2015, Vol.69, No.

A Study on the Effective application plan of Farmland in the Urban Area

Choi, In Ho | 2015, 69 | pp.1~20 | number of Cited : 2

The categorization of cityplan and establishment of its concept

최종권 | 2015, 69 | pp.21~42 | number of Cited : 2

A study on the taxation of capital gains from real estates for public work

KIM, NAM WOOK | 2015, 69 | pp.43~72 | number of Cited : 4

State, local governments and private organizations are required to supply the smooth and efficient land for the public works such as road, port, housing site construction, cultural facilities and industrial park. Reasonable compensation of land acquisition by agreement or land expropriation according to Art. 23, Sec. 3 of the Constitution and individual laws including Land Compensation Act. As buying by agreement and expropriation for public use of real estates for public works by a project operator belongs to value transfer, transfer income taxation is made on income tax law. But, since acquisition by agreement or forced expropriation are done by contract on public law regardless of land owners' opinions, taxation support for transfer income tax except loss payment has been made from the perspective of tax policy. Although public services by state and local governments have been extensively progressed, buying by agreement has been reduced due to the complain of loss payment for land owners and efficient security of land for public services has been hindered due to the increase of land expropriation. In addition, real estates near public service site may be the speculation object through huge loss payment. Therefore, as effective tax policy system related to the transfer of real estates for public services is required, legal problems of special provisions on taxation from income tax law and special taxation law should be examined. This study examined legal principle and system of transfer income tax of real estates for public services, reviewed limitation of legislator's orientation on special provisions on taxation from transfer income, strengthening of requirements of special provisions on taxation of real estates speculation, agreement of taxation justice of special provision on taxation for transfer income tax of real estates in limited development district, rationalization problem of sunset system of special provisions on taxation of transfer income from public expropriation, and legal improvement of transfer timing in exercising right of repurchase after land expropriation, and suggested improvement methods of these problems to guarantee the property right of rewarded people as well as to realize principle of fair taxation and taxation justice and ensure real estates for public services.

A Study on the Enforcement Fine - focused on making a general law for Enforcement Fine

Lee, Dong-Chan | 2015, 69 | pp.73~89 | number of Cited : 4

A Study on Scope of Personal Information and Its Use

조정은 | 2015, 69 | pp.91~116 | number of Cited : 1

In Smart era, Internet and SNS have become an indispensable part of our lives. 'Big Data' has also become more important since large volumes of data are analyzed and used every days. Thus, many countries of the world are driving forward the big data strategy, and Korea strives for enhancement of national competitiveness based on big data as well. Unfortunately, there is a high potential risk of privacy violation in the era of big data. Accordingly, personal information protection faces a major turning point, and there is a vigorous discussion in terms of a new concept of personally identifiable information in both EU and the United States. It is absolutely necessary to figure out which information is personal data since personal data is a central concept in personal information protection. Simply, redefining the concept of personal data is required in order to fit for change of paradigm. Therefore, this essay analyzes and studies the approach ways to the concept of personal information in the United States and EU for important implications. Based on it, this essay considers legal issues concerning definition of personal data in current legislation in terms of personal information protection. Ultimately, the essay suggests both improvement direction about the concept of personal information and safe way to use of personal data. It is important to protect the rights to privacy of 'data subject' and to ensure activities of 'data processor' since big data is ineluctable worldwide trend. Thus, it is necessary to establish the concept of personal data that reflects the feature of big data. Clear criterion regarding Personally Identifiable Information(PII) should be set up for it. In addition, the degree of protection should be different depends on the type of personal data in order to use personal data. Development of Technology has been increasing possibility of privacy infringement, but also enhancing chance of safe use of personal data. Hence, we need a balance between protection and use of personal data for it.

