2019, Vol.85, No.

Eine rechtliche Untersuchung über den Gemeingutbegriff des Bodens

KANG, HYUN HO | 2019, 85 | pp.1~19 | number of Cited : 6

Durch den Anstieg der Immobilienpreise kam der Gemeingutbegriff des Bodens zur Diskussion. Der Gemeingutbegriff des Bodens beinhaltet die Einschränkung des Eigentums des Bodens aufgrund der öffentlichen Belangen. Das Eigentumsrecht des Bodens zwar verankert in der koreanishcen Rechtsordnung wegen des Einflusses der Aufklärungsidee und Naturrechtsidee als ein absolutes privates Recht, aber wird in der koreanischen Verfassungsordnung eingeschränkt, um die öffentlichen Interessen zu bewahren. In dieser Hinsicht enthält die koreanische Verfassung schon das Konzept des Gemeingutbegriffes des Bodens. Das wahre Problem liegt darin, was die öffentlichen Belangen bedeuten, um das Eigentumsrecht des Bodens einschränken zu können. Wie es durch die Ansichten von Henry George und John Rawls über die öffentlichen Interessen erscheint, die öffentlichen Belangen können durch die Abwägung der betroffenen Belangen gefunden werden, nämlich es gibt kein vorhandenes öffenltiches Interesse vor der Abwägung, denn die heutige Gesellschaft flechtet sich mit vielen diversen Interessen. Wichtige Indizien des öffentlichen Interesses sind in der Verfassung, in den Gesetzen und auch in den Verordnungen zu finden. Die öffentlichen Belangen sind so verschieden und widersprechen sich gegeneinander. Darum gibt es kaum einen anderen Weg, das öffentliche Interesse herauszufinden, ohne die betroffenen Interessen untereinander und gegeneinander abzuwägen. Die öffentlichen Interessen sind durch die Entscheidungen des koreanischen Verfassungsgerichtes relativ leicht zu finden, die sich mit der Verfassungswidrigkeit des Gesetzes sogenannt Drei Gesetze des Gemeingutbegriffes des Bodens befaßten. Drei Gesetze des Gemeingutbegriffes des Bodens wurde als verfassungswidrig nicht wegen der Einschränkung des Eigentumsrechtes des Bodens verurteilt, sondern wegen der Übermäßigkeit der Einschränkung, der umfangreichen Ermächtigung, des Grundsatzes der Gleichheit, des Grundsatzes der Verhältnismäßigkeit. Dadurch fordert das koreanische Verfassungsgericht dem Gesetzgeber einen besseren raffinierten Mechanismus, um die öffentlichen Interessen in den Bereichen des privaten Bodens zu gewähren. Diese Forderung des Verfassungsgerichtes widerspiegelt sich die Idee der Demokratie, in der die Bürger den Widerstand gegen den gewaltsamen Tyrann geleistet hat. Darum ist es der herrschenden Regierung und den Gesetzgebern nie zu vergessen, den Gemeingutbegriff des Bodens für das Wohl und Glück der Bürger zu gebrauchen.

A Comparative Legal Review on the Standard for Public Interest of Project Recognition System

Seok,Ho-Young | 2019, 85 | pp.21~42 | number of Cited : 5

The Land Compensation Act stipulates that a particular project that can accept or use another person’s land should first fall under ‘the project for public interest’, and the government’s decision that the relevant business falls under the project for public interest which allows the project operator to use or accept other person’s land has to be made. This is called ‘the project approval’. In addition, the Land Compensation Act also stipulates that the project that an accept or use land etc has to conform to the projects listed on the [Appendix] under Article 4 paragraph 8 of the Act, and projects that can accept or use land etc. can be settled on the criteria of ‘project approval’ under the Land Compensation Act if there are certain procedures for approval of development plans, approval of implementation plans or approval of formation plans as provided under each individual law. In spite of the fact that the former ‘project approval’ is the first step in the process of accepting and using one’s land, in practice, the latter ‘project deemed project approval has been used as a method of evading the procedure of project approval, which grants the right of eminet domain to the project operator. As a result, it has been pointed out that the scope of public service projects is unclear as a result of the widespread recognition of the business recognition system in individual laws, and thus the security of people’s property rights is not stable. Accordingly, on December 29, 2015, the National Assembly amended the relevant regulations under the Land Compensation Act, including the request of the Central Land Expropriation Committee before the approval or approval of the project was granted to guarantee the participation opportunity for the people and to enhance the public interest. In the end, the most important thing in a project subject to the Land Compensation Act for Public Use or the project recognition system is whether or not the public interest for the project can be clearly judged and whether a adequate legal system is prepared for the project. Thus, this paper will first review the revision of relevant regulations under the Land Compensation Act and the contents of recent researches performed in relation to the business recognition, and then review the current standard for public interest in the existing business recognition system through the comparative research on the judgment criteria for public interest in Japan which has the most similar system compared to South Korea in the business recognition.

