2016, Vol., No.70

The Content and Features of the Preliminary Examination System of North Korea’s Criminal Procedure Act - The construction comment of related provisions and the implications -

HA TAE YOUNG | 2016, (70) | pp.1~73 | number of Cited : 2

The criminal procedure of Republic of Korea is made up of procedure of investigation, procedure for judgment and procedure of execution. On the other hand, The criminal procedure of North Korea is consisted of four parts; investigation, preliminary examination, prosecution, and judgment. The criminal procedure Act of North Korea has the special preliminary examination system. All criminal cases in North Korea go beyond the trial after the preliminary examination. In fact, The preliminary examination performs a very important task enough to influence the outcome of the trial. The preliminary examination in the criminal procedure Act of North Korea serves to connect the investigation and prosecution. It is the most important procedure that is made up of 103 provisions from the Article 147 to the Article 259 in criminal procedure Act of North Korea. It has formidable provisions which embedded with the substantive truth discovery and a meaning of the criminal policies. It is considered that the preliminary examination conducts the first trial role. The preliminary examination must finish within 2 months from date of the commencement. The preliminary examination institution will determine the preliminary examination within 48 hours after receiving the case from law enforcement agencies, and will determine inquiring into criminal responsibility. The parties are notified of those determination and selected lawyer within 48 hours. And the decision in writing of inquiring into criminal responsibility is sent to prosecutor. Interrogation is to give the parties an excuse opportunities for crimes. Interrogation is carried out within 48 hours, and finishes between 8:00am and 8:00pm. It prohibits threat, induction, and forced interrogation, and will be an individual and separate interrogation. The parties state the case and then the preliminary examination institution interrogates them. The preliminary examination institution recorded all the witness statements, puts even two witness, and can take advantage of an interpreter. Finally, The preliminary examination institution writes the interrogation record, shows the parties it, gives an opportunity to the parties to modify or supplement the content, and gets thumbprint from the parties. After terminating the preliminary examination, the preliminary examination institution notify the parties of it and give them the right to read a recording. At this time, the lawyer is also possible to read a recording. This record is sent to the prosecutor. This is the preliminary examination process of North. The author examined the preliminary examination in North Korea’s criminal procedure Act; duties, conditions, procedures, format, conclusion. And the author also examined provisions about the preliminary examination institution in North Korea’s criminal procedure Act. In conclusion, the author compared the preliminary examination system with the Criminal Procedure Act of the Republic of Korea, pointed out a few other points and found implications. It is suggested that it needs to organize legal terminology until the unification. It is necessary to analyze the similarities and differences about investigation procedures between North Korea and the Republic of Korea and to establish a standard of judgment for recognition and denial of the evidence gathered in the investigation procedure of North Korea. In addition, it has to select the victims(pending investigation into the parties, pending trial the parties, final and conclusive judgment parties). And then it has to review the measures to remedy victims who is suffered from illegal investigations in North Korea's criminal procedure. It’s time to study the batch processing, selecting processing methods, and measures to be handled by separating criminal groups(serious criminal offense, misdemeanor, a political crime). If the core of the investigation is realization of justice and human rights protection, it is thought to be an important criterion in the integrated process. It is as in the following; Constitution of the Republic of Korea Article 10 (human dignity and fundamental human rights guarantee), Article 12 (the body's freedom, due process, evidence of the ability of confession), Article 13 (penalties nonretroactivity, the principle of not reopening a settled case, retroactive legislation limits, prohibit guilt by association system), Article 27 (rights to a trial, the accused presumption of innocence), Article 28 (criminal compensation), Article 30 (criminal injury structures). It needs an integrated approach beyond the implicit approach.

