2011, Vol.52, No.

Rechtsabschaetzung und Novellierungsvorschlaege des koreanischen Wasserhaushaltssystems

Hae-Ryoung Kim | 2011, 52 | pp.1~22 | number of Cited : 4

A Study on the National Land Planning Acts

Kim,Hee-Gon | 2011, 52 | pp.23~70 | number of Cited : 14

Korean Constitution provides, the property right of all citizens shall be guaranteed and the exercise of it shall conform to the public welfare(Article 23). It provides, the economic order of the Republic of Korea shall be based on a respect for the freedom and creative initiative of enterprises and individuals in economic affairs(Article 119 Clause 1). The State may regulate and coordinate economic affairs in order to maintain the balanced growth and stability of the national economy, to ensure proper distribution of income, to prevent the domination of the market and the abuse of economic power and to democratize the economy through harmony among the economic agents(Article 119 Clause 2). National Land is considered as a source of all products that are necessary for all citizens of a nation in the present and future. It have several special characteristics, for example unproductivity, irreplaceability, immobility, indestructibility, heterogenity, connectivity, modification etc. But it may be said that appearance of national scaled land planning had been made at (the beginning of) 20 century in order to develop and use limited national land in an effective, systematic method. Korean Constitution provides, the land and natural resources shall be protected by the State, and the State shall establish a plan necessary for their balanced development and utilization(Article 120 Clause 2). Therefore, the State has established many acts about National Land Planning and Development. Especially, National Land Planning and Development Acts has been improved markedly at the beginning of 2000. For example, Framework Act on the National Land(2002), National Land Planning and Utilization Act(2002), Framework Act on the Regulation of Land Use(2005) etc. But our present Acts about National Land Planning and Development have several problems inspite of a few estimatable points. For example, problems in legal system, plan system and system management etc. This paper is focused as follows :Ⅰ. Introduction Ⅱ. Constitutional basis and history of National Land Planning and Development Acts Ⅲ. System and contents of National Land Planning and Development Acts Ⅳ. Review of National Land Planning and Development Acts Ⅴ. Conclusion

A Study on Improvement Permission System of the Forest Land Use Conversion

Kim Myung Yeop | 2011, 52 | pp.71~92 | number of Cited : 7

As people live in comfortable in 21th century, the demand for houses and rest areas where a pleasant environment is provided is growing. Forest resources as environmental resources can be subdivided into the functions of land preservation and the form of land. Korea is a small country in size and 2/3 of Korean territory consists of mountain areas so in terms of land resources, how to utilize mountain areas is very important. Due to the continuous economic development plan for the last 40 years, population and industry have entered to metropolitan areas. Under the present forest land use system, there is all the difference of land price between the forests for conservation and development. In consequence it could be resulted that the reserved forests lower than semi-reserved forests in the price are increased into utilization for another purpose. There is necessary that the forest land use system must be made out a map of the forest land classification on the ground of the appreciation of various functions, considering the site environment and social and economic condition for the effective use of forest land related to the characteristics of region. To prevent potential errors within the classification process, the areas that were classified as non-mountainous districts by the current forest types were removed. The solution in the matter of simplifying the procedure of using mountain areas and development system is that allowing only one regulation to have an effect on the mountain areas when that areas are regulated by many regulations. Consideration should be given to an exceptional case that any facility of public benefit profitable to forest should be allowed to be set up along the slope of 25 degree or up. Restriction to neighboring area development should be tenttive at the most of and private property should not be placed under undue restriction by local authority. The result of prior thesis indicated that the standards related to the connection development restriction and the height of the first berm were underrated in most of evaluation factors. The land use conversion also have a low propriety or applicability due to their vagueness. evaluation fators considered in this study seems to be effective to verify the problems of forest land use conversion.

