2020, Vol.89, No.

Legal review of the Impact Assessment on the Environment, Disaster and Traffic Related to Urban Development

Seung Pil Choi | 2020, 89 | pp.1~28 | number of Cited : 1

Factors that need to be considered in urban development include environment, disaster and traffic. Therefore, it is essential to evaluate these 3 factors in order to pursue urban development project because of the need to establish sustainable cities rather than short-term development. Environmental impact assessment functions to prevent environmental infringements in advance and resolves conflicts in the development process. Environmental impact assessment is divided into strategic environmental impact assessment and environmental impact assessment depending on the stage of development. While the former is the stage of establishing the plan while the latter is necessary in the specific development stage. In addition, there is a small scale environmental impact assessment to be executed as need arises. Although there are precedents on whether the approval of the development project can be cancelled if there is a defect in the environmental impact assessment, it is difficult to view it as having fully utilized the intent of the environmental impact assessment system. The precedent views the project approval that has not undergone environmental impact assessment at all as being invalid and that has not undergone some of the assessment procedures as being cancelled. As such, it does not necessarily determine the assessment that has been made but with poor contents of assessment as being illegal and leaves room for different decisions in accordance with the given situations. Assessment of disaster impact is similar to the environmental impact assessment in its structure. The obligation of the government under the constitution to protect the lives and safety of the public has been projected onto the assessment of disaster impact. Projects subjected to the assessment of disaster impact include development of national land and cities, establishment of industrial estates, energy development, construction of traffic facilities, use and development of rivers, and development of water and maritime resources, etc. In order to execute the assessment of disaster impact, it is necessary to hold discussions with the Ministry of Public Administration & Security in charge of the prevention of disasters. However, there is a need to fortify control at the stage prior to the approval of the plans for projects since the ex post facto sanctions in the event of an infringement of the details discussed are in fact not effective and practical. As the prevention of disaster is becoming increasingly more important, assessment of the impact should be simplified with a focus on core issues while there is a need to fortify the binding force on the issues discussed. Assessment of traffic impact is executed under the presumption of urban development. It is also similar to the environmental impact assessment in its structure. From the perspective that there is almost no formation of precedent on the assessment of traffic impact itself, the position of the precedent on the environmental impact assessment becomes the reference for the decision to be made. In the case of the assessment of traffic impact, illegality thereof is determined according to the extent of its insufficiency. It is difficult to invalidate the approval given with the condition to undergo the assessment of traffic impact in the event of failure thereof as a matter of fact. As such, whether the impact assessment should be re-executed will be decided depending on the floor area in the event of expanding the existing building. Assessment of the impacts of environment, disaster and traffic is an essential element of sustainable development of national land and cities. However, there is a need for utilization of a scoping system with consideration of the characteristics of individual development projects from the perspective that a lot of time is required.

The Review of Housing Policy Change on October 1st 2019 and the Related Legal Issues- Focusing on the President Moon’s Rental Housing Policy and the Suggestion -

Kim, Sung-Bae | 2020, 89 | pp.29~59 | number of Cited : 6

Human basic needs consist of clothing, food, and house. In order to maintain the basics of humanity, the basic needs must be solved. The problem of housing, however, is shaped by a unique market in which existing economic views do not prevail. Historically, rental housing was customary in the private sector, not in public sector, and was governed by civil law. The enactment of the Public Housing Lease Protection Act in 1981 began to change public involvement or the principle of civil law. According to commentators, That is problems that the rental housing policy changes due to the change of the government and the changement of government's policy, but it is considered to be a very normal phenomenon accompanying the change of the regime. For most people, the government policy on rental housing must not set a goal to stabilize rental tenants' housing by fostering leasing companies. In the public interest theory, if we evaluate the law on rental housing, it can be said that it aimed to promote the stability of housing. In order to guarantee maximum profit and to increase the influence of regulators, the current law on lease housing has been opened to undermine the stability of housing that is the basis of national life and to make the best use of housing as a means of profit generation. Is the reality. The Moon Jae-in administration limited home mortgage loans to multi-homeowners with two or more houses through the September 13 measures in 2018, and succeeded in suppressing the real estate speculation of the gap investment method, which is a general form of private investment, but general private gap investors As a result of the donation, some houses were converted to sell-out, and the funds generated from this were converted into single-use housing demand, which led to the increase in apartment prices in Seoul, which led to the increase in apartment prices. These measures, presented as unmeasured by the Moon Jae-in administration and as symptomatic short-term prescriptions, will not be fundamentally solved. In order to eradicate real estate abnormalities and unearned income and stabilize housing, ① Policy direction linking education and real estate, ② Realization of public land prices, ③ Realization of holding tax, ④ Expansion of public lease housing, ⑤ Right up the sensitive rental market (Inducement of reporting to tenants), ⑥ Constitutionalization of housing rights and one-family housing principle through public debate; Various evaluation indicators in the public sector, including promotion of public officials, should be preceded or pursued at the same time.