Die Untersuchung im nordkoreanischen Strafprozessrecht

Ji-Yun Jun | 2016, (70) | pp.75~111 | number of Cited : 3

The Contents and Features on Evidence Law in North Korean Criminal Procedure Law

Suh, Bo-Hack | 2016, (70) | pp.113~154 | number of Cited : 2

Given a formal appearance of North Korean Criminal procedure law, especially evidence law, It looks close to that of a constitutional state's counterpart. for instance, rule of scientific investigation and trial by evidence (article 29-1, article 31), collection of evidence by legal procedures (article 29-2), confession exclusion rule (article 37-1), confession supplement rule (article 37-2) and rule of free evaluation of evidence (article 36). In formal aspects, there are also many rules not much lacking in the form of law, compared to the South Korean criminal procedure law. for example, rule about collection and seizure of evidence. registration of evidence, drawing up of a protocol, keeping the evidence, review and assessment of evidence, participation during seizure and search, transfer and handing of evidence. Furthermore, article 33 shows a distinct feature of North Korean Criminal procedure law which can't be found in South Korean counterparts. It says that collection of evidence should be firmly based on the force and wisdom of awaken people. However, scrutinizing the actual contents in more detail, we can find out that North Korean evidence law includes some limitations which are difficult for us to accept from the viewpoint of principle of a law abiding country's criminal procedure law. Here are the typical examples. First, in order to determine whether the suspect is guilty or not, North korean evidence law still focuses on ‘class point of view’ or ‘the best way to a revolution’. as the most important appraisal guidelines, although its face represents trial by scientific evidence. Second, the evaluation of statement’s credibility is mainly based on political environment, class position, level of consciousness and loyalty to a party of person making a statement. Third, in the event that statement about denials of the charges proves false, the suspect should prove himself to be not guilty (article 37-3). This article is not adequate enough to be admitted to the legal system of a law-governed country because it makes the country become immune from the responsibility of proof and actually forces a suspect to make a confession. Fourth, the fundamental principles of a constitutional state’s criminal procedure law - the presumption of innocence, in dubio pro reo, the exclusive rule of hearsay - are excluded in North Korean evidence law, because such principles are considered as the deception and hypocrisy that capitalistic and bourgeois criminal procedure law has. Finally, it has another problem that a high value is put on the policy of the party and the working class, not the principles of free evaluation of evidence, during the evidence evaluation. In conclusion, it is difficult for us to believe that in North Korea, the investigation and trial for finding of substantial truth and procedural justice are running to protect human rights and the defence rights, because the evidence part of the North Korean criminal procedure law is still in the beginning stage.

Search and Seizure in North Korean Criminal Procedure

Jae-Bong Kim | 2016, (70) | pp.155~188 | number of Cited : 1

Arrest and Detention under the Criminal Procedure Act of North Korea

Lee, Baek-Gyu | 2016, (70) | pp.189~221 | number of Cited : 2

Chapter 4, Section 4 of the Criminal Procedure Act of North Korea prescribes about arrest and detention. Arrest and detention are compulsory disposition against human body. Such compulsory disposition is executed at a prosecutor’s sole discretion. In other words, arrest and detention can be executed only by a prosecutor’s approval and the court warrant system is not adopted. Accordingly, systems for reviewing the legality of detention, requesting bail, etc. are not in place. In principle, arrest and detention shall be executed by ye-sim-won at the investigation (ye-sim) stage (Article 175). Ye-sim-won shall make a decision on whether to question the criminal responsibility of a criminal prior to the execution of arrest/detention (Article 177). In principle, arrest and detention may be executed if a criminal who is acknowledged to have committed a crime subject to a limited-term correctional labor (yu-gi-ro-dong-gyo-hwa-hyeong) or heavier punishment is likely to either avoid ye-sim/trial or obstruct investigation into a criminal case (Article 178). An arrest warrant shall be issued by a prosecutor so as to arrest a criminal (Article 180). In case of emergency, an investigative agency (su-sa-won) may also arrest a criminal subject to investigation without obtaining a prosecutor’s approval (Article 142). This is the case with flagrant offenders, etc. In case of such emergency arrest, an investigative agency shall prepare a written decision on imprisonment within 48 hours, obtain approval therefor from a prosecutor, conduct investigation within 10 days and refer the case to the court of preliminary trial (Article 143). Detention is classified into penal detention, house detention and area detention and ye-sim-won shall prepare a written decision on detention and obtain approval therefor from a prosecutor (Articles 183 through 185). The detention period is (i) 10 days at the investigation stage, (ii) up to 5 months at the ye-sim stage, (iii) up to 15 days at the prosecution stage, (iv) 25 days at the first trial stage and (v) 25 days at the second trial stage (Articles 143, 186, 187, 262, 281 and 365). As such, detention for a long period of time is granted at the investigation stage in North Korea, which differs from the detention system of South Korea.