A Study on the Revitalization of Urban Regeneration Using Land Banking System

Suh Soon-Tak , Jeong Hoe Gun | 2019, 85 | pp.43~63 | number of Cited : 4

The operational experience for the Free Economic Zone of the ROK and the legal implications for DPRK

KIM MINBAE | 2019, 85 | pp.65~92 | number of Cited : 3

The Improvement Direction of Compensation System by Restrictions for Public Use

kyungkyu seo | 2019, 85 | pp.93~121 | number of Cited : 3

The Improvement of the Land Consumed by Graves - On the basis of Act on Funeral Services, etc. -

Lee, Dong-Chan | 2019, 85 | pp.123~144 | number of Cited : 1

Legal-system on the Installation of Solar light power plant and Task of Local-self−Rulemaking

Kim,Hee-Gon | 2019, 85 | pp.145~199 | number of Cited : 3

Study on the Home-ownership Policy in Public Law

Lee, Jehee | 2019, 85 | pp.201~230 | number of Cited : 6

One of the preconditions for assuring human worth and dignity, as stipulated in Article 10 of the Constitution, is the right to adequate housing. Owning the home in which one lives is not necessary for a pleasant and stable housing environment. However, the policy of promoting housing ownership is necessary, as owner-occupied housing contributes to the stability of a residence, old-age life security, and active community participation. It is natural for an initial home-ownership to take precedence over multi-house ownership in housing policy. The support for housing purchase can help solve social problems such as low birth rate by establishing a virtuous cycle of independence attained through marriage, housing rent, and home ownership. The expansion of housing supply is necessary to expand housing holdings, while the role played by multi-house owners is important as well. This is because multi-house owners play the role of a civil rental business entity, and contribute toward the revitalization of the housing market by being the primary investors in the pre-sales system. Regulations targeting multi-house owners should focus on curbing the soaring housing prices, and on appropriate taxation on transfer and rental incomes. The real estate tax, which forms the core of housing policy, is determined by officially assessed land prices that reflect the market prices. The real estate tax is implemented through legislative policy as a tax on unrealized capital gain that reduces the predictability of household tax burden. It is necessary to refer to the taxation system of the United States, which imposes real estate tax on the acquisition price of a house. Moreover, if the highest priority of housing policy is to promote housing ownership, it should not increase the tax burden on real estate as it can cause non-householders to hesitate in buying housing. The current system of officially assessing land prices has drawbacks such as different ratio of market prices by region and type of housing. Therefore, it is necessary to review the taxation policy on the basis of unrealized capital gain. This should be discussed simultaneously with the transfer income tax. If the increased values on real estate are not included in taxation during housing holding, the values should be imposed on the transfer income tax. This would reflect the publicity of housing and curb speculative demand.

