2015, Vol., No.68

Die Revision des Verwaltungsprozeßrechts zur Konkretisierungen des Rechtsstaatsgebotes

Kim Jung Kwon | 2015, (68) | pp.1~24 | number of Cited : 4

A Remedy for the Problems in the Laws on Public Institutions

Young Woon Kim | 2015, (68) | pp.25~47 | number of Cited : 2

There have been nationwide interests in the management of public institions in Korea because their number and variety are greater than those in other OECD member nations. Such interests have been changed into a key national agenda to innovate public institutions these days as their weak performances, lax management and loose work ethicks were revealed publicly. Specifically, Korean government has focused on both finding out and eliminating their irresponsible practices and forcing them to innovate themselves by using the powerful tools the government hold, for example, the mandatory performance evaluation and incentive system. Though the national drive is a step in the right direction, this study questions if the government may overlook the importance of diagnosing the status quo of overaching laws on public institutions. Given that the governmental management of public institutions is always based on the laws, it would be helpful to review the basic law system to manage the public institutions in searching for the fundamental remedy for their alleged illness. Based on two theories, principal-agent theory and new public management theory, this study tries to understand the law system on the public institutions management comprehensively and analyze the appropriateness of the goal and contents of governmental management of the institutions on the relevant laws. This study argues that while it is necessary for the government to intervene in the operation of public institutions to secure the fulfillness of public interests, the intervention should not restrict the minimum autonomy required to acquire the efficiency expected as independent public entities. It also suggests that for the balanced fulfillment of both public responsibility and efficiency, the differentiated management strategies for each type of the instititutions are desirable, holding the overarching management principles as they are in the laws. The rational typology of public institutions is necessary before exploring the strategies, of course.

Publicness-Oriented Performance Management System A Study of a New Public Law called GPRAMA -

Hwang-Sun Kang | 2015, (68) | pp.49~79 | number of Cited : 1

City Corporations and labor relations Law in Korea

Song, Kang Jik | 2015, (68) | pp.81~109 | number of Cited : 1

I intend to analyze labor relations of the City Corporations in Korea. The Corporations are established by each local government concerned. I had an opportunity to appraise business management of the 15 Corporations supervised by the Ministry of Government Administration and Home Affairs. In the appraising of business management, I handled labor relations part among some various appraisal parts. Conclusions are as follows: First unfixed term workers generally are not able to join trade union. Second plural unions should in principle unify within a bargaining unit to bargain with an union members’ employer by the Trade Union and Labor Relations Adjustment Act Sec. 29-2. These demands by the Act are not kept. Third there are also some legal problems in collective bargaining agreements. For example union shop clause provides that an employee automatically should be an union member after 30 days from he or she is employed. This like clause is, however, null and void because only an employee has a right to join union or does not. Forth it is not clear to distinguish a function of a Labor Management Council from a function of a collective bargaining where a trade union is established. A function of the Council is expected to pursue a cooperation between an employee side and an employer side, but a collective bargaining has in principle a character to adjust or compromise their interests each other. The Council directly or substantially takes, however, a role of the collective bargaining. Only the Council fails to an agreement, objects concerned are negotiated in the collective bargaining table. Finally a system of appraising of business management excessively intervene in labor relations. It should be noted that a decision of labor conditions, and terms of employment of contract in principle must be reserved to the autonomy by an employee and its employer especially through the collective bargaining. According to the system, however, it compels all Corporations to keep uniform standards with respect to holiday, leave etc. Also the system takes strongly a negative position against a strike.

A Critical Study on the Educational Goal and Method in Korean Law School - Centering around the relative intensification of ‘Basics of Law’

LEE JONG-KHIL | 2015, (68) | pp.111~144 | number of Cited : 1

Study on Inter-regional Conflict of Laws in China

CHO DONG JE | 2015, (68) | pp.145~178 | number of Cited : 2

Ein Beitrag zum verfassungsrechtlichen Mutterschutz

Hyeyoung Jung | 2015, (68) | pp.179~208 | number of Cited : 8

PDF

The Constitutional Study on the Permission of Duplicate Candidacy in Parliamentary Elections