Evaluation of legislation for land-related laws - The preliminary plan for legislative evaluation to ensure the rationality of land-related laws -

차현숙 | 2011, 52 | pp.93~114 | number of Cited : 1

According to the changing times, the legal issues related to land, the grounds of human life and major economic foundations, have varied, and subsequent legal rules have been changed in various ways. Because land has become the object of private ownership and at the same time the public goods as a finite resource, legal rules related to land have been various. Land-related laws, such as Framework Act on the National Land, National Land Planning and Utilization Act, and etc., prescribe regulations for balanced use and development, and the forms of regulations are different, depending on the type and use of land. The law which makes provision for land is appearing in many types, such as regulations on land ownership restrictions, regulations on development and maintenance of national land, land use planning-related regulations, land development-related regulations, land conservation-related regulations, restitution of development gains-related regulations, and etc. Legislation related to land which regulates land use activities by about 116 Acts, classifying the zoning and the lack of consistency of restrictions, appears constraining the lives of people and scientific policy making is difficult because of the lack of land-related information collection and management, and statutory administrative issues are appearing. Therefore, it needs the comprehensive and systematic reviewing and analyzing legislation related to land, and this review and analysis using legislation evaluation, recently introduced and actively engaged in discussions, seem to be done. However, considering the wide and diversity of land-related laws, maintenance of land-related laws will be possible with experts in the field of individual laws evaluating legislation. Hereafter, it needs constant attention in terms of “Korea Public Land Law Association”.

Research on Task of officially notified/announced land price & Certification System of Real Estate Appraisers in Korea

Heo, Kang Moo | 2011, 52 | pp.115~140 | number of Cited : 9

More than 20 years has passed since the officially notified/announced land price and certification system of real estate appraisers were introduced as a part of public concept of land, and recently, these have been at a turning point. It is generally evaluated that the officially notified/announced land price and certification system of real estate appraisers have achieved the outcome such as efficient implementation of stability in land price and public services up to the present. On the contrary, the environmental change in the appraisal & assessment market and controversy over the fairness of appraisal & assessment are the further task for the government and appraisal & assessment agencies to solve. This research is aimed at looking at the background for the introduction & structure of the system of officially notified/announced land price & certification of real estate appraisers, also taking a focused look at the above mentioned systems in outline, and proposing its improvement plan. In Chapter Two, this research takes a look at the background for the introduction of officially notified land price system and its examination system ; in Chapter Three, this research arranges the transition and structure of the certification system of real estate appraisers; and in Chapter Four, this research is going to propose the further task in relation with the system of officially notified/announced land price and certification system of real estate appraisers. It's necessary that the system of officially notified land price should be continuously supplemented and developed in the direction of enhancing adequacy and objectivity. In addition, it's also necessary to have a long-term insight into the way of contributing to stabilization and wholesomeness of the real estate market in the midst of the transition of economic system. Lastly, it's necessary that there should be an improvement in system centering on enactment of <the law on certification system of real estate appraisers>, improvement in the training of real estate appraisers & their training system, clarification of the business scope of real estate appraisers consequent upon the introduction of international accounting standards, increase in the consciousness of ethics of real estate appraisers, and intensification of the guaranty system of liability insurance for damages in order for the system of the certification system of real estate appraiser to make an immediate reaction to the demands of the people who are the consumers of appraisal & assessment service, and for the appraisal & assessment agencies to make a solid development.

A Legal Review on the Variation of Land Parcel Area in Cadastral Resurvey Project

Hyun-Joon Lee | 2011, 52 | pp.141~158 | number of Cited : 15

Legal Ground and Realization of Land Banking Undertaking

Jeong Kuk Won | 2011, 52 | pp.159~182 | number of Cited : 1

Land Banking System' refers to the system in which the government or public institute directly participates in the land market and purchases/reserves the land prior to the occurrence of speculative transactions or other public transactions in order to supply it when the speculative demands arise with the purpose of developing public lots and controlling demand and supply. This is a new method to acquire the land according to the market function, which is deviated from the regulation-oriented policy by governmental intervention in land market. The land banking system has a few of advantages as follows: first, it can save the lot compensation cost; second, it can prevent privatization of the development profits; third, it can increase the market's control function in the public area (government). Korean constitution has the ground rules for land banking system which can play abovementioned roles. The ground rules include the reservation of law in the postface of Article 23, Section 1 of the constitution; obligation of exercising property rights in compliance with public welfare in Article 23, Section 2 of the constitution; expropriation, use and restriction of property rights required for public needs in Article 23, Section 3 of the constitution; social market economy order in Article 119, Section 2 of the constitution; obligations and restrictions required for use, effective and balanced development and preservation of the national land in Article 122 of the constitution. Although the land banking system legislated by the constitution takes land banking, land selling in advance system and land expropriation as its legal means for acquisition, it has another advantage to reduce the conflicts with the land owners in that it acquires the land by means of purchase in principle. For the success of this land banking system, it should be a long-term project and its purpose should be general one. Its scale should be also large as possible as it can be. The issue in fulfilling such requirements is that a large amount of financial resource should be spent. Given the expenditure of national finance should be based on balance and growth, it is necessary to approach to the land banking project from the perspective of financing at a national level.

