2018, Vol.84, No.

Three Special Civil Acts on Real Estate and Common Welfare

Heo, Kang Moo | 2018, 84 | pp.1~19 | number of Cited : 7

Real estate policy including housing is an area which is directly connected to everyday life and it requires well timed response and application to social and environmental changes which is a basic role of the government. For this purpose, so called three special civil acts on real estate include 「HOUSING LEASE PROTECTION ACT」 which was established in the 1980s for stable residence of lessee, 「ACT ON OWNERSHIP AND MANAGEMENT OF CONDOMINIUM BUILDINGS」 which regulates the relationship of rights and duties of divided ownership of buildings, and 「COMMERCIAL BUILDING LEASE PROTECTION ACT」 which was established in the 2000s for protecting lessee of commercial buildings. Special civil acts on real estate are established and enforced in order to provide necessary rules and regulations with regard to special and specific matters which are difficult to efficiently regulate solely by rules and regulations of civil acts or which have no rules and regulations provided by civil acts. In case of collision between civil acts and special civil acts concerning the same matter, special civil acts are prior based on the principle of priority in special acts. Considering the nature of special civil acts, intervention of administrative agencies are allowed to the minimum extent necessary which do not undermine the principle of private autonomy and the Ministry of Justice have the jurisdiction which is a ministry and office concerned in civil acts. Special civil acts on real estate were established in the form of special acts within civil acts and therefore regulated for the sake of the legal relationship between lessor, lessee, and/or persons holding a divided ownership and political intervention is minimized. Due to the nature of the Ministry, the Ministry of Justice regulates such acts for the sake of legal relationships such as rights and obligations, and for this reason, linkage between protection of lessor and lessee and real estate policy discloses legal and political limitations. As there are almost no administrative sanctions such as fine and punishment in case of infringement of law, parties have no choice other than personally seek relief by putting in a claim for damages through a lawsuit. Nevertheless, considering that the protection of housing and commercial building lessee is basically linked with the real estate market and interconnected with various real estate public policies including taxation, finance, information and statistics, it is time to fundamentally review the legal relationship-centered approach. The purpose of this study is to review the main contents of the background of the establishment of three special civil acts on real estate and how the policy for protecting housing and commercial lessee can promote security of housing and business activities by protecting the rights of lessor and lessee for the purpose of enhancing public welfare, and furthermore to suggest legislative and political solutions from a perspective of a specialist in public law focusing on measures which may contribute to a balanced development of the national economy.

Problems and Improvement Plan on permission standard for conversion from a mountainous district

Jung, Kyung-Mo , Jeong Hoe Gun | 2018, 84 | pp.21~38 | number of Cited : 4

The purpose of this study is to investigate the permitting system for conversion of mountainous district, which is stipulated in the "Mountainous district Management Act". The mountain district refers to land that is forest land, the land where the trees are collectively growing, the land where the land is temporarily lost, and the land which is used for collective growth of trees. In order to promote economic development, such mountainous district may be developed in mountainous district. A person who intends to use the mountainous district for the purpose of development of the mountainous district may use the mountainous district with the permission of the Minister of Forestry, etc. according to the type and conversion of the mountainous district specified by the Mountain Regulations. However, the regulations on the permission for exclusive use of mountainous district are uniform and uniform, and it is very difficult to adapt them to various mountain forms. In addition, the permission standards for conversion of mountainous district are variously regulated by the regulations of local autonomous bodies, so that permission for exclusive use of mountainous district is not uniform and indiscernible, which raises the issue of equity for each region, which causes civil complaints. On the other hand, since licensing standards for mountainous district are prescribed by the ordinances of local governments, it is often the case that permission for permission is applied in accordance with the permission standards of the ordinance. This is a concern. In future, global warming and heat waves will continue to fly and the frequency of landslides will increase due to localized heavy rain. Therefore, the role of mountain regions is very important to prevent such natural disasters. Conservation of mountainous district is very important because the development of mountain district or natural disasters will have a great impact on our economy. In order to solve these problems, it is necessary to establish reasonable and unified licensing criteria for mountainous district that can be applied to various kinds of mountainous district of Korea and characteristics of each region, to prevent the development of mountainous regions and to contribute to the national economy by preserving the mountainous district something to do. Therefore, in this paper, the problem of the mountain clearance permit standard prescribed in the "Mountainous district Management Act" was derived and the improvement direction was studied.