Legislative Review and Improvement of Official Information Disclosure Act – Focused on the Global Right to Information Rating -

Im, Hyun , Da-Eun Chong | 2015, 69 | pp.117~150 | number of Cited : 3

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A Study of the distinct problem between order and rule in U.S. administrative law system

황의관 | 2015, 69 | pp.151~183 | number of Cited : 1

There are significant issues that classify administrative action according to the attributions of their nature in administrative law theory and legislation. There are so much differences between the individualized, concreted agency determination and the generalized, abstracted agency determination in the legal effect and the litigation instrument. As a threshold matter, the U.S. Constitution’s guarantee of procedural due process applies to administrative agencies only when they adjudicate. So it is important problem that distinguish between agency rulemaking and adjudication process. This central principle of administrative law is to be found in two decisions by the United States Supreme Court early in the twentieth century-Londoner v. City and County of Denver and Bi-Metallic Investment Co. v. State Board of Equalization. The purpose of this article is to research and analyze the criteria for distinguishing between agency rule and order at those case’s opinions. This article is also to review the current administrative theory and judicial opinions that relate to the standard of distinct for between administrative act and administrative legislative instrument. First of all, this paper researches the APA’s definitions of rule and order, reviews the problem that those APA’s provision has. Additionally, this paper researches the Fifth and Fourteenth Amendments to the United States Constitution, so called due process clause, analyze the scope of those clauses’s application. Secondly, this article studies the Court’s opinion founded at Londoner/Bi-Metallic cases and analyzes the meaning of Court’s criteria, clarifies the standard’s elements and the nature of those factors. And this article researches another theory and judicial opinion related to the standard of distinct for distinguishing between agency rulemaking and adjudication. Finally, with the results of stated studies and analysis, this paper reviews the administrative law theory of the standard of distinct for distinguishing between administrative act(i.e. current legal term ‘disposition’) and administrative rule. Through this reviewing process, this paper identifies the blank space of the current existing theory and judicial precedent and makes up for those gabs.

A review on claims of U.S Armed Forces based on Facilities and Areas and the Status of U.S Armed Forces in Korea

WON JUNG KIM , Yang Cheol-Ho | 2015, 69 | pp.185~205 | number of Cited : 0

A Comprehensive Interpretation of the Object of Lawsuit on the Litigation for Withdrawal

Choi, Sung-Sik | 2015, 69 | pp.207~229 | number of Cited : 4

A precedent and a common view regarding the object of a lawsuit in the existing litigation for withdrawal were ‘the general illegality of disposition,’ and with this premise, various legal issues have been discussed. This study was based on such a common view, but looked into the elements that specify the object of a lawsuit concretely in the litigation for withdrawal. The areas disputed in a deep relation to the subject matter of a lawsuit theory include the addition or alteration of grounds for an administrative act and the legal nature of the binding effect, and this is because there have been just a few pieces of literature that discusses systematically based on the subject matter of a lawsuit theory until now. Thus, this study used the concept of the object of a lawsuit that provides a uniform principle of law in the legal procedure law to attempt uniform approaches to various issues in the litigation for withdrawal. First, the precedent has long decided its own standards concerning the addition or alteration of grounds for an administrative act, and the reason for the restriction of changes in them was the substantial rule of law and the substantive legal demand for the security of the people's trust in the administration. of course, it is necessary to limit the addition or alteration of grounds for an administrative act as a means of realizing this substantive legal value, but the value of one-off solution of the dispute in the legal procedure law is an idea as important as that, so the validity of this precedent should be fundamentally reconsidered. Moreover, the Administration Litigation Act provides a rule of the binding effect on a substantive law separate from the rules of the res judicata effect on the Civil Procedure Code. Thus, it is necessary to examine what differences there are between the binding effect and the res judicata effect. The range of the binding effect or the res judicata effect can be clarified through an analysis of these differences because they form a relationship of an ambivalent nature with the issue of one-off solution of a dispute, a request on the legal procedure law after all. Approaches to this issue may vary, but this study attempted to approach the essence of the issue by further concretizing the specific elements of the object of a lawsuit in the litigation for withdrawal based on the subject matter of a lawsuit theory.