Research on Legal Systemization Method for Efficient use of National Land

lee jae sam | 2011, 52 | pp.183~214 | number of Cited : 7

In order for efficient land management system that includes land use․development, control, conservation of national land, and informationalization of land, flexible land supply system should be prepared. Thus, problems or maintenance and improvement direction on laws relevant to national land can be summarized as following:First, efficiency of laws is improved through maintenance․systemization of laws relevant to land. In the long-term, reorganize current laws and review the introduction of new laws. Integrated law system should be established by considering national land conditions and basic concept system on use․development․management․control, information of land. Second, plan for national land should be systemized and policy should be executed as a systematic device for adjusting laws on plan for national land. And efficiency of land focused on consumers should be guaranteed by the active participation of residents in each region when establishing and executing plan for national land. Third, Balanced national land development should be synthetic and detailed by maximizing the development potential and regional features, prepare possible systematic device, and improve the overall national competitiveness with execution of regional development program. Fourth, Policy for environment-friendly land management needs to be introduced, mutual unification through integration of policies between different departments should be secured, and efficiency should be increased. And national land environment information network system is required to establish․execute scientific national land policy and to provide people with information. Fifth, realistically, efficient use of land is by promising self-imposed use of land rather than compulsive regulation, system and policy that agree with both the fundamental purpose of efficient use of national land and self-imposed use of individual land property right are necessary. Sixth, National land information law system is essential to establish a system that suggest a logical solution that responds to national land policy by ultimately actualize digitally integrated national land with integration․connection of national land information on laws. And by applying the present national land informationalization program to cyber national land, higher-level demands on national land information from public and private sectors are satisfied. Seventh, internet registration service is yet to be general. Thus, national service policy on internet registration electronic application of the Supreme Court should be settled early. In other words, internet registration service should be settled by quickly improving problems on human and material resources. Especially, informationalization of national land should provide active land use service to the public and efficiently use land by utilizing integrated national land information system or land information system with introduction of the network that connects separated national land information. Thus, it is recommended that national In conclusion, national land informationalization law system and its operation, in connection with land use, plan, management, development, environment, regulation, and information, should maintain consistency of national land information and provide integrated national land information service focused on consumers.

Rechtliche Qualifizierung von Emissionsberechtigungen und rechtsoplitische Aufgabe der Emissionszuteilung