Serious aspects of the North Korean Criminal Procedure Act against International Covenant on Civil and Political Rights

Tae Hun Kim | 2016, (70) | pp.223~248 | number of Cited : 0

Study on the Charter Party under the Chinese Maritime Law

Cheong Yeong Seok , Hai-Yan Cheng | 2016, (70) | pp.249~280 | number of Cited : 0

As of the end of the year 2013, Korea was ranked number one in the import of China and China was the biggest trade partner of Korea, which directly shows the economic development between the two countries. Most of the import or export goods are carried by sea transportation. In this sense charter parties are widely used as an important contract type for carriage of goods by sea. Therefore maritime law can be said to be a very important source of law in international transaction. Considering the volume of the trade and the shipping power of both countries, the Korean Commercial Code or the Chinese Maritime Code should be the governing law with respect to the trade between Korea and China, though English law is still chosen as the governing law in many contracts. Nevertheless we need to enhance our understanding on the charter party law of China in preparation for the future when the Korean Commercial Code or the Chinese Maritime Code are more often chosen as the governing law of contracts. While English law, which can be said to be the origin of the charter party law, has a case law system and does not have a written code for the charter party law, China has a written code, i.e. the Chinese Maritime Code, which regulates charter party contracts. Thus, the Chinese Maritime Code can be said to have features for written codes and written contracts and it has the maritime procedure and courts under the Maritime Litigation Special Code. As a manifest feature of the Chinese Maritime law, disputes under the charter parties belong to the maritime litigation. A charter party law is a dispositive law, which is a natural feature of it. All the maritime laws of the world are interpreted in that way. A bare boat charter party is one of the typical leasing (or demise charter) contracts and the Chinese Maritime Code has relatively specific regulations for the rights and obligations of the ship owners and the rights and obligations of the charterers. It has adopted the contents of Barecon 89 in general and thus does not have its own features. For time charter parties, the Chinese Maritime Code has adopted the contents of Baltime and, for voyage charter parties, it has adopted Gencon. It does not have its own features for both time charterparty and voyage charterparty, too. Nevertheless, though the Chinese law makers tried to adopt English law widely, they were already influenced by the Japanese academia and they regulated time charter party and bareboat charter party under the concept of the vessel leasing contract and regulated voyage charter party under the concept of contract of carriage of goods.

Public Works and the Legal Characteristic of Free Use in Korea

Kye, Seung-Kyoon | 2016, (70) | pp.281~306 | number of Cited : 4

The Study of the prohibition on employee's transfer to a competitor

Kang Myung Soo | 2016, (70) | pp.307~341 | number of Cited : 6

Prohibition of competitive transaction or prohibition of taking jobs on competing companies prohibit managers or workers cannot work for competing companies in same or similar business field or for same or similar task after termination of contract of service. That has been a subject of studies in UNFAIR COMPETITION PREVENTION AND TRADE SECRET PROTECTION ACT and LABOR STANDARDS ACT. However, there is no clear division between prohibition of taking job on competing companies and prohibition of dealing with same or similar tasks, and those two terms are commonly used. Two terms should be clearly divided since those terms restrict workers in consideration of freedom of occupation. Based on that, requirement and tolerance range of prohibition of competitive transaction or taking jobs on competing companies should be studied. Requirement or tolerance range of prohibition of taking jobs on competing companies compared to those of prohibition of competitive transaction should be strictly limited. Since previous studies were not able to give a detailed analysis for those requirement or tolerance range, it is necessary to study properly to give a detailed analysis for those requirement or tolerance range to apply prima facie standard given by precedents. In addition, prohibition of taking jobs on competing companies is accepted under certain conditions even though there is no contract of prohibition of taking jobs on competing companies to protect trade secret of business. therefore, there is no difference whether there is contract of prohibition of taking jobs on competing companies or not. In other words, prohibition of taking jobs on competing companies is accepted to protect trade secret of business whether there is contract of prohibition or not. However, there should be differentiated between there is contract of prohibition and there is no contract of it since that decides whether obligation duty can apply to workers or not. Thus, there should be studies and researches to define specific differences in prohibition of taking jobs on competing companies based on whether there is contract of prohibition or not. In addition, about prohibition of taking jobs on competing companies, it is necessary to demand strict proof of existence of prohibition of taking jobs on competing companies, to investigate effectiveness of prohibition of taking jobs on competing companies, and to find standard on exclusion of application. It is also necessary to consider effectiveness of breaching the prohibition between prohibition of competitive transaction and taking jobs on competing companies and to affirm the contract which is the amount of compensation for breaching the prohibition. Based on this, we should establish general system of prohibition of taking jobs on competing companies.