Artificial intelligence-based technology and relief

Kwang-soo Kim | 2019, 85 | pp.231~258 | number of Cited : 15

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In order to take the lead in the competition of artificial intelligence technology development, each enterprise is fiercely contesting. Reflecting this trend, related research papers are being exploded in the field of law. The contents of this study range from analyzing various laws for the promotion of artificial intelligence industry and suggesting alternatives to introduction of regulation on artificial intelligence. This article briefly introduces the current state of artificial intelligence and explains the development of science and technology applied to it and the change of the legal system that regulates it. Especially, I would like to explain legislation for the development of autonomous vehicles, drones, and medical devices using artificial intelligence, and their interpretation and operation. The reasons why government plays an important role in the development of industries applying advanced science and technology are as follows. First, the government should create a platform for the information and communication field and provide core services that can enable application apps and services. It is hard to expect smooth development without guaranteeing the construction and continuity of the infrastructure by the government even in the environment where each company is leading business. Second, the latest science and technology is guaranteed by normal rule of law. The government can properly control the disturbances in the market, so that each actor can establish a framework for pursuing his own interests without harming the interests of other actors. Third, the government can play a role as a promoter of advanced science and technology development. By investing government resources in high-tech science, we can activate research and accelerate the development and commercialization of related technologies. It is also the government's responsibility to conduct long-term tasks that are difficult for individual companies to undertake and to set the direction of technology development to protect the basic rights of the people. And the government can provide a source of ICT based on it as a holder of big data. Thus, the government still plays an important role in the development of artificial intelligence and its underlying science and technology. However, due to the rapid change of technology and the necessity of flexible response, a new method of regulation that has not been seen before has emerged. In the past two years, there have been many articles analyzing the development of high technology and the emergence and operation of the legal system supporting it. This article is basically focused on finding a legal system that promotes the development of advanced science and technology. Therefore, I will first explain the legislation related to the development of advanced technologies such as autonomous vehicles, drones and medical devices based on artificial intelligence, analyze the effects of these advanced technologies on people's fundamental rights, and examine legal measures to minimize harmful effects. Artificial intelligence-based applications of science and technology have some characteristics that distinguish them from conventional regulations. First, it is an out-of-law phenomenon. The emergence of a new industry means the emergence of a new field that was not previously planned by the legal system, so at first the buds of development grow regardless of legal support or regulation. In other words, the value is first recognized in the market and investment is made first. However, if the related field has any form of information and the theory and technology are socially recognized, there is no applicable method for this field, so a proper discipline method is needed. Exceptional regulatory measures, such as regulatory sandboxes, provisional permits, conformity certifications and local special zones, illustrate this. In the new technology field, it is necessary to analyze the risks of the safety of the people with new technologies and to prevent the problems of securing the competitiveness of the industry by promoting the development of the technology. Securing competitiveness and prioritizing the development of the industry may miss control of the risks inherent in the technology. On the other hand, there is a concern that excessive regulation with priority of safety will prevent new technology and development of useful machines. Therefore, both the development of industry and the security of the people should be properly harmonized.

The Role of the Government and the Legal Measures for the Prevention of Corruption in Public Institutions

Cholho Choi | 2019, 85 | pp.259~279 | number of Cited : 11

Legal review for Particulate Matter reduction - Focused on the reduction of automobile Particulate Matter -

KIM, NAM WOOK | 2019, 85 | pp.281~312 | number of Cited : 10

The State has a constitutional obligation to protect the health of the people and the body. The Constitution has a legal obligation to ensure the basic rights of the environment and to maintain a clean air environment. In recent years, the Ministry of Environment and Basic Law has strengthened the environmental standards of ultrafine dust, established particulate matter management plan in accordance with Particulate Matterfine Law, designated particulate matter concentration area and prepared emergency measures, air pollution emission allowance standards, Despite the reduction measures and countermeasures such as the designation of the restricted area for automobile operation due to the fine dust regulations of the organization, the fine dust of the automobile exhaust gas poses a risk to the health of the people. Therefore, it is urgent to examine the legal system for the reduction of fine dust in automobiles and to take measures for improvement, because the exhaust gas emitted from diesel vehicles causes lung injury, asthma, bronchitis, cardiovascular disease, stroke and lung cancer. In the following, the system and main contents of the Environmental Policy Basic Law, Particulate Matterfine Law, Air Pollution Conservation Law, metropolitan area countermeasure method for the reduction of automobile particulate matter in Korea are reviewed, the automobile emission permission standard is strengthened, Review legal issues related to the abolition of automobile brake pads and tire particulate matter, clean diesel support policy, prohibition of motor vehicle service for old aged diesel vehicles, and liability for national damage caused by defects in the installation of public sanitary facilities on roads and seek ways to improve them. First, it is necessary to strengthen emission standards of automobile fine dust and nitrogen oxides according to the Air Quality Preservation Act in line with the standards of the World Health Organization or the EU, and to strengthen the emission of nitrogen oxides and the like in cancer-induced diesel vehicles. Second, it should restrict the restriction of automobile operation to conform to EURO-6 within the restricted area of fine dust concentration area and the limited area of automobile operation, and shall effectively impose appropriate emergency measures, administrative orders or penalties. Third, in order to reduce brake pads and tire particulate matter due to automobile operation, measures to reduce air quality by operating brake pads and automobile that absorbs tire fine dust are prepared in the Air Quality Preservation Law, and development of automobile brake pad and timer Particulate Matter reduction technology To provide subsidies or tax assistance to businesses that. Fourth, when particulate matter are issued warning or warning, it is necessary to prohibit the operation of all vehicles in the restricted area of the automobile, and if the concentration of particulate matter exceeds the emission limit or environmental standard, the city center should be operated at a low speed of 40km, The diesel clean policy should be abolished to abolish subsidies and tax incentives, and the transition of automobile traffic fader lime should be made so that environmentally friendly vehicles are actively supplied. Finally, if the particulate matter reduction plan or measures are not properly prepared or the appropriate measures are not taken due to inadequate measures, the residents within 20m of the road near the road for more than one year If the resident has exceeded the allowance for emission standards such as ultrafine dust, nitrogen oxides, etc., and the residents have a significant causal relationship with the onset of bronchial asthma, they shall be liable for national compensation.