Reappointment Disapproval of the University(College) Faculty and Legal Remedy

Jae-Ho Kim | 2015, 69 | pp.231~269 | number of Cited : 1

Zur Obdachlosgikeit als ein polizeirechtliches Problem - Eine schwerpunktmässige Untersuchung über deutsches Polizeirecht -

Ryu Ji Woong , JUNGIL CHOI | 2015, 69 | pp.271~301 | number of Cited : 1

Legal Issues relating to the Integration Possibility of the Infant Care Act and the Early Childhood Education Act in Korea

Namchul Chung , Chung Shunah | 2015, 69 | pp.303~328 | number of Cited : 4

Today, poor management of licensed child care facilities and nursery teachers, child abuse, such as an imbalance of free child care and free early childhood education have become a social problem. In addition, legislation on child and youth has the overlapped and inconsistent definitions. The child care and the early childhood education are dual, and this dispersion of supervision has resulted in administrative inefficiencies. Qualifications of preschool teachers and child care teachers have also been dual in Korea. When the supervision over the qualifications of teachers is insufficient, there is also concern for lowering the quality of education. In addition, because of the worsening finances of local government in recent years the so-called Nuri education process has been stopped in some of the local governments. If such support is discontinued for free child care, the equality of free child (infant) care for the free early childhood education can be a problem. The integration of early childhood education and child care is being discussed in these reasons. This has to be considered in relation to the phased integration plan. First of all the criteria for kindergarten and day care facilities is standardized so that there is a need to improve the environment of the early childhood education and the infant care. The integration of education programs through the operation of the Nuri education process should be made. The issue of welfare funds presented from the operation of the free courses is a very serious obstacle. This problem is a very important issue in relation to the welfare of the state; to this social deliberative is required. One of the most difficult tasks is to integrate qualified kindergarten teachers and nursery teachers. In this case it is necessary to adjust upwards the qualifications of teachers and should supplement the provisions and procedures which also acquire such qualifications. Finally, the integration of the competent ministries on child and youth policy is necessary. Encompassing both administrative agencies may be newly established or be considered ways to integrate the child policy to the existing Ministry of Gender Equality and Family Affairs which oversee the juvenile policy.

Eine Studie über dem Steuerrechtsgrundsatz der präventiven polizeilichen Informationserhebung für deutsche Polizeirecht

Gu hyung keun | 2015, 69 | pp.329~356 | number of Cited : 1

Um 9․11 Terror, der in den USA stattgefunden hat, hat Deutsch für die öffentliche Sicherheit Organisation, die wie die Polizei ist, um eine Person zu erkennen, die den Terror Leistung plant, im ersten Schritt, um die Leistung dieses Plans durch Polizeirecht Änderung zu verhindern versucht und Informationssammeltätigkeit der präventiven Polizei in Krisenprävention Bereich durchzusetzen versucht. Aber heimlich Erzwingen präventiven polizeilichen Informationserhebung, die Informationswerkzeuge mit hoher Informations- und Kommunikationsfunktion verwendet, macht nationalen Agenturen persönlichen Privatlebensbereich durchdringen und leicht persönlichen Informationen, die im Gespräch darauf enthalten ist, besetzen. Präventive Polizei Informationssammlungsaktivitäten wie diese können wirksame Instrumente im Hinblick auf die Kriminalitätsverhütung oder Strafverfolgungsvorbereitung sein, aber in der einen persönlichen Entbehrungen Kommunikation und Gesprächsinhalte können von nationalen Behörden heimlich identifiziert werden, so dass es sehr wahrscheinlich gibt, dass diese Aktivitäten können in direkte Folge und kritische Durchdringung für den persönlichen Privatleben Gebiet, das für Grundgesetz geschützt Bereich ist. Glücklicherweise hat Bundesverfassungsgericht Grundstellung vorgestellt, dass es nicht erlaubt menschliche als einfaches Objekt der nationalen Behörde im Hinblick auf Grundgesetz, das auf Menschenwürde zählt, zu betrachten ist und versucht rechtliche Kontrolle zu präventiven polizeilichen Informationserhebung, die an der Kriminalprävention und Strafverfolgung Vorbereitung zielt. Dieses Papier beobachtet Grundstellung und in Diskussionspunkt des legalistischen Kontrolle zu präventiven polizeilichen Informationssammlungsaktivitäten, die konsequent über wichtige Entscheidung, die zu präventiven polizeilichen Informationserhebung für Bundes- und Landespolizeirecht der Bundesverfassungsgericht bezieht ist, fließen und versucht auf Vorschlagansicht für Polizeiaktionsdiskussion und Verfassung zu präventiven polizeilichen Informationserhebung zu finden.