박해영 | 2015, (68) | pp.209~244 | number of Cited : 3

National Election Commission has recently submitted comments of Political Relations Act amendment to the National Assembly. They allow duplicate candidature in the parliamentary elections and proposed the introduction of proportional representation divided the country into several zones. Both systems have never undertaken in heavy discussions on the pros and cons. Since the electoral system is the process to elect representatives of the people who faithfully perform the important decisions for the country, all the procedures must be objective and fair and must be able to accurately reflect the will of the people, yet it is difficult to decide which system will be the most beneficial for the country and its citizens. It shall be determined by considering the factors influencing a country's laws and institutions such as political, social, culture and tradition. The discussion of whether to allow the access of redundant candidacy is also preferred. Good systems in foreign countries also do not suit our country as the end results will be negative due to incompatibility. In particular, it is necessary be cautious introducing a new system. Especially a system that is not often used in many countries. The purpose of this paper is to research a constitutional point of view represented by the opinion that it is not reasonable to allow duplicate candidature in the parliamentary elections in the Republic of Korea. The paper will review the proposals of the National Election Commission about permission of allocation duplicates and then investigated other countries' case law and doctrine by adopting the system, such as Japan and Germany and examine the specific grounds of opinions of the pros and cons of the proposal in the Republic of Korea. The conclusions were presented in a way that complements the problems of the current system rather than introducing a new system.

Systematization of the Korean theory through comparison legal examination of the loss compensation concept - Mainly on the consistency reconsideration of the loss compensation theory of our country through Korea, Japan, loss compensation theory analysis of Germany -

YeonPal Cho | 2015, (68) | pp.245~279 | number of Cited : 3

PDF

Ossennbühl said that Because the precedent after the gravel collection judgment(BVerfGE 58,300(324)) is hard to be called the expropriation similar infringement. It should call yourself “.Anspruch aus rechtswidriger Eigentumsverletzung”. Therefore, I call an expropriation resemblance infringement theory before the gravel collection judgment an old expropriation resemblance infringement theory. And I call an expropriation resemblance infringement theory after the gravel collection judgment a new expropriation resemblance infringement theory. I think that I can reduce the confusion in many theories by doing it in this way. And in the Japan, it classify when a non-property right is violated when a property right is violated by an illegal no fault act. In the former case, 'Theory to be able to demand loss compensation from a court' is a common view, a precedent. In the latter case, (when a non-property right is violated) there is the theory that loss compensation based on constitution Article 29 Section 3 is possible, but there is the theory that there is not. And in the korea, there is an opinion to object to by the introduction of the separation theory. The opinion says that there is a difference between expropriation (Enteignung) in the German fundamental law and the Korean constitutional rules. Therefore, it is said that the opinion cannot just receive a German separation theory. However, the German civil court sorted restriction on a private right for public utilities as follows. the restriction on a private right for public utilities that it is impossible to submit to. and the restriction on a private right for public utilities that it cannot be hoped that submit to it without compensation. And, in the case of the former, assumed it "a limit" by fundamental law Article 14 Clause 3. Therefore, it is thought that can adopt the separation theory as far as I interpret a limit of constitution Article 23 Clause 3 like the former in Korea. I agree to the introduction of the separation theory in such a meaning and answer in the affirmative in the introduction of the new expropriation resemblance infringement theory. However, I object to the introduction of the old expropriation resemblance infringement theory. A separation theory and the old expropriation resemblance infringement theory are because they cannot coexist on the logic.