Gutgläubiger Erwerb bei Pfandrecht bestelleten beweglichen Sachen und Schutz von Pfandrecht an beweglichen Sachen - nach dem Gesetz über Sicherheitsleistung von beweglichen Sachen, Forderungen, usw. -

BYEONG-JU JANG | 2016, (70) | pp.343~378 | number of Cited : 4

Regulierung der globalen Höchstbetragshypothek

Kim Seongeun | 2016, (70) | pp.379~407 | number of Cited : 1

Die Höchstbetragshypothek im koreanischen Bürgerlichen Gesetzbuch (KBGB) wird nur einziger Paragraph geschafft, deshalb hat sie Beschränkungen, verschiedene juristische Relationen zu behandeln. Aus diesem Grunde werden in der Praxis die Erfahrungen und Anwendungsbeispiele in Japan sehr viel angenommen. Für die Disjunktion zwischen dem Paragraph über die Höchstbetragshypothek im KBGB und der Praxis gibt es z.B. die globale Höchstbetragshypothek. Die Problematik dafür ist die Wirksamkeit der globalen Höchstbetragshypothek und die Beschränkung auf die gesicherte Forderung der Höchstbetragshypothek. Infolge des Missverständnisses der deutschen Pandektisten über römisches Recht, entstand das Akzessorietätsprinzip der Hypothek. Darum ist es als absolutes Dogma nicht anzunehmen. Die globale Höchstbetragshypothek im KBGB besteht durch den Höchstbetragshypotheksvertrag, der die Bestellung der Höchstbetragshypothek für die Sicherung der bestimmten Forderung bezweckt. Wenn die globale Höchstbetragshypothek bestellt wird, kann akzeptiert werden, dass die Akzessorietät der Höchstbetragshypothek mit der gesicherten Forderung entsteht. Und die globale Höchstbetragshypothek kann mit dem koreanischen allgemeinen Geschäftsbedingungengesetz reguliert werden, also dass Wirksamkeit des Höchstbetragshypotheksvertrags sowie Umfang der gesicherten Forderung beschränkt werden. Auf dem Entwurf im KBGB 2004 wurde der Umfang der gesicherten Forderung beschränkt, damit die globale Höchstbetragshypothek verneint werden wollte. Aber wurde dieser Entwurf infolge des Ablaufs der Legislaturperiode aufgehoben. Auf dem Vorentwurf im KBGB 2013 ist die globale Höchstbetragshypothek weiter zuzustimmen. Dagegen wird mit der Führung des Instituts für Finanzdienstleistungsaufsicht die globale Höchstbetragshypothek in der Praxis reguliert. Auch während der deutsche Gesetzgeber die durch die Rechtsprechung und die Lehre anerkannte Sicherungsgrundschuld im BGB kodifizierte, wurde dieses Prinzip für den Zweck des Schulnerschutzes revidiert. Die Disjunktion zwischen dem Paragraph der Höchstbetragshypothek im KBGB und der Finanzpraxis wird immer vergrößert. Daher ist die Veränderung im KBGB zum Verbot der globalen Höchstbetragshypothek nötig.

A Study on Institutionalization of Neutrals for ADR Establishment

Park, Chul-Gyoo | 2016, (70) | pp.409~438 | number of Cited : 4

Die Forschung über die öffentliche Behelfe der Verbraucherverbandsklage im Arzt durch das Gewinnabschöpfungsanspruch

Lee， Myoung Min | 2016, (70) | pp.439~469 | number of Cited : 3

Les Constitutions de la France depuis la Révolution

김충희 | 2016, (70) | pp.471~597 | number of Cited : 4

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2016, Vol., No.70