Sung-Soo Kim | 2011, 52 | pp.215~238 | number of Cited : 18

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Mittlerweile bestehen weltweit weniger ernsthafte Zweifel daran, dass der Klimawandel eine der größten Herausforderungen in der menschlichen Geschichte ist und dass der Schlüssel zu einer erfolgreichen Kilmaschutzmaßnahme in der Reduktion der Treibhausgasemissionen liegt. Dafür hat der koreanische Gesezgeber ‘das Rahmengesetz für niedrigen Kohlenstoff und grünes Wachstum’; Das Grüne Wachstumsgesetz, GWG; Framework Act on Low Carbon, (Green Growth) verabschiedet, das am 14.04. 2010 in Kraft trat. Nach § 46 Abs. 1 GWG wurde als eine Strategie für die Grünentwicklung das Treibhausgas-Emissionshandelssystem eingeführt, damit der Staat mit den Marktmechanismen die Treibhausgasreduktion effektiv erzielen kann. Entscheidende Bedeutung hat im Hinblick auf die Einführung des Treibhausgas-Emissionshandelssystems der § 46 Abs. 4 GWG, wonach die Zuteilungsmethode, Eintragung, Überwachung, Berichterstattung und die Errichtung bzw. der Betrieb der Treibhausgas-Emissionshandelsstelle durch ein Gesetz (Zuteilungsgesetz) geregelt werden. Bei der Erfüllung der rechtspolitischen Aufgabe zum Zuteilungsgesetz hat der Gesetzgeber nach der Wesentlichkeitstheorie alle wesentlichen Regelungen, einschließlich der Abgabenpflicht von zertifizierten Emissionsreduktionen selbst zu treffen, die insbesondere mit der Ausübung oder Verwirklichung der Berufs- und Eigentumsfreiheit der Anlagenbetreiber in einem unmittelbaren Zusammenhang steht. Die Einführung des Emissionshandelssystems stellt in Bezug auf bestehende Anlagen eine Inhalts- und Schrankenbestimmung im Sinne des Art.2 3 Abs. 1 S. 2 der koreanischen Verfassung und in Bezug auf künftige Neuanlagen als eine Berufsausübungsbeschränkung im Sinne des Art. 15 der koreanischen Verfassung dar, wobei es der Verh?ltnismäßigkeitsprüfung in vollen Umfang standhalten muss. Der eigentumsrechtliche Charakter von Emissionsberechtigungen ist um ihrer selbst willen zwar grundsätzlich zu verneinen. Etwas anders gilt aber, wenn sie aus Eigenleistung wie Versteigerung und sonstigen entgeltlichen Zuteilungen resultieren und sich dem Privatrecht entsprechend auf dem Markt als handelsfähig darstellen. Die Frage, ob die Zuteilung unentgeltlich oder entgeltlich erfolgt, bezieht sich nicht nur auf die rechtspolitische Aufgabe, sondern vielmehr auf die politische Entscheidung. Deshalb wäre die Einführung eines entgeltlichen Zuteilungssystems nur stufenweise zu bevorzugen und besonders in der Anfangsphase nicht akzeptabel. Die entgeltliche Zuteilung der Emissionsberechtigungen ist sowohl als eine Vorteilsabschöpfungsabgabe, als auch als eine Lenkungssonderabgabe zu qualifizieren.

Rechtsnatur der behördlichen Bekanntgaben (Gosi) und Rechtsschutz

Song Dongsoo | 2011, 52 | pp.239~268 | number of Cited : 19

A Critical Review of Personal Information Protection Act Revision

KIM, IL HWAN | 2011, 52 | pp.269~294 | number of Cited : 23

There is a movement that establishment of personal information protection law again under Lee Myung-bak's administration. In this instance, disputed points settled as quickly as possible and desirable bills are drafted. Because Established discussion for the legislation of personal information protection law was already repeated several times. This study shows that the bill contains key issues of personal information protection under debate until now. We can evaluate it is a great step forward. Because the bill contain material of highly diverse for the minimization of people's damage by leaking personal information and the protection of right to decision of personal information in the information society. By establishing personal information protection act, the perpetual dangers of personal information leaks will be decreased. So that it is expected that it could contribute to the steady development of personal information industry. Meanwhile, the status and the role of personal information protection organization amounted to nothing at all in the process of the personal information. But a bill hasn't passed yet because of the status and the role of personal information protection organization that has not gone uncontested before. Ultimately, the committee of personal information protection prescribed on a alternative lacks theses things like the independence and powers of personal information protection organization compared to international standards and earlier discussion at level in the meantime. I think that the committee according to the alternative in this situation is not only disorganized but also inconsistent. so that this committee will not do an adequate role as the independent organization. Therefore I think that the alternative of personal information protection law demands systematization, disambiguation and rearrangement.