The Development of Property Division at Divorce and its Improvement Direction

Lee Hye Jin | 2015, (68) | pp.281~299 | number of Cited : 3

Elements to Establish Fraudulent Transfer for Future Creditors' Right to Payment

kang hyelim | 2015, (68) | pp.301~335 | number of Cited : 1

When fraudulent transfer is made before the debt is incurred, (future) creditors are not in general allowed to apply to the court for the revocation of such fraudulent transfer. In exceptional cases, however, the Supreme Court has held that future creditors are qualified to apply to the court for the revocation of the fraudulent transfer in case the following three elements are established: (i) Existence of legal or factual relations to establish a future creditor's right to payment; (ii) High probability to establish the future creditor's right to payment; and (iii) Actual establishment of the future creditor's right to payment. However, the above principles established by the Supreme Court may lead to a concern that the scope of future creditors' right to payment against fraudulent transfer could be interpreted too broad due to the following reasons: (1) too many factual relations could become bases to establish future creditors' right to payment; and (2) the meaning of high probability is too abstract and not objective. Such concern regarding the scope of future creditors' right usually occurs when the right is established by legal acts such as execution of contracts, so objective standards are necessary to determine ‘factual relations’ and ‘high probability.’ The Supreme Court and many scholars in Korea have observed that, in order to establish fraudulent transfer, the obligor conducting such transfer should have merely a general goal of shielding assets without any specific creditor in mind. On the other hand, the U.S. Supreme Court has held that a future creditor is capable of voiding the transfer as fraudulent if the transfer was made by the obligor with the intent to defraud that particular creditor. My paper suggests that, in order to establish fraudulent transfer for future creditors, the obligor should have at least the knowledge of the particular creditor who is raising claims against the obligor under fraudulent transfer.

A Study on the Legislation of Rules of State Immunity in Korea

SHIM YOUNGGYOO | 2015, (68) | pp.337~375 | number of Cited : 4

In international law, state immunity (or sovereign immunity) has been recognized as a general rule to protect the state’s government and property within a national jurisdiction of any other state, which restricts the execution of national jurisdictions over other states. This rule of immunity which has conventionally been divided into two categories – the rule of absolute immunity and rule of restrictive immunity, was capable of causing unpredictable and substantial risk to individual litigants dealing or making a contract with a foreign sovereign state, even in the cases of wrongful measures by the foreign state such as an unjust or unjustifiable breach of the contract, particularly under the classical rule of absolute immunity. Consequently, most states have recently supported and adopted the rule of restrictive immunity, instead of the traditional rule of absolute immunity, to protect individuals who are capable of remaining in uncertain and unstable positions. Furthermore, regional and international conventions as well as many domestic laws of the US, UK, Canada, Australia, etc. are adopting the rule of restrictive immunity. Introduction and application of the rule of restrictive immunity can be a crucial matter to protect our nationals. Nevertheless, unlike other countries, Korea doesn't have a domestic legal basis for the rule of state immunity yet. Although there has been a possibility of the establishment of the rule of restrictive immunity in judicial practice because Korean national courts have recently decided several rulings according to the rule of restrictive immunity, the necessity of legislation of the rule of restrictive immunity has been emphasized in light of the other states handling the issue with legislative measure. Based on this recognition, this research paper particularly reviews not only the 「US FSIA」 and 「UK SIA」 as representative legislations of states but also 「European Convention on State Immunity」 and the 「United Nations Convention on Jurisdictional Immunities of States and Their Property」 as major codification cases of the rule of state immunity. Through this consideration, this paper examines and suggests a basic direction, standard, and necessity of legislation of the rule of restrictive immunity in Korea. The author expects the discussion in this paper to somewhat contribute to setting up a basic direction of legislative policy for the introduction and application in accordance with international trends and standards of the rule of restrictive immunity.

South Asian Free Trade Area (SAFTA) and Regional Integration: Revisit the Existing Reality

정회영 , Dhruba Kumar Gautam , Lee, Hak-Chun | 2015, (68) | pp.377~403 | number of Cited : 0

The issues of trade liberalization, free trade, and regional as well as global economic integration are the subjects of widely focused area in international trade and policy research. Following the growing trend of other regional trade blocks for trade liberalization and market integration like: ASEAN Free Trade Area (AFTA) formed in 1993, The North American Free Trade Agreement (NAFTA) created in 1994, the deeper integration and continue expansion of European Economic Community (EEC), the agreement of South Asian Free Trade Area (SAFTA) was signed in January 2004. SAFTA initiates to start up regional trade integration after two decades of the establishment of South Asian Association for Regional Cooperation (SAARC). While forming SAFTA, it aimed to act as a stimulus to the strengthening of national and SAARC economic resilience, and the development of national economies of the contracting states by expanding investment and production opportunities, trade, and foreign exchange earnings as well as the development of economic and technological cooperation. Based on these, the purpose of this paper is to explore the real ground of market integration in South Asia and attempts to examine trade realities. Further, it also examines the potentialities of implication of SAFTA identifying its possible direction for future. Based on secondary source of information, trades within the region are more focused to reach into the conclusion. Even though, high potentialities remained for trade and investment integration in this region, it is understood that it lags behind market led integration. The statistical evidence shows that intra-regional trade among South Asian Region is rising slowly, indicates prospects as well as challenges for regional economic integration. Therefore, this paper argues some way forwards to be able to nurture the benefit of SAFTA. The literature in the area of SAFTA is dearth and it is expected that this paper might contribute to the field and provide worth to the policy makers of this region.

