2018, Vol., No.79

A Review on Constitutional Issues of the Employment Restriction System Imposed on Sex Offenders

Gyeongsu Yeo | 2018, (79) | pp.1~25 | number of Cited : 7

Die Gegenwartsgesellschaft und der Lebenshochschätzungsgedanke

Song Seunghyun | 2018, (79) | pp.27~65 | number of Cited : 9

A Study on the improvement Direction for the Current North Korean Human Rights Act

Song, In-Ho | 2018, (79) | pp.67~94 | number of Cited : 5

After the debate over the past 11 years, the North Korean Human Rights Act was enacted in 2016, but two years later, the North Korean Human Rights Foundation, a core organization, has not even been launched yet. In this paper, we tried to examine the improvement direction for the current North Korean Human Rights Act. First of all, North Korean Human Rights Act should be revised according to the concept of universal human rights and the constitutional spirit expressed in the Preamble and Articles 3 and 4 of the Constitution that protect the North Korean as the South Korean. From this point of view, the improvement of human rights in North Korea are not only the responsibility of the state but also the responsibility of local governments. The responsibility of local government should be stated in the North Korean Human Rights Act. In addition, Because Article 2 (2) of the North Korean Human Rights Act might be misunderstood as if efforts to improve human rights in North Korea might be contradicted to endeavor to establish peace on the Korean Peninsula should be deleted. In addition, Article 3 of the North Korean Human Rights Act should expand the definition of North Korean residents to include North Korean defectors. In order to minimize direct political influence and conflict, and to ensure neutrality and professionalism, it is necessary to revise the composition of the directors of the North Korean Human Rights Foundation, which is currently recommended by the same number of political party and qualifications need to be stated in the law. Since the purpose of the legislature is to prepare for the legal settlement of the transitional justice in the North Korean Human Rights, it is appropriate to have a leading investigative body under the Ministry of Justice at least for specific cases of human rights violations. Education for the general public, especially youth, on the situation of human rights in North Korea should be added to the work of the North Korean Human Rights Foundation in order to promote mutual understanding and integration between North and South Korean residents after reunification and not to repeat the history of North Korean human rights violations. In order for North Korea's human rights abuses to be repeated on the Korean Peninsula again, it is imperative to face and remember the human rights issue in North Korea. It should not be forgotten that this is the mission and responsibility of the Republic of Korea, which has maintained and developed the spirit of ‘Democracy’ and ‘Human dignity’ for the past 70 years.

A Study on the Regulation on Trial Run of Autonomous Vehicle

BAEK KYOUNGHEE | 2018, (79) | pp.95~123 | number of Cited : 8

The Problems and the Ways of Improvement of the Rights of the Suspect in the Procedure of Investigation in China

Park, Ji-Seong | 2018, (79) | pp.126~150 | number of Cited : 0

A Scope of Return of The Claim for the substitute for Excess Profits

Bae, Sung Ho | 2018, (79) | pp.151~179 | number of Cited : 1

The right to claim the object can be found in the sense that it is the correction of the distribution of property value based on the ideology of equity. If the benefit is not available in the bond relationship, the debtor will be free from the bond law restraint and avoid the obligation to pay. As a result, the debtor obtains the right to claim the object of benefit or the object of benefit. These would have belonged to the creditor if they had fulfilled their original benefits, so handing it over to the creditor is in accordance with the ideology of equity. Given that the insurance premiums are the object of the benefit that is replaced by the purpose of the accidental fire, it can not be denied that it is equitable to repay the insurance premiums to the creditor who has paid the benefit risk. It is a contradiction in itself to deny the objectivity of the insurance because the seller concludes the insurance contract for the fire damage for the benefit object because the seller bears the risk of loss of the benefit object and fulfills the duty of payment. Whether it will be covered by insurance or claim claims is considered because of the fact that the claim for the purpose of the right to claim the right to adjust the distribution of the value of the property that is not actually legitimate and the claim for the claim is caused by the accident. The right to claim is a separate system from the right to claim the return of unfair advantage. There is no inevitable reason to coincide with the scope of return of unfair advantage. According to the principle of the damages law or the principle of the unfair advantage law, it is true that even if there is profit that exceeds the damage or loss caused, it can not be claimed. However, it is unreasonable to apply this principle to the claimant claim that claims instead of the implementation of the benefit. Since the right to claim is based on the principle of the object, it is reasonable to deliver the entire profit obtained to the creditor without asking the reason for the liability of the debtor in the legal effect as long as the claim is recognized.

