2009, Vol.44, No.

The Unconstitutionality of the Compulsory Provision that a Contemplated Project be Satisfying Public Use Without Means-Ends Test in Land Condemnation

류하백 | 2009, 44 | pp.1~40 | number of Cited : 18

Article 23(1) of the Constitution guarantees private property rights of all citizens, Article 23(3) goes on to provide that condemnation of property rights for public use shall be governed by law and upon payment of just compensation therefor. In such a case it has also been provided that it should not affect the essential substances of such rights and liberties recognized by the Constitution. The Constitution provides that private property shall be taken for public use and be governed by law, from which the Public Land Aquisition and Compensation Act(PLACA) enacted provides condemnation proceedings, which a project initiator should take the recognition of project whether his or her contemplated project might be for public use or not. The condemnation of private property rights may satisfy the Public Use Requirement of the Constitution when the proportional relationship may be maintained relationally between the condemnor and the land owners in his or her contemplated project. But by virtue of enacted land development laws it is imposed for individuals, companies, or public entities to enable to exercise eminent domain power artificially in a contemplated project, which PLACA forces to consider for public use notwithstanding lack of satisfying it, which the means “condemnation” as compulsory land purchase method(the exercise of eminent domain power) must consider to satisfy the ends “public use” requirement of the Constitution. And those provisions give him or her a naked grant of authority to determine a contemplated project to take lands needed without any scrutiny of the proportional relationship and due process clause for landowners, which denies the guarantee of the Constitution. Although the planning agency exercising its administrative discretion considers it within the scope of planning discretion to determine a land development project to be taken lands needed by the project initiator, it also has the limit exercising it, where it is required of reasons for fairness and equity between the project initiator and landowners. Meanwhile the Supreme Court and the Constitutional Court may arbitrarily evade a judicial review of the agency actions as well as a means-ends test of the legislation imposed by virtue of provisions of which laws governing the physical taking of property is allowed neither notices nor hearings for the landowners, and may be confused within the discretion of court only in land-takings to enable to exercise the means (the power to condemn) to achieve the ends intended, by which method and factors to consider to meet public use generally. The restriction of private property rights could only be imposed by virtue of provisions of the law specifically enacted for public use determined by the Constitution and only to the extent of necessity, and it should not affect the essential substances of private property rights guaranteed by the Constitution, if not, it is inconsistent with the provisions of the Constitution.

Verwaltungsrecht als Vorgabe für Zivilrecht - Verwaltungsrecht als Vorgabe für Zivil- und Strafrecht(I) -