Improvement Measures of the Act on Public Land Reservation

Lee,Heon-Seok | 2020, 89 | pp.61~80 | number of Cited : 2

The land problem is not likely to be solved easily despite of government's many-sided efforts. The need for reserving land by the public sector directly intervening in land market was continuously raised under understanding that existing regulation-focused measures have limits. The result of raising the issue was the introduction of 「Act on Public Land Reservation」 (Law No 9439, Enacted 2009). However, the effect of Public Land Reservation Act is insufficient. Thus, what the reason is for being operated for different analysis. Problems may be due to the legal system, and Korea Land & Housing Corporation's internal operating conditions. This study's aims at the establish new direction by reviewing structures of general theory of the land baking systems and current Public Land Reservation Act from comprehensive angles to improve effectiveness of the land banking system, and suggested theory of legislative divided into legal aspect. The land banking system can augment housing stability and can strengthen industrial comparativeness by supplying housing and industrial land at a reasonable price. Land banking also makes it possible to control the land supply for public projects at the national level, but can also control land prices and prevent reckless speculation. Land banking is a very useful and direct land policy that can contribute to the smooth activation of public projects and prevent the development returns from becoming private. It is too early to asses the effects of land reservation system since the system is only just been introduced but the system can be regarded as significantly meaningful changes in policy for solving chronic land problems. There is always possibility that the land reservation system may not perform its role be cause of various problems mentioned from the above despite expectations on the land reservation system. It is believed that the establishment of identity of land reservation system by the establishment of relationship with close system and stable operation of system through legislative controls are the conditions necessary for long-term table operation of the land reservation system to contribute in solving the problems of land.

A Study on the Legal Role of the Architecture Committee on Building Permission

Han Sang Hoon | 2020, 89 | pp.81~98 | number of Cited : 2

Architecture is an activity for constructing living environment essential for enjoying people’s healthy and pleasant life. Architecture forms spatial system for the society regardless of time and places. Space is naturally social and society is based on spatial system. Therefore, we need a legal system for encouraging and protecting public value of architectural activity in our society. But current building code runs under unitary condition and building permission process is unclear due to the frequent requests from architectural committee members. Because of these problems civil complaints for building permission increase dramatically recent days. To cope with these problems government implements various administrative efforts especially for the building permission affairs. However, despite of the government’s efforts field architecture considers the current architecture approving process as a rating system determined by committee members’ arbitrary decision. And they insist that it is necessary to abolish the current architecture approving process and to import architectural report system in order to encourage and protect public value of architectural activity in our society. Based on these circumstances this study examines roles of architectural committee in terms of the architecture approving and architectural reporting from architectural law’s perspective and provides future research direction for compromising issues related architecture approving and architectural reporting process. This study finds that architectural committee members exercise a quasi-judicial role in maintenance of order for architectural activities both in private and public sectors despite its weak legal stability. Finally, this study concludes that it is necessary to conduct co-work with architectural fields to solve current problems related to architecture approving process and enhance the positive role and function of architectural committee.

A Study on the Use and Compensation of Underground Land in Japan

Cholho Choi | 2020, 89 | pp.99~118 | number of Cited : 3

In the case of the construction of a tunnel for the construction of a road in the basement of the land, what compensation is reasonable in view of the preservation of the road structure on the ground where the tunnel is laid and due compensation to the landowner. The issue relates to how far land ownership is effective in the use of underground land. First of all, Article 207 of the Japanese Civil Code stipulates that "the land falls within the limits of the statute to the upper and lower levels of the land," and since the clause does not limit the scope of "Shangha," it can be interpreted that the power of land ownership goes to almost limitless underground. In addition to Article 207 of the Civil Act, laws restricting land ownership include the Urban Planning Act, the Building Standards Act, the Farmland Act, the Mining Act, and the Hot Water Act. The depth of depth that can be used underground will be determined in consideration of the situation in the region, which is also called "limit depth" in practice in Japan. In general, the development potential of land is classified in depth according to the potential of land development, but areas with high development potential, such as housing sites, are subject to compensation by viewing the depth up to 20 meters below ground level as the limit depth. In the judgment of the compensation target in the underground road project, the limit depth is set at 40m in reference to Article 2 subparagraph 1 of the Deep depth land' Use Act and Article 1 of the Enforcement Decree as there is no use of land exceeding 40 m below ground, considering the future availability and the surrounding conditions. In conclusion, landowners need to be compensated because less than 40meters from the surface becomes a critical subdivision, allowing them to use as roads without compensation, thus falling under the ‘limit depth’ that is available to landowners up to 40 meters below the surface.