Gift Tax due to Nonconsent Divorce and Division of Property Agreement - Supreme Court Decision 2016du58901 decided September, 2017 -

PARK KEUNWOONG | 2018, (79) | pp.181~207 | number of Cited : 2

A Study on the Necessity and Revitalization of the Mandatory Electronic Voting System

Park Eunyoung | 2018, (79) | pp.209~227 | number of Cited : 4

Due to the complexity of the corporate governance, there is an issue on the restriction of the voting right of stockholders. Consequently, a general meeting of stockholders becomes nominal, so that this might merely represent the corporate management and some of the major shareholders. In order to improve this circumstances and guarantee shareholders to have the right to participate in management, there is a suggestion of an electronic voting system. According to the amendment of the capital market law in 2013, the abolition of the shadow voting was completed at the end of the 2017. Therefore, for the sake of forming a quorum of a general meeting of stockholders, it is necessary to take the measure for the revitalization of a general meeting. The electronic voting makes stockholders exercise their vote without any restriction of time and space. This also makes a corporate sure of invigoration and effectiveness of a general meeting of stockholders. However, effectiveness of electronic voting system is not yet sufficient now, even though several years have passed since the introduction of the system in the commercial law. The discussion on the amendment of mandatory electronic voting system is ongoing. In spite of mandatory electronic voting, there is some doubt about revitalization of a general meeting, though. Moreover, on-line by its nature is likely to make it difficult to confirm identification, and there might be an exercise of vote by unconfirmed rumor. For this reason, there is a possibility that the mandatory electronic voting is not only placing additional pressures on businesses, but also reducing efficiency of it. However, the introduction of mandatory electronic voting system is of any practical use for conversion of awareness of some domestic individual investors who are only concentrating on a short-term profit margin as well as revitalization of positive domestic investment. The introduction of this system might be compulsory unless otherwise compensated in advance for the technical and legal issues by means of the electronic voting system.

Issues with the Recognition and Enforcement of Investment Arbitration Awards: As Revealed Through the Yukos Arbitration

Min Kyu Lee | 2018, (79) | pp.229~255 | number of Cited : 0

An investment arbitration raises questions unique to it compared to ordinary commercial arbitration cases. For instance, an investor who has prevailed in an investment arbitration procedure must first overcome a preliminary hurdle in the issue of sovereign immunity in order to actually receive compensation. In this situation, what is relevant is the notion of sovereign immunity as it is understood under the domestic laws of each state. However, even if an investor overcomes the issue of sovereign immunity through one of several methods which in theory could be relied upon, the losing state could then argue that the recognition and enforcement of the concerned investment arbitration award must be refused in accordance with certain grounds provided by the arbitral rules or domestic laws applicable to each investment arbitration award. Additionally, where the New York Convention is applicable, the losing state could seek to annul the arbitral award based on one of the grounds provided by the New York Convention. One example which accurately shows this problem is the so-called “Yukos Arbitration” regarding the now defunct corporation which was once a Russian oil giant. With respect to this case, on April 20, 2016, the District Court of the Hague annulled the award rendered by the tribunal of the Yukos Arbitration that ordered the Russian Federation to pay $50 billion to foreign investors of Yukos. The decision by the District Court of the Hague explicitly reveals this issue with the recognition and enforcement of investment arbitration awards. Indeed, the investors of the concerned arbitration proceeding have yet to receive anything at all from the Russian Federation despite having received an arbitral award for such an astronomical amount back in 2014. Here, the decision of the District Court of the Hague has added further uncertainty to the future and outlook of the concerned arbitral award. At the same time, however, under the New York Convention an arbitral award does not automatically lose its effectiveness in another jurisdiction simply because it has been annulled at its place of arbitration. Rather, the courts of other states are given discretion over whether to recognize and enforce the award in accordance with the domestic laws of the concerned state. As a matter of fact, the investors of the Yukos Arbitration continue to seek the recognition and enforcement of the arbitral award at hand in jurisdictions other than the Netherlands. As such, one cannot help but become curious about how the decision of the District Court of the Hague will be received elsewhere. After briefly introducing and analyzing both the Yukos Arbitration and the decision of the District Court of the Hague, as a final note this paper questions fundamentally the process of recognizing and enforcing investment arbitration awards under the New York Convention.

Developments in Commercial Arbitration in Vietnam: an Analysis of the Legal Framework and Specific Issues