A reform of the system on the investment promotion zones of the Jeju Special Self-governing Province

Ko Heon Hwan | 2018, 84 | pp.39~54 | number of Cited : 2

Planing supremacy of Local Governments and Balanced Development of the Land of the Nation

JEONG HOON | 2018, 84 | pp.55~76 | number of Cited : 7

The Review of the System and Appraisal related to Stable and Stable Site

kyungkyu seo | 2018, 84 | pp.77~97 | number of Cited : 3

A Study on the Legal Issues of Urban Planning for Development Restriction and Charges for Preservation

Choi, Jong-Kwon , 김 현 희 | 2018, 84 | pp.99~121 | number of Cited : 1

In principle, development activities are restricted within the development restriction zones. And construction of buildings is permitted only in exceptional cases which not against the purpose of designation of the development restriction zones. Even if it is permitted, the charges for preservation is imposed in order to prevent reckless occupation by utilizing low land prices, and secure business resources such as maintenance of the area and support for residents. However, the existing charges for preservation system in current law has been shown its irrationality in legal regulations on design and its operation. First, the Act on Special Measures for Designation and Management of Development Restriction Zones(hereinafter referred to as the “Greenbelt Act”) equally governs buildings and structures in terms of behavioral restrictions and exceptional permits. However, both subjects are specifically distinguished from the charge and standard of charges for preservation. Since the criteria for the distinction is unclear, it is necessary to clarify it in the interpretation. In addition, as the floor area is excluded from the calculation of the charges for preservation of the structures, it is reasonable that a certain portion of the charges for preservation is imposed.Second, the Greenbelt Act generally restricts the building activities, but the scope of the building activities includes the new construction or the extension, alteration, reconstruction, or relocation of an existing building. The Greenbelt Act specifically distinguishes the new construction and the expansion and reconstruction activities. However it does not provide detailed regulation in the reconstruction of infrastructure, so the gap of discipline is generated. In other words, although the floor area should be excluded in the case of reconstruction in the criteria for calculating the charges for preservation, there is no such provision. Therefore, the reconstruction of the infrastructure is in danger of imposing double charges. Especially, the provisions of the current law imposing the charges for preservation in the case of modernization and indoorization of the aged infrastructure in order to protect the existing facilities, need to be improved. Third, the Greenbelt Act interlinks the object of the preservation charge with the exceptional permissible object. This seems to be reasonable, as it exceptionally imposes charges on what is allowed within the zone. However, there is a substantial difference in imposing the charges for preservation, since the purpose of the permission and the charges for preservation are different. Therefore, it is necessary to establish a system of the object to be imposed independently in accordance with the purpose of the charges for preservation, and improve it legally to eliminate the substantial unfairness. In addition, there is a need to establish detailed standard for a basis for providing practical evaluation criteria.

Auflegung von Kompensationsgeld durch den Staat auf die Gemeinden mit kommunaler Selbstverwaltung

Kang, Ho-Chil | 2018, 84 | pp.123~141 | number of Cited : 1

Der Staat muss ständig öffentliche Dienstleistungen für die Nation erbringen. Insbesondere sind große Flächen benötigt, um die Nachfrage nach öffentlichen Gütern wie Straßen, Flüssen, Häfen und Parks zu decken. Gegenwärtig besitzt der Staat etwa 25% der ganzen Landfläche und führt mit diesem Staatsland die verschiedenen öffentlichen Arbeiten durch, wobei das Problem darin besteht, dass die lokalen Regierungen(Gemeinden mit kommunaler Selbstverwaltung) auch öffentliche Dienste anbieten. Von der ersten Verfassung an gab es Gemeinden mit kommunaler Selbstverwaltung, und diese sind in der Rechtspersönlichkeit von dem Staat verschieden, aber die beiden haben sich lange voneinander nicht deutlich unterschieden. Die lange Erfahrung der Zentralisierung und der überwältigende Unterschied der finanziellen Kapazität zwischen den beiden haben dazu geführt, dass die Gemeinden mit kommunaler Selbstverwaltung (lokale Regierungen) sich finanziell stark auf den Staat(Zentralregierung) verlassen hat Dieses finanzielle Abhängigkeitsphänomen tritt auch als ein Phänomen der Abhängigkeit der Gemeinde mit kommunaler Selbstverwaltung von dem Staatsland auf. Dabei hat der Leiter der Gemeinde mit kommunaler Selbstverwaltung, der bis zum 1. Juli 1995 von der Zentralregierung ernannt wurde, unter Genehmigung der Zentralregierung(oder unterAnweisung der Zentralregierung) viele lokale Verwaltungsangelegenheiten ausgeführt. Auch nach dem 1. Juli 1995, als die Zeit des Leiters der Gemeinde mit kommunaler Selbstverwaltung, der von der Bevölkerung ausgewählt wird, begonnen hat, hat sich die Tendenz der Lokalregierungen, sich auf das Staatsland zu verlassen, tatsächlich fortgesetzt, indem die Zentralregierung den Leitern der Gemeinden mit kommunaler Selbstverwaltung die Bewirtschaftung und die Veräußerung des ungenutzten Staatslandes anvertraut hat(behördliche Beauftragung). Das System der direkten nationalen Zuständigkeit, das am 1. März 1994 eingeführt wurde, wurde zusammen mit dem System der behördlichen Beauftragung durch den Leiter der Gemeinde mit kommunaler Seklbstverwaltung implementiert, und im Juni 2013 wurden das System der direkten nationalen Zuständigkeit vollendet, indem die Behörden für die Bewirtschaftung und die Veräußerung des ungenutzten Staatslandes zu Korea Asset Management Corporation vereinigt wurden, und dies führt dazu, dass der Rechtsstreit um den freien Gebrauch des Staatslandes durch die lokalen Regierung, der bisher gelauert ist. an der Wasseroberfläche auftaucht.