은숭표 | 2009, 44 | pp.41~66 | number of Cited : 3

A Study about the Agricultural Compensation System

Lee,Heon-Seok | 2009, 44 | pp.67~86 | number of Cited : 8

부동산개발업등록제에 관한 고찰

Kim,Young-Sam , 강의환 | 2009, 44 | pp.87~106 | number of Cited : 2

A Study on the use of River Water in the Public Law

PARK KYUN SUNG | 2009, 44 | pp.107~130 | number of Cited : 14

The Publicness of Housing Administrative Law

Kim, Hyun Joon , Park, woong-kwang | 2009, 44 | pp.131~152 | number of Cited : 7

A Study on the Standing of the Nature

설계경 , 정회근 | 2009, 44 | pp.153~176 | number of Cited : 6

종합부동산세법의 헌법 위반․불합치 결정에 관한 법리적 평가

KIM DOO HYUNG | 2009, 44 | pp.177~208 | number of Cited : 8

A Study on the Disturbance Compensation Of U.K and the Lesson

나채준 | 2009, 44 | pp.209~234 | number of Cited : 2

The paper describes the UK's disturbance compensation such as compensation standards and the contents, main legal issues. The history of the land compensation has already started since the 15th century in the UK. In 1541, the first law, The Bill for the Conduit at Gloucester, to compulsory purchase was enacted. In 1845 ‘Land Clause Consolidation Act’ enacted and general principles of compensation has established. Even then, a variety of compensation law was enacted. Through the several revision, laws was developed very systematic and Carefully. And the theories about the land compensation caused by compulsory purchase, were development. Therefore in U.K, the legal disputes of compensation have been solve reasonably. Exist for the various compensation system, and disturbance compensation is one of that. Now we face a new problem. However, based on the experience in UK already has set up legal and institutional devices. Therefore, we need to study about the UK's compensation system. Until now, the UK's compensation system was not built for research. It is valuable to learn various legal systems for understand foreign legal system, and enlarges the depth of academic. But more important, We should have drawn the lesson from the diversity, in order to provide direction for a number of legal dispute. Through the study of foreign legal system, study researchers should provide a clue to issues that can not solve within the existing legal system of academic theory. In the paper, general information of the UK's disturbance compensation system was introduced. However the main point is what is fair compensation. In the current compensation theory, the subject of emerging or more research needs to be further, is related to fair compensation. So far, all the new discussed problems are related to fair compensation. So, this paper focuses on UK‘s disturbance compensation system for ‘fair compensation’. And this paper is described what's the problem, and how to resolve legal disputes related to compulsory purchase and compensation. The purpose of this paper is contribute to set the theory of the compensation system and prepare the legal system which resolves legal disputes.

A Study on the Cultural Assets Acts of Korea

Hong Wan Sik | 2009, 44 | pp.235~258 | number of Cited : 31

Ein Verständnis des Untersuchungsgrundsatzes im Verwaltungsprozessrecht - Bezüglich des Untersuchungsgrundsatzes des deutschen Verwaltungsprozessrechts -

Kil Joon Kyu | 2009, 44 | pp.259~284 | number of Cited : 5

A Study on the Status of Oligopolistic Stockholders and Improvement Solutions of Oligopolistic Stockholders System in Tax Law

JOONG KYO LEE | 2009, 44 | pp.285~308 | number of Cited : 13

The Improvement Plan of the Calculation System of Current Base Value in Local Taxes

유상호 | 2009, 44 | pp.309~330 | number of Cited : 6

The local Taxes such as Acquisition Tax, Registration Tax and Property Tax are calculated by multiplying the value of tax base to tax rates. Therefore the Current Base Value (CBV) is a very important factor affecting directly the tax burden taxpayers are to be paid. The CBV takes the most part in the value of CBV of local taxes. The CBV in land had been based on the price of land that was calculated by the land class, but it was changed to the Publicized Individual Land Prices (PILP) in 1996. The CBV of buildings in the past was based in the cost of building construction that was calculated by multiplying the factors of structure, use and location of building to the Standard Value of Newly Constructed Building. However it has been raised continually by many questions that the CBV of buildings calculated by the cost method is not an adequate method to reflect properly the fair market value (FMV). As a result the Publicized Individual Housing Prices (PIHP) reflecting the FMV of the house and its land at the same time was introduced only to housing among buildings in 2005. Yet the CBV on those none housing buildings such as commercial buildings and offices are still calculated by the cost method (CM). Thereforethe commercial buildings used by various purposes but calculated by the simple CM with a large scale have a big difference between the CBV and FMV. As a consequence the CBV calculated by the CM in the commercial buildings and offices has beena main cause of public resentment because the CBV is higher than the FMV. The CBV may not be a proper method to tax those buildings because its value could be different according to the floor location. To reflect the FMV into those buildings, it needs to introduce a mass evaluation method adapted already in the PIHP. It means that the appraiser selects and evaluates in detail the example buildings, and then he or she evaluates other buildings based on the results. In addition, the appraiser needs to reflect the FMV in full using the transaction data accumulated in the market as well as profits and cost data. Even though this evaluation system requires high cost, it may be possible to appraise those buildings fairly and accurately. The every price of real estates must be opened to the public without regard to housing or non housing, and the current CM of CBV on the commercial buildings should be abolished. Furthermore with regard to the decision whether a building is housing or non housing, the taxation should be made according to the real use instead of the inspection results of tax officers or the return of building owners.