A Legal Study on the Decentralization and Self-governing Police System

Jang Kyo-Sik | 2019, 85 | pp.313~333 | number of Cited : 13

In regard to the police system, the Korean government has operated a centralized national police force. As a result, even though the policing efficiency is high, the police system has been operated in a uniform fashion without considering regional characteristics. As a result, citizens’ wants and needs have not been properly reflected. To address this issue, a metropolitan self-governing police system has been promoted allowing the police system to be more democratic and to strengthen the policing activities. Self-governing police forces should be formed in a resident-friendly way to improve crime-prone environments through the cooperation between the police and local authorities while reflecting the locals’ demands. Furthermore, self-governing police forces should actively respond to citizens’ requests and have the authority and manpower to maintain their identity. According to the Special Committee Draft for Self-governing Police Systems, which was discussed at the Self-governing Police Systems Committee under the Presidential Committee on Autonomy and Decentralization held in November 2018, the metropolitan autonomous police system would be launched in 2019 and implemented nationwide by 2022. This study attempted to investigate the autonomous police system in the Jeju Special Self-governing Province which has been operating since July 2006, analyze a plan to introduce the Special Committee Draft for Self-governing Police System, examine how to establish the local authority’s roles through this new system, and to find a specific plan to implement it. The Special Committee Draft for Self-governing Police Systems is only a framework for the long-discussed advancement to autonomous police forces. In other words, there should be continued efforts to push through a government bill finalized through public hearings and have the self-governing police system implemented through a legislative process. After all, it appears that the introduction of a metropolitan self-governing police system and its successful implementation would establish grassroots democracy leading to another step toward actual decentralization.

The renovation of korean environmental legislation on the new UN framework convention on climate change

Song Dongsoo | 2019, 85 | pp.335~363 | number of Cited : 9

Climate change is a threat that exists both now and in the future and is a problem not only for a specific country but also for the whole world. The Kyoto Protocol, which will be implemented by 2020, obligates industrialized countries to assume historical responsibility for environmental pollution and obliges industrialized countries to reduce greenhouse gas emissions. Korea has not been obliged to reduce greenhouse gas emissions because it is not included in advanced countries in the Kyoto Protocol. However, with the adoption of the Paris Agreement at the COP21 held in Paris, France in 2015, Korea is obliged to reduce greenhouse gas emissions in the future. In other words, Korea has become a member of the Post-2020 Regime. The Paris Agreement differs in many respects from the Kyoto Protocol. The Paris Agreement is intended to establish a new climate regime after 2020, when the Kyoto Protocol will expire. Unlike the existing Kyoto Protocol, the Paris Agreement sets a total of 195 Parties to UNFCCC. That is, it imposes a duty to reduce greenhouse gas emissions not only in developed countries but also in developing countries. The Paris Agreement sets out a long-term goal of keeping the average global temperature rise above pre-industrial levels at levels well below 2°C and seeking to limit them to below 1.5°C. It is not easy for developed and developing countries to achieve one goal in different situations. The Paris Agreement gives much discretion to the setting of NDC and there are regulations in the developing countries for various convenience. The Paris Agreement is in effect on October 4, 2016, 30 days after its entry into force on October 5, 2016. Korea also became a member of the Paris Agreement by ratifying the National Assembly on November 3, 2016. Korea has already submitted a national contribution plan (NDC) to the international community to reduce the BAU by 37% by 2030. In order to reduce and adapt GHG emissions under the Paris Agreement, Korea needs to improve its legal system. It is necessary to improve national plans such as the basic plan for responding to climate change, renew the climate change response fund and activate the sustainable mechanism(SDM). It is also necessary to amend the Framework Act on Low Carbon Green Growth, the Climate Change Response Act and the Law for the Activation of the Hydrogen Economy.