Pledge of Allegiance to the Flag and Constitutional Issue - Focusing on the Gobitis and Barnette case in U.S. -

KIM MINBAE | 2015, 69 | pp.357~380 | number of Cited : 2

Pledge of Allegiance to the flag of the United States is a kind of sworn statements to be used toward the flag, etc. Currently, used in the United States, Pledge of Allegiance is as follows: “I pledge allegiance to the flag of the United States of America, and to the Republic for which it stands, one Nation under God invisible, with liberty and justice for all”. The original Pledge of Allegiance was written by Francis Bellamy. It was first given wide publicity through the official program of the National Public Schools Celebration of Columbus Day, which was printed in The Youth's Companion of September 8, 1892. Then, reviewing to the history of the United States Constitution, between 1936 and 1944, it was intensively generated for the cases surrounding the ceremony and Pledge of Allegiance to the flag. After the first World War, the United States welcomed the immigrants received in Europe. But, how will it be able to promote the unification as a nation, consisting of a truly multi-ethnic America, it had been key issues. Pledge of Allegiance to the flag was often prefer to patriotic education in the United States. Does the Pledge of Allegiance to the flag violated to the Fourteenth Amendment and the First Amendment, it was just a problem. The major issue was the two kinds. First, is it the religious event to the Pledge of Allegiance to the flag. Secondly, whether or not to deprive of constitutional rights to the compulsory participation for the ceremony. In the Gobitis case for the Pledge of Allegiance to the flag, 1940, the Supreme Court was ruled constitutionality. In the Barnette case, 1943, on the basis of reason the First Amendment violations, the Supreme Court was ruled unconstitutional Act. In this paper, I study on the compare to Gobitis and Barnette case, about the issues : the First Amendment, the Fourteenth Amendment, Freedom of religion, Freedom of expression, judicial review, the Establishment and Free Exercise Clause, etc.

The Principle of Constitutional Limits on Commercial Advertising

KwonSoonHyun | 2015, 69 | pp.381~402 | number of Cited : 1

Commercial advertising should also be protected by freedom of expression Commercial advertising are not to be protected on a par with general freedom of expression, see that it is appropriate for the protection of medium. I agree with respect to the direction for concluding that a decision by the Constitutional Court to exclude the application of the principle of prior censorship prohibited and a decision to apply the principle of excess ban by alleviate with respect to the recent commercial advertising. First, thinking about the principle of excess ban on commercial advertising is as follows: Because commercial advertising is also protected by freedom of expression and the object of the right to know, While the concept of the commercial is set to strictly narrowly, it is necessary to be applied to relieve the principle of excess ban. Next, stand on the principle of prior censorship prohibited of the commercial advertising is as follows: It is more reasonable to acknowledge exceptionally the principle of prior censorship prohibited rather than to prohibit absolutely On the basis of nature and primary purpose of the advertising media, nature of advertising object, impact of advertising and range of advertisement-accepted man, commercial advertising is one thing that is relevant to a certain extent of the public interest or the public interest (so-called public interest advertising), and another that is relevant to purely commercial profit (so-called commercial advertising). This criteria is required to classify commercial advertising. Relative to this classification, It is needed that the principle of prior censorship prohibited is applied to so-called public interest advertising but is not applied to so-called commercial advertising. While when in reality it is difficult to classify commercial advertising itself in this way, the concept of commercial advertising is strictly narrowly set, see that the way to mitigate the principle of prior censorship prohibited could be one way to solve rather than the way to exclude it.