The Right of Labor Organizations to Bargain Collectively and Its‘ Independence

Gyo-Sook Kim | 2015, (68) | pp.405~433 | number of Cited : 0

Collective bargaining is a fundamental right. It is a key means through which employer and their organization and trade union can establish fair wages and working conditions. It also provides the basis for sound labor relations. The object of these negotiation is to arrive at a collective agreement that regulates the terms and conditions of employment. Collective agreements may also address the rights and responsibilities of the parties thus ensuring harmonious and productive industries and workplaces. Enhancing the inclusiveness of collective bargaining and collective agreements is a key means for reducing inequality and extending labor protection. Workers' independent right to bargain collectively should not be impeded or restricted by the public authorities, especially by the legislation or the enactment. Workers' independent right to bargain collectively should include such rights as follows; ① the right to choose the party to bargaining, ② the right to elect the bargaining representatives in full freedom, ③ the right to choose the bargaining form, ④ the right to contract the collective agreement etc. ILO Convention No.98 (Convention concerning the Application of the Principles of the Right to Organize and to Bargain Collectively) Article 4 regulates as follows; “Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers' organization and workers' organization, with a view to the regulation of terms and conditions of employment by means of collective agreements.” This paper suggests the problems and their amendments of the Labor Union and Labor Relations Adjustment Act 2014(LULRAA) in violation of the Constitution Law Article 33 as well as the ILO Convention No. 87 and No. 98. as follows; ① the subject of the right to bargain collectively(LULRAA Article 29), ② the right to choose the party to bargaining(LULRAA Article 29 2 sub.1), ③ the right to elect the bargaining representatives in full freedom(LULRAA Article 29 2 sub.2 and 3), ④ the right to decide the bargaining unit(LULRAA Article 29 2 sub.1), ⑤ the right to demand the collective bargaining(LULRAA Article 30), ⑥ the right to contract the collective agreements(LULRAA Article 31 and Article 34). Conclusively speaking, I want this paper contributes the amendment of LULRAA to correspond with the Constitution Law as well as the ILO Convention No. 87, No. 98 and No. 154.

Definition of Social Welfare Law and Proposals for the Reform of Legal System

이중호 | 2015, (68) | pp.435~476 | number of Cited : 4

PDF

This paper is of the concept of social welfare and system of legal on the social welfare. Here is examining difference of the concept of social welfare On the side social welfare science and jurisprudence. the concept of seeing any difference, and the difference is that where is occurring, and what legal basis, a system of social law how it was at the Look. Naw days, Service practice cases is tend to put too much emphasis in the areas of Social Welfare. No matter how good the services of social, services are also service subject and demander passed they are made through trail and error. Consequence, the time and cost of importing waste. Social welfare policies, no matter how good the law can take effect without the constitutional Artical 10 to Joe because Joe Artical 34 of essential social welfare and social welfare laws so we can confirm the importance of law and Social Security Business Act. However, the ideological premise of social welfare-related ideas and concepts mentioned at fault ‘as a means of social welfare gwangui’. In other words, learn about the social security system and welfare scholars have classified the scheme would also briefly mentioned. The actual circumstance of studies on the legislation system of social welfare in korea is insufficient, so the more research efforts are required for systematization of social welfare laws. The social welfare law is defined in this study as every laws that insure the human life within social relations and rule the public, and private systems & politics etc. for realizing social justice. and this study suggested the legislation system of social welfare in korea divided into the social security act and the laws in connection with social welfare appling the concept in broad sense. It included in the social security act, general social security(2), social insurance(10), public assistance(6), social welfare service(21) laws and included in other laws in connection with social welfare, the laws(151) that legislated for insuring the human life of constitutional law trying to categorize by classifying into public health․hygiene, residing․environment, education, employment․labor, traffic, feminine․family, children․adolescent, veteran․compensation, human rights․protection and other general social welfare area.

KJCKorea
Journal Central

DONG-A LAW REVIEW 2023 KCI Impact Factor : 0.65

2015, Vol., No.68