owing to the Injuries in Car Accident

Cho, Gyu Seong | 2015, (67) | pp.301~330 | number of Cited : 4

A Study on the Exercise of Enforcement Jurisdiction by Transboundary Abduction from Perspective of International Law : With Special Reference to ‘Ker-Frisbie’ Doctrine

LEE JIN-KYU | 2015, (67) | pp.331~356 | number of Cited : 1

A Review on the Exercise of the International Public Authority

Kim Sung Won | 2015, (67) | pp.357~388 | number of Cited : 2

To wrestle with difficult problems driven by globalization, there is a growing need for active cooperation of actors in international society. This is the main engine for establishing various types of international cooperative mechanism. As a international cooperative mechanism, international organizations play a pivotal role in international sphere and their importance are highly highlighted. Through decision, recommendation, and dissemination of information, international organization touch upon right and freedom of individuals and the autonomy of States both directly and indirectly. In order to protect right and freedom of individuals and the autonomy of States, normative mechanism evaluating the legality and legitimacy of activities of international organizations is definitely needed. Restricted to traditional approach to sources of international law, non-binding law or non-law could not belong to the realm of legality test even though they make a substantial impact on right and freedom of individuals and the autonomy of States. In order to place non-binding law or non-law into the sphere of normative control for legality and legitimacy, normative mechanism which is operated by standard instruments should be established. Understanding activities of international institutions as the exercise of international public authority and categorizing the exercise of international public authority into specific standards instruments enables to review activities of international institutions touching upon right and freedom of individuals and the autonomy of States. Both categorizing the exercise of international public authority via standard instruments characterized by binding force, implementation mechanism, addresses and establishing legal regime containing applicable rules and principles, normative control of activities of international institutions is feasible. To the point that various grounds which do not belong to traditional sources of international law could be reviewed withine respective legal regime, an approach towards the exercise of international public has strong merits. However, there are some problems concerning the international public authority approach to the extent that how to make the balance between internal perspective on law and relative concept of law. Also, merging concept of standard instruments into legal regime establishing applicable rules to each standard instrument is also problematic. Furthermore, the international public authority intentionally does not pay close attention to role of international institutional law established in the field of international law. Despite these problems, discourses on the exercise of the international public authority make a huge contribution to legal approach addressing global governance as well as the constitutionalization of international law, global administrative law and global legal pluralism. Further study on the exercise of the international public authority should be continued.

A Study on the Employment Discrimination Law and System in USA: Title Ⅶ 0f the Civil Rights Act

Byung-Woon Lee | 2015, (67) | pp.389~433 | number of Cited : 11

The social institution in U.S.A has influenced to Korea, but generally the legal system including the labor law and system has not been introduced as a well-arranged type. The main reasons are that the precedents has been played an important part as an Anglo-American law system focused on Common Law not the Continental Law as like Korea, and the legislative system has been operated differently between the federal courts and state courts. We thinks that. The introduction of U.S Employment Discrimination Law and System well-arranged will be useful to the persons in charge of labor policy, active labor jurist, and research students by these reasons. In addition, the comparative analysis and evaluation of Korean law and American law will have great significance. A field has the largest numbers of lawsuits will be the employment discrimination problems in the labor laws in the United States. The Title VII of the Civil Rights Act of 1964 is the most comprehensive discrimination legislation, and the act established EEOC(Equal Employment Opportunity Commission) and also prohibited the employment discrimination by the race, color, sex, country of origin, or religion. This study will introduce the philosophy and the legal principle of U.S employment discrimination law. This study is based on two critical minds. One is the contents of the employment discrimination law, and how the society of the United States is by the law. The other is the critical mind to ease the earning differentials by the regulation in accordance with the employment discrimination law focusing on the personal factors of the worker as a solution for the labor polarization by the increasing non-regular workers. We will provide the prospects and the implications for the employment discrimination law and system in Korea through the process of establishment of the discrimination law in the United States by the critical mind, and the verification of the legal principles of this law. Today the United States has not resolved the unfair by the employment discrimination law, furthermore, the social injustice has been expanded by new factors. This is that the establishment of employment discrimination law is not the only solution of the discrimination problems. Korea is different essentially from the United States is multinational and immigrant community, and also the employment structure of each country is different. But Korea shall learn the philosophy and the legal principle of the employment discrimination law in the United States. This study considers the establishment and amendment of the Title VII of the Civil Rights Act, procedure of relief and contents, type of anti-discrimination, and the principles for the formation of discrimination on the employment in the Title VII of the Act and the methodology of the discrimination regulation in the preliminary stage with the above purpose or the critical mind. The concept and structure of the employment discrimination law in the United States, the employer's liability and the burden of the proof that are the theoretical discussion structure, the legal principles and proving method of the discriminative treatment and the influence, and the details of the affirmative discrimination corrective actions and the judical review will be future challenges.

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DONG-A LAW REVIEW 2023 KCI Impact Factor : 0.65

2015, Vol., No.67