A Study on the traceability system of the protection ofthe personal information in Korea

Jeong-Hun Park | 2011, 52 | pp.295~328 | number of Cited : 12

Comparative legal study on Communications interception law in the U.S and South Korea

나채준 | 2011, 52 | pp.329~356 | number of Cited : 8

A study on the Residential Welfare Facility for the Aged

Jang Kyo-Sik , seon eun ae | 2011, 52 | pp.357~382 | number of Cited : 6

The aged people who have contributed to national and social development and the cultivation of their posterity are those who should be respected by them and live a stable life. The number of the aged population is rapidly increasing with the increase of the average life due to the development of medical technologies, the problem of the population structure induced by low birth rate and the like. The increase of the aged population has caused several social problems, of which they have a limit of income in economic terms. And the residential welfare facility for the aged has come to a forefront because they can live a single life due to their old age. With the increase of residential welfare facilities for the aged due to the increase of the aged population and the increase of institutionalized old people, the violation of the rights of old residents in the residential welfare facility and the improvement of their welfare have come to a forefront as a social problem. Accordingly, this study attempts to investigate the problem of management and supervision of the residential welfare facility and the aged and the possibility and present situation of the violation of rights of the old people residing in the facility. And it attempts to present a direction for the protection of rights of old people residing in the residential welfare facility for the aged and the improvement of their welfare through legal and institutional analysis related to this. In Korea, national government and local government have a duty of managing and supervising residential welfare facilities for the aged. So the service delivery system is not efficient due to its top-down vertical structure. And there is no agency in charge of residential welfare facilities for the aged in a systematic and independent way. Accordingly, ex post factor relief, not prior relief, is made possible for the violation of rights of old people residing in the residential welfare facility for the aged. Accordingly, to protect the rights of old people residing in the residential welfare facility for the aged and improve their welfare, the Ministry of Health and Welfare, the administrative agency of national government, should present the basic policy or program of the vertical service delivery system and provide administrative supervision and financial support for it. And local government should provide efficient service for them with autonomous authority. And it is necessary to establish the agency which can be in charge of the residential welfare facility for the aged in an independent way as it is managed and supervised by different agencies. And it is necessary to introduce the Ombudsman system making its prior relief possible in relation to the violation of rights of old people residing in the facility. And it is necessary to organize the private body exclusively in charge of residential welfare facilities for the aged and introduce the service quality evaluation system through the third party.

The Necessity and Structural Framework of Tentative Draft of “Act on Housing Welfare”

Gyeongsu Yeo | 2011, 52 | pp.383~402 | number of Cited : 10

Everyone shares the right to a decent standard of living. Essential to the achievement of this standard and therefore to the fulfillment of human lie beyond simple survival is access to adequate housing. The right to housing codified as a human right in the Universal Declaration of Human Rights. And The right to housing is included in several international legally-binding documents such as UN-Habitat and UN Housing Rights Programme,Increase in the housing supply ratio through mass housing construction has long been the prime object of housing policy in Korea as housing shortage was regarded as the main element of housing problem. The government enacted the Housing Construction Promotion Law (HCPL) in 1972 in order to promote housing construction. The HCPL has since then served as the organic law of housing in Korea. It prescribes on simplified legal procedures and financial assistance to promote housing development, and the inspection of construction works and the standardization of building elements to help heighten construction quality and productivity. And, new topics such as the harmony of development and environmental protection have become important policy issues. Moreover, the situation of those who are unable to afford appropriate housing on the market has been aggravated relative to the aggregate improvement in housing conditions. Many families are still living in houses that do not meet the minimum standards. How to provide appropriate housing for those in housing poverty and how to enhance the housing standards of those living in substandard housing are thus becoming the main concern of housing policy. Korea has the constitution and national laws that promote the progressive realization of the right to adequate housing. In Korea legal protection of the right to housing at the national level often involve arbitrary eviction, safety and health regulations, or equal protection issues. The housing policy should be oriented around securing the right to housing and the affordability of housing, particularly for the underprivileged groups.