Die Gefahrenabwehr als präventiven Polizeigewalt - Im Mittelpunkt des Begriff der Gefahr und die Generalklausel im Polizeirecht -

구형근 | 2009, 44 | pp.331~354 | number of Cited : 8

A Study on the Police Law in South Korea and United States

WON JUNG KIM | 2009, 44 | pp.355~376 | number of Cited : 3

The police law in South Korea and the one in the U.S. do not have same married codes of laws. What is representative as the police law of the U.S. is ‘Stop and Frisk’ That is enforced by the police, whereas the one of South Korea is ‘Police Official Enforcement Law’ regulating police enforcements. Among enforcements of the Korean police law, particularly what could be discussed comparing with the U.S. is ‘Stop and Frisk’ of the Third Amendment of the police official enforcement law. Therefore, this study insighted into ‘Stop and Frisk’ of the both countries, South Korea and the United States. With a different law system each other, the two nations also don't have same grounds on law enforcement. They depend on where placing grounds on. Law enforcements in the U.S. are operated by Federal Amendment Constitution and are active or otherwise according to precedents of the Supreme Court. In other words, Federal Amendment Constitution regulates basic rights and states are held accountable for the other things. ‘Stop and Frisk’ as a dominant operation of the police, however, is subjected to judgements of the Supreme Court and is given legal rights by it. Contrary to that, in the case of South Korea, the police official enforcement law is a directive lawful foundation of the police enforcement. The police department judges only ambiguous conceptions about necessities and contents of judicial regulations and takes into execution. Law court and constitutional court decide whether these kinds of police executions are legitimate or not. Especially, a court of justice usually has a power to decide ‘Stop and Frisk’ according to a period and society of a country. The Supreme court of the U.S. has the last word on ‘Stop and Frisk’, so it considers the enforcements of the police as being fair, or it restraints them. the judges of the Supreme Court have showed active attitudes in accordance with transforming era, while law courts in South Korea perform inactive judgment within the minimum category and the police enforce their officials by using those judges as a consented admission that is limitative, rather than using them as their legal basis. Thus, judgment made by law courts of South Korea are not similar with those of the U.S. because law courts in South Korea have only a right to decide whether present law enforcement is legal or illegal. They uncover inactive and limited attitudes. Comparing the police law of South Korea with that of the U.S. is what does police enforcements of the two countries. Although having different law systems, they share a common purpose : law enforcement must be done to protect basic rights of the people.

Zum Geschichtlichen Verlauf des Parlamentswahlsystems(Ⅰ)

Kim Do-Hyub | 2009, 44 | pp.377~394 | number of Cited : 5

Regulation of Human Embryonic Stem Cell Research by Federal Funding of the U.S. Government

Soohun Park | 2009, 44 | pp.395~416 | number of Cited : 3

The research of human embryonic stem cells(“hES Cells”) has an enormous potential to develope medical treatments for the mankind's most abhorred diseases on one hand. At the same time, it could raise severe ethical concerns by destroying human embryo in the process of creating hES Cell lines on the other hand. Regardless of these contradictory arguments on hES Cells, however, huge amount of money is invested to the research of hES Cells worldwidely in order to get the initiatives in this area as it could be the source of change in the future medical industry. Most of all, federal funding is crucial to the success of hES Cell research in two ways, pragmatically and symbolically. In addition, the government could also increase its control over hES Cell research when in provides federal funding. Therefore, this article explores how the U.S. government has taken steps on funding hES Cell research by examining the policies of it. Part II of this article explains what a hES Cell is, examines the benefits of hES Cell research, and outlines the ethical issues surrounding hES Cell research. Part III explains the importance of federal funding in hES Cell research in three aspects - pragmatic, symbolic, and government's control aspects. Part IV explores the policies of the federal government before President Bush's TV address on August 9, 2001. The establishments and functions of EAB, HERP, and NIH guideline are described here. Part V examines President Bush's TV address on August 9, 2001. The meaning of it, the hES Cell lines that could be the objectives of federal funding, the contents of it, and the drawbacks of it would be considered here. Part VI explores the Executive Order issued by President Obama on March 9, 2009. The meaning of it, the contents of it, and the effects of it would be described here. Finally, Part VII concludes that the changed federal funding policy of the U.S. government by regarding hES Cell treatments as future gold mine of medical industry will also give enormous impacts on the world market of medical industry by funding federal money to hES Cell research. On top of that, I expect that the change of the U.S. policy could give positive effects on korean government's policy of hES Cell research as well.