Review of the administrative law issues on the nuclear power plant policy

Q-MAN BAN | 2018, 84 | pp.143~171 | number of Cited : 3

The purpose of this study is to present the policy implication by analyzing the deficiency of administrative law on the enlargement of the public opinion committees in various regions of the domestic, even though the activities of the public opinion committee although the Prime Ministerial Order are violations of the administrative law system. The authors found that the case of the deliberative democracy system, which was started from abroad, was generally limited to the community problems aimed at activating the region. In addition, autuor analyzed that through analysis of interdisciplinary comparisons and foreign cases and articles, it is suggested that procedural issues in the process of constituting domestic public opinion committees as an implication, there are not the rule or act on the legal binding power for the decision organizing of citizen juries, the government has no legal basis to decide to suspend the construction of the nuclear plant, whether the legal theory of balancing requirement sufficiently considering the interests of the relationship with the basic plan has been properly applied or not. In addition, author found that there are foreign information on predicting the increase of nuclear power plants and the discussion committee 's deliberation only by providing such limited information. In other words, there was a procedural defect that did not disclose or share information to the citizen juries in regard to the fact that they provided fair information and did not deliberate on the problems of the nuclear power plant and the problems of the alternative energy cost. In conclusion, the authors suggests that the government porvide people interpretation on international trends more precisely and re - establishes the safe management and support policy of nuclear power generation for the purpose of enhancing the safety and welfare of the people.

A Legal Study on Basic Plan for Long-term Supply & Demand - Possibility of Judicial Control -

Chung, Seung-Yun | 2018, 84 | pp.173~194 | number of Cited : 6

The 8th Basic Plan for Long-term Supply & Demand is 'the long-term administrative plan for 15 years established every two years under Electric Utility Act in order to forecast mid- to long-term power demand and expand the power supply facilities accordingly'. The 8th Basic Plan for Long-term Supply & Demand is 'reduction of nuclear power generation and expansion of renewable energy generation' and reflects the policy of the phase-out of nuclear power plant. The 8th Basic Plan for Long-term Supply & Demand has split public opinion on energy policy and widened conflict. As a means of resolving this conflict, judicial control over The 8th Basic Plan for Long-term Supply & Demand is needed, as the most effective method of judicial control is the Revocation Litigation under the current law. The first gateway to the possibility of cancellation is the existence of disposition of the power supply basic plan. In this regard, The 8th Basic Plan for Long-term Supply & Demand was considered to be disposable of by the constrained administrative plan. The second gate is the standing to sue, which is a problem caused by the fact that the Korea Hydro & Nuclear Power Co., the direct counterpart of the power supply basic plan, is a public company. Accordingly, the direct victims of The 8th Basic Plan for Long-term Supply & Demand are the Korea Hydro & Nuclear Power Co., a state-run company, and the rights violators and victims are the same. Therefore, there is no possibility that Korea Hydro & Nuclear Power Co. will file a lawsuit for cancellation. Therefore, the government, which is a shareholder of the Korea Hydro and Nuclear Power Co., reviewed the fact that the plaintiffs were eligible for severe property damage, including workers and labor unions, and The Act on Assistance to Electric Power Plants-neighboring Areas. In conclusion, a lawsuit against The 8th Basic Plan for Long-term Supply & Demand could be a means of resolving conflicts over the administrative plan.