A Legal Study on Quantity Regulation System of Water-quality Pollutants

LEE SOONJA | 2011, 52 | pp.403~424 | number of Cited : 2

A Legal Review on The Government Committee

Kim, Dong-Ryun | 2011, 52 | pp.425~444 | number of Cited : 11

The various administrative committees that have been established and operated within the government are not consistent with the principle of the governmental structure set forth in and sought by the Constitution. Moreover, either they have no legal basis, or the legal basis is sometimes poor. Accordingly, the Act on the Establishment and Management of Councils, Commissions, and Committees under Administrative Agencies (“Administrative Committee Act”) was enacted in 2009. Note, however, that the Administrative Committee Act was implemented less than a year ago, and the administrative committees are still not better understood. Furthermore, several inconsistencies were found between the Administrative Committee Act and other acts and general rules such as the “Government Organization Act” and the “General Rule on the organization and fixed number of administrative agencies.”Therefore, this paper shall deal with several problems of government committees. First, according to the Ministry of Public Administration and Security, government committees are divided into administrative committee, advisory committee, and decision committee. Note, however, that the Administrative Committee Act does not clearly stipulate such classification as used by the ministry. Second, there is a need to create a legal basis for the rearrangement of the overlapping committees that were established in the past. Regulations for the committees are mostly set forth by the acts concerned; therefore, uniform rearrangement seems impossible under the circumstances. Third, the committee members' term of office is defined and provided, but there is no definite regulation as to their consecutive reappointment. The regulation needs to mention, as a minimum, that the members may be consecutively reappointed. Finally, a supervisory system needs to be established to monitor the activities of the committees. Under the current law, there is no organization or committee that can watch and monitor the activities of the committees. The law only contains the provision that says the activities of the committees may be reported or supervised, but the supervisory agency or committee that can watch and monitor the administrative committees periodically or occasionally needs to be established.

The Strengthening Plan of Web Access Right for the Disabled in Cyber University - Access Right for the Disabled in the Constitution -

CHAE HYUN TAK , BAEK YUN CHUL , 김한양 | 2011, 52 | pp.445~462 | number of Cited : 2

A Study on the Legal Standard and future-oriented Deliberation Policy of Broadcasting Program Formation

지성우 | 2011, 52 | pp.463~488 | number of Cited : 6

Constitutional Review on the Regal Controls of Insurance Distress andContract Rescission

Kwon youngbok | 2011, 52 | pp.489~516 | number of Cited : 0

Modern society is called the risk society. Social insurance systems are being implemented to prepare for various risk. But it is impossibility that we cope with the risk of disease and disaster perfectly by that system, due to the country's financial problems, legislative vices and inefficient operation. Many people recognize the limits of the social insurance system and protect themselves and take care of their family by private insurance. But it is increasing that creditors including financial institutions and tax authorities of the country attach the insurance of debtors and delinquents and cancel their insurance contracts. The question is people living in poverty and disease or disaster be faced with economic difficulties and be threatened with their health, right to life and the right to live. To policyholders and their families facing economic difficulties, insurance has the meaning as last resort for ensuring their own safety and survival of at least. Nevertheless, the Supreme Court and the Constitutional Court judged that creditors and the enforcement of tax organs may attach obligor’s insurance and cancel insurance contract without limitation. However, if we consider the fact that the Constitution guarantee human dignity and worth, the obligation of States to protect fundamental rights, the pursuit of happiness and the right to health, the state should consider rights and welfare for debtors and their families threatened with economic deprivation and the risk of illness or disaster along with the property rights of creditors through legislative or judicial action. Current law stipulates the limitation of the seizure only to the post office insurance claims, but does not have protection regulations provisions for private insurance. Because the government has the duty to protect constitutional rights, the government should protect health and livelihood for debtors and their families. The government has to regulate that coverage insurance is distressed and insurance Contract is canceled by amending Insurance Act, in order to protect themselves and their families from disease and disaster.