Issues on Legislation of Personal Information Protection Law in the France

BAEK YUN CHUL | 2009, 44 | pp.417~434 | number of Cited : 0

As technology developed rapidly, the era of E-Government and Ubiquitous has been brought into the real world. Especially, by virtue of the development of telecommunication and internet technology, the effectiveness and convenience of the works (or tasks) has been increased through an E-commerce and On-line service in the industries. On the contrary, the issue of misuse or abuse of personal information has been centralized in the society since there has been increased number of problems related to misuse or abuse of personal information. Thus, many scholars have focused on how to use or control personal information and how much discretion should we allow the authority to handle personal information. Information of individuals in the france: the persons whose personal data are collected must be informed of (1) the compulsory or optional nature of the responses, (2) the consequences of failing to give an answer, (3) the categories of persons or organisations who could eventually have knowledge of the data, and (4) the place where the right of access and rectification may be exercised (Article 2 of the decree of 23 December 1981: failing to give information is punished by a fine of 1 500 €). Reinforced protection of sensitive data : any information which shows, directly or indirectly, racial origins, political, philosophical or religious opinions, trade union membership, or moral principles of the person can only be collected and recorded with the express (written) agreement of the person concerned. As an exception, such data may, for reasons of public interest, be collected on the authorisation of a decree by the Council of State issued on the recommendation of the CNIL (this may be the case for certain police files). Article 226-19 of the Criminal Code sanctions all breach of these provisions by 5 years' imprisonment and a 300 000 € fine. Data protection rights: Every person may contact an organisation directly to find out if he is listed or not by that organisation. Every person may, on simple request addressed to the organisation in question, have free access to all the information concerning him in clear language (any codes must be explained) and obtain a copy against payment of a fee, fixed by the State, of 3 € for the public sector and 4,6 € for the private sector. Every person may ask the CNIL to proceed with checks of the information concerning him which may possibly be recorded in files concerning security of the State, defence, or public security (right of indirect access). The CNIL verifies the relevance, the accuracy and the updating of this information and can demand that it should be rectified or deleted. Every person may contact the CNIL to receive assistance in the exercise of his rights (particularly if his right of access has been denied).

Impact of EU Public Procurement Rules on National Expressway Business In Korea

박신 | 2009, 44 | pp.435~456 | number of Cited : 4

EU Public Procurement Rules are a peculiar symbol of European Procurement Administrative System. A few years ago, EU adopted the new Public Procurement Directive 2004/18 including competitive dialogue and the tender standard. Today, the EU's Public Procurement Rules apply to the Member States. The focus of this paper is the impact of the EU's Procurement Rules upon the National Expressway business in Korea it seems appropriate therefore to give some analysis of what is meant by that regulation in this context. Article of the EU Public Procurement Directives places upon the Member States an obligation to implement the requirements, competitive dialogue and the tender standard, set out in the Directives. Act on Private Participation in Infrastructure in Korea is the general law of Public Private Partnership on Infrastructure. Korea have been building toll roads with the Act on Private Participation in Infrastructure. The applicatory possibility of the competitive dialogue in EU Public procurement directives is expecially an interest in Korea. Because the FTA of Korea and EU have been under way. In this context the legal issues have to be drawn between conflicting objectives, which are recognized in the Act of Private Participation in Infrastructure, namely the need to protect the continuity of toll roads business developed by the pool in which they work and to safeguard the existing regulations, and the need of national expressways to be able to adjust to changing circumstances in order to ensure the prosperity of the highways business in Korea. Some legal issues which exists between the pressures in a situation for change and the legislative protection of the Public Private Partnership Business in Korea appear to be requiring further examination in the relating laws of allowing at least reasonable system for valid reasons.