A Legal Review for Promotion of Residents Autonomy Council

Jang Kyo-Sik | 2018, 84 | pp.195~215 | number of Cited : 9

It is necessary to develop a plan for a successful Resident Autonomy Council after viewing the problems and implications seen after witnessing two demonstration by the Resident Autonomy Council, that were promoting a goal of realizing a grassroots democracy. To address the Residents Autonomy Council, it’s required to improve the Local Autonomy Act and Special Act on Decentralization through a legislative investigation and to review the enactment of the Local Autonomy Act. As a way to further support local autonomy, it is important to improve ordinances which reflect local situations and characteristics. Regarding the issues presented by the Residents Autonomy Council, dependence upon the central government for finances should be avoided for the normal operations. In addition, there should be diverse ways to secure resources locally. To realize a participatory democracy, the Residents Autonomy Council’s duties will be limited to the affairs delegated or assigned by local autonomous organizations. There should be multiple efforts made to empower the locals to participate in the Residents Autonomy Council’s projects and activities, hence discovering the matters needed for community harmony and development. For the continued development of the Residents Autonomy Council, it is essential to give experts from diverse fields a chance to participate, lending their knowledge. To realize the potential of the residents it is crucial to improve their consciousness during participation. To this end, many people’s interests must be addressed by the Residents Autonomy Council, and continued education is needed as well. In terms of public relations, the Residents Autonomy Council should be easily accessible. Furthermore, there should be an information and communication technology-based training and PR system. Ultimately, it appears that the promotion of the Resident Autonomy Council could be the turning point in launching a humane and, at the same time, creative local autonomy administration, based on the locals’ participation, collaboration, and creativity. Furthermore, it can be a touchstone for successful decentralization.

A Legal and Institutional Study on the Welfare Promotion of Public Officers - with priority given to fire fighters -

seon eun ae | 2018, 84 | pp.217~234 | number of Cited : 2

Fire fighters perform their mission to ensure the safety of the lives and bodies of people, though they continue to be exposed to dangers on a long-term basis due to their job characteristics. They are exposed to toxic gas, and some commit suicide because of stress from shocking incidents or accidents or of heavy workload, Furthermore, there are lots of casualties. However, their welfare, working conditions and treatment are all poor. To remedy the situation, a fundamental law on the health, safety and welfare of fire fighters was enacted, which is a law to guarantee the health, safety and welfare of fire fighters, and that has been enforced since August 23, 2012. But there are still continuing problems because there isn't any significant improvement in their welfare and treatment even after the law started to be enforced. To change this situation, legal and institutional consideration, continuing attention and prolonged research efforts are all required. In this study, the legislative background and legal grounds of the fundamental law on the health, safety and welfare of fire fighters were investigated. The state of fire fighters and the state of casualties including those who died on the job were analyzed, and how to improve this law was explored. And then the extension of medical assistance was suggested to improve the hazardous and harsh working environments, and it's also suggested that mandatory mental health programs should be introduced to relieve the damage of mental trauma resulting from being on the scene, and that a counsel system related to the duties of fire fighters should be introduced to help them receive professional help from counsels about their liability for an illegal action if there's any. The effort by this study to research various systems related to fire fighters to suggest how to improve the law and system to promote their welfare is expected to give a great strength for them who serve and sacrifice themselves for the nation and for the protection of the lives, bodies and properties of people in spite of tough working environments to go on.

A review on the bills for the alternative civilian service

Hong Wan Sik | 2018, 84 | pp.235~255 | number of Cited : 4

A Constitutional Study on Integrated Water Management and Preservation

Kim, Sang-Kyum , 서 정 윤 | 2018, 84 | pp.257~279 | number of Cited : 1

Water which constitutes two-thirds of the earth's surface is an essential resource for human survival. According to the UN, Korea is one of the countries going through water shortages, which means that the water resource is not being managed in an efficient way. The government has established policies in various dimensions to address water scarcity, including those for preserving the environment for water. Korea has so far continued to improve laws and regulations manage and use water as a resource. Water as a resource is composed of surface water and ground water, and to manage stream water that composes most of surface water, the River Law has been continuously amended. Furthermore, the Law on Water Environment Preservation was enacted for the integrated management of water environment. Water management is critical, because it is not only used for drinking, but in agriculture and manufacturing industry. Despite this importance, water management in Korea has not been systematic. Considering the whole process of rain becoming surface and underground water, then flowing into the sea through the river, and then evaporating into the air for rain again, integrated water management becomes essential. Countries like Germany and Japan introduced an integrated water management system by amending the Water Circulation Act. Korea has embarked on similar legislation, but the lack of coordination between competing government agencies has not led to a full-fledged legislation of an integrated water management law. However in May 2018, the bill of Water Management Basic Act passed the National Assembly. As a result, The Committee on Water Management was established under the auspices of Ministry of Environment which now is mainly in charge of the water management issue. With the introduction of Water Management Basic Act, integrated water management began to have legal basis, but authorities to manage water resources related to stream water still partially remains at the Ministry of Land, Infrastructure and Transport. This might hinder the systematic management of water from the viewpoint of water circulation and environment. An amendment of the Law sooner than later for a more integrative legislation is therefore called for.

Basic Principle of Public Understanding Guideline Concerning CCS

Moon-Hyun Koh | 2018, 84 | pp.281~299 | number of Cited : 3

A Study on the Representative Democracy

Lee Young Woo | 2018, 84 | pp.301~325 | number of Cited : 2

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Public Land Law Review 2023 KCI Impact Factor : 1.14

2018, Vol.84, No.