A Study on the Theory of Separation of Powers

Lee Young Woo | 2019, 85 | pp.365~387 | number of Cited : 0

Civilian law-enforcement states that set the people's freedom and equality as the most valuable ideology adopted separation of power as the organizational principle of governance in order to guarantee the people's freedom. Finding effective ways to prevent power from being concentrated in one place and decentralize power is of interest to human political groups. The power limit and separation seem to be working with a strong consciousness of human rights protection based on the principle of natural law. The theory of separation of powers is a constituting principle of the governing structure, which allows the division of state power to guarantee the freedom and rights of the people and disperses these powers to separate and independent state organs, thus preventing the concentration of state power to a certain individual or group, as well as maintaining the balance of power among power-sharing. The principle of separation of powers, which has the same root as constitutionalism, has been institutionalized as a means of guaranteeing people's freedom in a civil and legal state under the ideology of liberalism. Classical power separatism divided national power into legislative and judicial administration, and only the ruled or Congress, which was identified with the people could enact legislation with general abstraction. The administrative and private law were bound by the three powers' mutual checks and balances to guarantee the people's freedom by preventing concentration of power, where the nation's activities were limited to the passive function of maintaining individual freedom and order, so that institutional and functional divisions could be maintained to some extent. However, the passive law governed country of the 18th and 19th centuries changed into an active law governed country of the 20th century, and the principle of separation of powers brought about many changes in its meaning and contents. The theory of separation of powers under social and economic conditions called for greater expansion and deepening of the problem area than classical separation of powers. Unlike the passive state function of the past laissez-faire era, modern times become an administrative country with active national function requested, and the question of the significance of the existence of the power separation system under the Constitution of the modern state and the question of how much power separation will work as the governing organizational principle of the modern state and whether there is a chance of survival in the future. Therefore, how to harmonize this division of power with the concentration of power and how to achieve balance and stability systematically are modern tasks of separation of power.

A Constitutional Study on the mean of Ocean

Yongjeon Choi , Shin, Bong-Ki | 2019, 85 | pp.389~411 | number of Cited : 2

Since the advent of the United Nations Convention on the Law of the Sea, countries around the world are claiming sovereignty, sovereign rights and jurisdiction over the continental shelf, the exclusive economic zone and the deep sea, and are trying to expand the area of the sea. Nonetheless, when we look back at our Constitution, there is no mention of 'the territorial sea' and 'the sea', and the possibility of legislation is not feasible in the future. Therefore, in the active aspect of expansion of territory, we should consider the changes of our Constitution and related laws on the sea and marine fisheries. In addition, we reviewed the constitutional regulations of the major countries on the sea and the current state of international law, and examined what they suggest to us. Since recognizing the importance of fisheries resources at the time of the Korean Constitution was enacted, and having rules of the socialization of natural resources and the provision of fisheries resources, Korea has not made any provision about the 'ocean' until the 6th republic. However, to the 6th republic in the marine laws, it began to put legal grounds on the continental shelf, exclusive economic zone and the deep sea. The definition of "sea" is defined as the territory whereto extends the sovereignty, sovereign rights or jurisdiction of the Republic of Korea such as "waters within the port, inland waters, territorial sea, contiguous zone, exclusive economic zone, continental shelf, and high seas" And marine fisheries resources include “the marine living resources, marine mineral resources, marine energy, marine tourism resources and marine spatial resources”. The attitudes of the world's constitutions on the sea vary. The Constitution of Russia, the United States, and Canada etc. have regulations on the sea. Examples of countries that are regulated by law include Japan, the United Kingdom and France. The United Nations Convention on the Law of the Sea, which was enacted in 1982, contains a jurisdictional waters baseline (normal and straight baselines), the breadth of the territorial sea (a limit not exceeding 12 nautical miles), the regime of passage through the International Straits, contiguous zone (24 nautical miles), exclusive economic zone (200 nautical miles), continental shelf (200 to 350 nautical miles), archipelagic waters, high seas, the deep sea, the protection and preservation of the marine environment, settlement of disputes as its main contents. The key issue is that they recognize sovereign rights in the continental shelf and in the exclusive economic zone. Therefore, Korea should have a viewpoint that it is a 'maritime territory' as a spatial basis for achieving the achievement of science and technology and industrial development. And we should the Constitution should be based on the substantive enactment about the sea and seriously consider how to reflect them. Furthermore, to advocate sovereignty, sovereign rights and jurisdiction over the continental shelf, the exclusive economic zone and the deep sea, etc., maritime science and technology innovation should be supported

Public law review on the actual condition of Grandparents-grandchildren Families

Park Seon Hui , Cho Kye Pyo | 2019, 85 | pp.413~429 | number of Cited : 4

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2019, Vol.85, No.