Entscheidungstendenz von EuGH über die Nichtsdiskriminierung

은숭표 | 2011, 52 | pp.517~532 | number of Cited : 2

Verfassungskonformes Juristenausbildungssystem und Verhältnismäßigkeitsprinzip

Jaeman YUN | 2011, 52 | pp.533~558 | number of Cited : 0

The Review on the Ordinance Regarding Students' Human Rights

JOUNG YOUN BOO | 2011, 52 | pp.559~588 | number of Cited : 11

There are strong arguments for the prohibition of corporal punishment in schools. Gyeonggi-Do has legislated “The Gyeonggi-Do Ordinance on students' human rights”. Other provincial governments such as Chungnam, Gangwon, Gwangju, Jeju-Do as well as Seoul are also trying to enact an ordinance which forbids corporal punishment in schools. The preceding studies regarding corporal punishment is mainly focused on problems of pedagogy or criminal law. It is certain that corporal punishment has many problems related to pedagogy or criminal law. In addition to these problems, corporal punishment needs to be researched from the view of public law. Now, some of the proponents who are superintendents of education or members of the board of education are trying to prohibit corporal punishment by enacting a municipal ordinance. Therefore, the limits of the ordinance are asked to be studied. This study analyzed “The Gyeonggi-Do Ordinance on students' human rights”, finding what kind of suits are available and applying ‘the principle of legal administration’. This study reviewed ‘the suit on unconstitutional or illegal administrative decrees, regulations’. It also looked at ‘the administrative appeal’ and ‘the constitutional petition’ as the means of procedural laws. This study supports a theory which construes the objects of the administrative appeal on delegated legislations in a limited sense. Supporting the theory is a result of considering prerequisites for the constitutional petition. Korean constitutional act has two requirements to suppress cases of the constitutional petition. First, it excludes the judgments from courts. Second, if any procedures of remedies are available by other laws, no one shall request without having taken all these procedures. This study regards ‘the executively delegated legislation’ as an object of the constitutional petition. The executively delegated legislation does not have any articles regarding a specified person or case. It could infringe on people's rights without administrative functions in some cases. “The Gyeonggi-Do Ordinance on students' human rights” is a municipal ordinance. Therefore this study examines the limits of legislative power belonging to a local autonomy. This study agrees with the theory which insists that a principle - only the acts of congress can restrict people's rights - does not belong to ‘the principle of legal administration’. This study sees the essence of a principle - the national decisions that take the form of the act are more superior than other forms ― as a problem of compatibility. The specific standards for compatibility are ‘purpose’ and ‘object’. If a municipal ordinance infringes on people's rights, the compatibility of municipal ordinance with acts cannot be accepted in principle. However if the municipal ordinance was entrusted with legislative power by the acts, it could be exceptionally compatible with them. At this time, comprehensive entrustment is enough as a degree of entrustment. Finally, this study expresses that it is difficult to find any problems in “The Gyeonggi-Do Ordinance on students' human rights” after applying the above opinions.

A Public Law Review on Issues in the Permit of Outdoor assembly in the night

Lee Young Woo , 신평우 | 2011, 52 | pp.589~606 | number of Cited : 2

Our Constitutional Court already found that the above-mentioned Article 10 of the law on the assembly and demonstration is an exceptional clause under a special circumstance such as outdoor assembly and demonstration under the sunset and so it corresponds to the Constitution by a judgement of 91 Heonba 14. However, the judgement of 2008 Chogi 2418 decide to request the Constitution Court to rule as to whether it is constitutional or not by judging that the Article 10 of the law on the assembly and demonstration prescribes the permission system in the night in time and on outdoor assemblies in place because “permission” means that it prohibits human's free behaviors in advance and, on demand, discharge general prohibitions where they are qualified under the certain circumstance. Our Constitutional Court officially adopted in the judgment of 2008 Heanga 25 that the above-mentioned provision of the law on assembly and demonstration does not correspond to the Constitution because the number of five persons do not meet the quorum as to whether it is unconstitutional or not even though the majority of five members determined that it is simply unconstitutional such provision violates the prohibition of the permission system as indicated above. This means that the Article 10 of the law on the assembly and demonstration an excessive legislature violating the minimal possibility of infringement and equitable profit in law even though I cannot judge that it prescribes the permission system. The governance by the current Constitution over the freedom of assembly shall be a ground and limitation of legislature limiting basic rights. The freedom of assembly has duals functions of a factor of the revelation of an individual and a component of democratic and basic order in our society. The freedom of assembly has essence of a strong relationship with others as a factor of inevitable concept and also has a political function of the realization of democracy through the formation of political intentions by a few. This is a distinctive point that can be distinguished from legislative examples that reserve the possibility of broad limitation on the outdoor assembly in the Constitution in itself.

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2011, Vol.52, No.