Europäische und deutsche nationale Strategie und Rechte aufgrund dem Klimawandel

Kil Joon Kyu | 2015, 69 | pp.403~431 | number of Cited : 7

Legal Review of the Marine Carbon Dioxide Storage in Response to Climate Change - Focusing on Marine-related International and Domestic Laws -

LEE SOONJA , 한지희 | 2015, 69 | pp.433~467 | number of Cited : 11

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This paper studies major countries’ Climate Change policies on the marine environment and ‘Carbon Dioxide Capture, Sequestration and Storage(CCS)’ technology which is recognized as a means to reduce carbon dioxide. There have been many attempts to mitigate climate change all around the world and CCS technology has got a lot of attention as one of those attempts. Korean government also has tried to demonstrate CCS technology in the Korean Peninsula, but there is no current legislation to regulate CCS related issues. One can say that the ‘Marine Environment Management Act’ is the law to regulate CCS, but it is not enough because it only has a provision to allow emitting CO2 stream into the ocean even though it defines CO2 stream as a ‘waste’. In that regard it is necessary to prepare legislation to regulate CCS related issues before implementing CCS projects, and generally there are two ways; amending all the related legislations including the ‘Marine Environment Management Act’ or enacting one single legislation on CCS. This paper reviews climate change policy and CCS technology of US, EU and Japan, and compares them with our current situation to suggest which way is more appropriate to be applied to Korea. The conclusion reached in this paper is the latter one among those two ways, enacting one single legislation on CCS because amendment of related legislations cannot ensure systemicity and coherence of the legal system. There are three government departments, the Ministry of Trade, Industry & Energy, the Ministry of Oceans and Fisheries and the Ministry of Environment which are promoting a single bill regarding CCS. Each of them, however, is working on it respectively for its own purpose, so it became the cause of wasting time and budget. Therefore, it is necessary to organize a committee which can encompass all the three departments to make a single legislation. Besides the single bill on CCS, all of those CCS related legislations needs to be amended reflecting changes, so this paper also suggests ways to improve the ‘Environmental Impact Assessment System’, for example reflecting the characteristics of CCS in particular, which can be considered when the CCS related legislations will be amended.

The Outline of German Act on the Demonstration of the Permanent Storage of Carbon Dioxide and Its evaluation

Moon-Hyun Koh | 2015, 69 | pp.469~493 | number of Cited : 4

The energy and climate debate is among today's most pressing and most relevant points of discussion. There are different strategies for meeting the future energy demand without harming the climate. Carbon dioxide capture and storage(CCS) is a climate change mitigation option that reduces CO2 emissions by capturing them at major fossil fuel combustion plants and other industrial facilities such as bitumen upgrades, and storing them underground. Exactly because nuclear energy will be banned in Germany in the future, CCS will increasingly be in the focus of the debate on climate protection, since at the moment, renewable energies are not yet sufficiently available to guarantee a nationwide energy supply. Under these circumstances, recourse to energy generation from coal is the most obvious option. CCS might make this type of energy generation a low-carbon option. Therefore, Germany tried to make Carbon Dioxide Storage Act, KSpG(Kohlendioxid- Speicherungsgesetz) in short German. But the first proposal of German Carbon Dioxide Storage Act(2009) did not pass in the Senate (Bundesrat) because of unsolved safety risk and ambiguous liability. Especially, people of potential carbon dioxide storage site opposed this proposal. Therefore, we can learn a lot from trials and errors of German Carbon Dioxide Storage Act. We can’t emphasize the importance of public acceptance on CCS too much. Currently some Korean ministries such as Ministry of Science, ICT and Future Planning, Ministry of Environment, Ministry of Trade, Industry and Energy and Ministry of Maritime Affairs and Fisheries are preparing for an act on Carbon Dioxide Capture and Storage. Bearing in mind bitter experiences of Germany, we should make every effort to make a good act on Carbon Dioxide Capture and Storage with sharing information and knowhow between ministries.

Die Bundesrepublik als Kanzlerdemokratie – Zur Rechtsstellung des Bundeskanzlers nach dem Grundgesetz

Wolf-Rüdiger Schenke | 2015, 69 | pp.495~520 | number of Cited : 0

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Public Land Law Review 2023 KCI Impact Factor : 1.14

2015, Vol.69, No.