Le, Net , SHIN CHOONG IL | 2018, (79) | pp.257~286 | number of Cited : 2

The purpose of this paper is to review the current situation of commercial arbitration in Vietnam, as well as the legislative framework and certain key provisions of the relevant laws. Vietnam has made efforts to induce foreign investments since it undertook the Doi Moi policy in 1986, and Korea has made the largest cumulative investment in Vietnam. With the increasing foreign investments, disputes between foreign investors and local partners are also on the rise. Under these circumstances, more foreign investors and legal practitioners are considering commercial arbitration an effective and efficient method to resolve disputes. There are a number of commercial arbitration centers in Vietnam, and 155 cases were handled at Vietnam International Arbitration Center in 2016. As for the legislative framework, the basic law regulating arbitration proceedings in Vietnam is the Law on Commercial Arbitration (54-2010-QH12). This law regulates commercial arbitration competence, arbitration forms, arbitration institutions and arbitrators, arbitration proceedings, rights and obligations of the parties, competence of courts over arbitration, and enforcement of arbitral awards. In 2014, the Supreme People's Court issued the Resolution (01-2014-NQ-HDTP) to guide the implementation of certain provisions of the law. The resolution governs the authorities and proceedings of the court regarding arbitration, as well as registration of ad hoc arbitral awards. The Supreme People's Court also issued the Official Letter (246-TANDTC-KT) to provide guidance with regard to the application of the New York Convention. With respect to the enforcement of arbitral award, the Law on Commercial Arbitration and the Law on Enforcement of Civil Judgments (26-2008-QH12) regulate the enforcement of domestic arbitral awards, while the New York Convention and Code of Civil Procedure (92-2015-QH13) govern the recognition and enforcement of foreign arbitral awards in Vietnam. In addition to the current circumstances and legal framework for arbitration in Vietnam, this paper reviews certain key issues under the Law on Commercial Arbitration, such as arbitration agreements, arbitrators, arbitration proceedings, evidence, remedies, and the jurisdiction of courts with respect to arbitration. It is expected that this paper will help investors considering dispute resolution understand the basic issues with respect to arbitration in Vietnam.

The Conflicts and Resolutions between International Trade Law and the Law of the Sea

Eunah Seo | 2018, (79) | pp.287~309 | number of Cited : 1

International Trade Law and the Law of the Sea belong to International Public Law. In every areas, relevant contracting parties as legislatures try to make each different rule, and incompatible rules could be created, consequently. If one of the dispute parties invokes the incompatible rules and justify its violated measures, conflicts of rules may arise. Specifically, this is the circumstance that the measure violating WTO rules can be justified by the provisions under the law of the sea. Although there are no relevant accurate cases engaged in Korea, it is possible for WTO members including Korea to take the measures of trade sanction for the sake of preserving maritime resources. Therefore, discussion of this matter would be relevant and meaningful. In order to resolve conflicts of rules, explicit rules are provided into the agreements for intrinsic conflicts of rules as well as extrinsic conflicts of them, when relevant states contract the agreements. Article 311 of the law of the sea is a representative provision which expressly states the principle of lex posterior derogat legi priori. The provision of the priority of the 1982 agreement rather than the 1958 agreement is applied to corresponding objectives, so that this might not be considered the explicit rule for resolving conflicts of the incompatible rules. This provision, after all, is based by pacta tertiis nec nocent nec prosunt, providing an exclusion from application to the third parties who are likely to be influenced by the 1982 agreement. In case of no statement of explicit rules for resolving above conflicts of rules, lex posterior principle as general international law can be applied regardless of the explicit provisions. This principle has the intent which prevents former laws from affecting the latter laws, due to the latter might be regarded as enhanced and developed provisions. Article 30 of the Vienna Convention states this principle and this is the discussion whether this article can be applied or not. However, it is inappropriate to apply this rule, because of differences of the parties between international trade law and the law of the sea. The principle of Lex specialis derogat legi generali has no particular features compared to the lex posterior principle. These principles merely have roles in making somewhat orders in complicated international law for resolving conflicts of rules. There is another issue of applicable law, in spite of indirect discussion of this theme. The issue of substantial jurisdiction of the international tribunals can be relevant on it. The tribunal of the law of the sea allows rules which are not the ones of the law of the sea, under the article 293 of the agreement. On the other hand, the substantial jurisdiction of WTO dispute settlement body is restricted to the WTO covered agreements. However, the dispute parties are able to invoke the rules irrespective of WTO rules, so there are no differences of both tribunals with respect to substantial jurisdictions. Even though the case which can be justified by non-WTO rules such as some of the rules of the law of the sea, are brought to the WTO panel, it is unfortunate that there is no rule of resolving conflicts of the rules. Some cases such as Swordfish case and MOX Plant case had such conflict issues, but there was no explicit resolution stated. These cases just resulted in negotiation by relevant dispute parties. This means the relevant tribunals did not suggest the priority of the conflicting rules. This is of course comprehensible, since it is too complicated to resolve by means of the Vienna Convention. However, this might be abrupt conclusion, but now is the time to deviated from theoretical and political methods as negotiation of the dispute parties. I make bold to think that expanding exceptions of Article 20 of GATT and allowing the arbitrary and discriminatory measures which have intent to preserve maritime resources. Despite possible exploitation, it would be reasonable to amend the rules of international trade laws to support preservation of marine resources which are irrecoverable when they are damaged.

Verfassung und Politik in Weimar und Dritten Reich

KIM HYO JEON | 2018, (79) | pp.311~435 | number of Cited : 0

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2018, Vol., No.79