Eine Studie über die Verwirklichung der tatsächlichen Gleichberechtigung in der Schweiz

Shin, Okju | 2009, 44 | pp.457~474 | number of Cited : 0

Im Vergleich zu anderen Nachbarländern hat Schweiz wenige Interesse für die tatsächliche Gleichberechtigung zwischen Männern und Frauen. Erst 1971 wurde Frauen auf der Bundesebene Wahlrecht gegeben. Es hat sich aber mit der Einführung der Gleichstellung in Art 4 Abs. 2 SV a. F. geändert. Aufgrund dieser Bestimmung ist das Bundesgleichstellungsgesetz verabschiedet. Im Art. 4 Abs. 2 S. 1 a. F. verankert 냐초 die Gleichstellung von Mann und Frau. Im S. 2 vom selben Artikel findet man das Egalisierungsgebot und im S. 3 das Gebot für den gleichen Lohn. Aufgrund dieser verfassungsrechtlichen Bestimmung ist 1995(Inkrfttreten im Jahr 1996) das Bundesgleichstellungsgesetz verabschiedet, um die tatsächliche Gleichberechtigung zwischen Geschlechtern durchzusetzen. Diese Änderung im Hisicht der tatsächlichen Gleichberechtigung verschleunigte sich mit der Verfassungsrevision von 1999, wobei nicht nur der Art 4 Abs. 2 in Art. 8 verlegt wurde, sondern auch der Inhalt der Gleichstellung zwischen Geschlechtern noch präziser geworden ist. Im Jahr 2002 wurde das Bundesgleichstellungsgesetz evaluiert, um zu überprüfen, ob es wirklich zu der Verwirklichung der Geschlechtsgleichheit dient. Nach der Gesetzesfolgenabschätzung wurde es klar, dass es ein gutes Mittel für diesen Zweck ist. Bevor man den Gleichstellungsartikel in SV untersucht, ist es sinnvoll, einen Blick in das schweizerische Politik- und Rechtssystem zu werfen. Denn Schweiz hat eigenartige direkte Demokratie entwickelt. Die Rechtsetzungsverfahren ist auch ganz anderes. Sie zeichnet sich durch direkte Demokratie wie Volksinitiativ, Volksentscheidung, Bundesland und Verhältmässigkeit bei Wahlen aus. Es ist lehrreich für uns, den schweizerischen Gang zur Verwirklichung der Gleichstellung zu untersuchen. Aus der Geschichte von der Schweiz kann man erkennen, dass sie mit der Einführung des Gleichstellungsartkel in die Verfassung begonnen hat. Es ist für uns auch sinnvoll, den Gleichstellungsartkel in koreanische Verfassung einzuführen, um tatsächliche Gleichstellung herzustellen.

A Constitutional Study on the Bridging Digital Divide - Necessity and Policy for Bridging Digital Divide in View of Social State Prinzip-

Hong Seok-han | 2009, 44 | pp.475~498 | number of Cited : 12

This study deals with the Digital Divide from Consitutional point of view. Especially, on the basis of the Social State Principle, this study includes analysis of the Consitutional ground to bridge the Digital Divide, the scope of the responsibility of a State and appropriate method to do. The Social State Principle in Consitution, is founded on social justice, social safety and unification and peace of national community. However, in the Information Society making information and information technology essential for personal and social life, the Digital Divide deprives people of all prior conditions to exercise fundamental rights. Furthermore, it does not mean just a gap of the information possession, causes a vicious circle of social inequality and has the possibility to lead into a social conflict. Therefore, bridging of the Digital Divide should be included in Social State's affairs. On the other hand, when the Social State Principle is realized by State or the legislature, there are some limits to be considered. The State must give a preference to market system and autonomous function and seriously consider the financial pressure. Actually, modern states are faced with financial crisis and criticized with inefficiency of their activities. All things considered, for the States trying to bridge the Digital Divide, it is necessary to closely cooperate with private sector. The Social State's responsibility to bridge the Digital Divide includes ensuring of access to information and using the information technology. The former needs IT infrastructure and supply of computers, the latter requires ICT training programs, developing special accommodations for the handicapped and supply of useful contents. States should frame and carry out policies to cooperate with private sector for the affairs. However, even though it may be entrusted to private sector to perform the affairs, the State must guarantee that the affairs shall be carried out.

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Public Land Law Review 2023 KCI Impact Factor : 1.14

2009, Vol.44, No.