A Study on the Division of Roles between Public Sector and Private Sector in PFI - Focused on the Network Theory and Guarantee State(Gewährleistungsstaat Theorie)’s Perspective -

Hwang Jihye | 2020, 89 | pp.119~145 | number of Cited : 8

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To perform government's public service in contemporary age, government's(public sector) cooperation with private sector is demanded. Following changes of forms and ways in performing public service, Network Theory(which means more closer relationship between public sector and private sector) has been discussed recently. When public service is provided through privatized ways("privatization", "Privatisierung"), Guarantee State Theory(Gewährleistungsstaat Theorie) that the state has responsibility to guarantee good quality of public service has been discussed recently in the academic society. From the new perspective provided by Network Theory & Guarantee State Theory, PFI is most needed to induce private capital & to arrange Social Overhead Capital(SOC). In Korea, PFI is expending because of government's financial limitation. Network Theory and Guarantee State Theory’s view is helpful in this situation. For this reason, the writer suggests how to improve PFI system based upon the Network Theory and Guarantee State Theory’s view. To improve PFI system, following two ways can be considered. First, to arrange PFI system which has been already available at the present. Second, to introduce new system of PFI. To arrange PFI system which has been already available, following three ways can be considered: ① clear division of responsibility between public sector and private sector, ② public sector's(states) right to demand to revise PFI contract, ③ state's right of termination of PFI contract for public interest. To introduce new system of PFI, two ways are reviewed. To give private sector the role of "facility manager" and to give administrative agency the role of "public manager". The former has the effect of strengthening responsibility for private sector, while the latter has the effect of supervising PFI effectively.

A Legal Review on the Operation for the Personal Air Vehicles in the City Areas

Seok,Ho-Young | 2020, 89 | pp.147~173 | number of Cited : 2

The Ministry of Land, Infrastructure and Transport and the Ministry of Industry and Trade said in September 2019 that they are going to establish and to operate ‘a Joint Government-Private Development Strategy Consultative Body’ for developing the future model of ‘Private Air Vehicle’ and for revitalizing the transportation industry, a new concept of air transport. The consultative body will promote joint efforts by industry experts, scholars and researchers in various fields, including aviation, automotive, battery, electric and electronic, transportation services, maintenance and infrastructure, while also promoting review of "personal aviation (PAV)" services such as development of core technologies and international joint development support for industrial ecosystems, support for improvement of performance and quality, and cooperation among civil forces. Hyundai Motor Co., Ltd. unveiled the concept model ‘S-A1’ of the ‘Private Air Vehicle (PAV)’ at the ‘CES 2020 Consumer Electronics Show 2020’ held on January 7, 2020, along with the unveiling of Hyundai Motor's ‘UAM: Urban Air Mobility’ system. Using ‘Private Air Mobility (UAM)’, ‘Private Airplane Mobility (PAV)’ aims to establish a future mobility ecosystem that allows users to move freely from ground-to-ground traffic jams within urban centers and directly to major facilities in urban areas after landing on the basis of ‘Mobility Transfer Point (HUB)’. If we look at the strategies announced by the government (the Ministry of Land, Transport, Trade, Industry and Energy) and companies (the Ministry of Trade, Industry and Energy) and Hyundai Motor (Hyundai Motor), we will expect that the future transportation in the city will be a "self-driving car" on the ground and a "personal airplane (PAV) flying in the air within the next 10 years. However, the implementation of related technologies, such as aviation, electronics, electricity, communications, maintenance, and other facilities such as transit points (HUB) will be critical in that the ‘UAM’ system is based on ‘Personal Air Mobility’ (PAV), but the top priority should be to review how to ensure that these Private Flights (PAVs) can move freely. In the case of self-driving cars, they can move on existing roads, but the use of existing roads is difficult in that ‘PAVs’ fly in the air, not on the ground. If this is not resolved in advance, the commercialization of the ‘urban air mobility’ system will be difficult in the future. Therefore, this paper focuses on the legal issues concerning the operation of ‘Private Air Vehicle (PAV)’ in city areas through a review of the facilities to be built for the commercialization of ‘Private Air Mobility(UAM)’ system and its moving space in urban areas, and intends to conduct a legal review of the improvement measures.

A Study on the Improvement of Collection and Transport Processing of Local Government Living Wastes

Park, Joo-Sun , Jang Kyo-Sik | 2020, 89 | pp.175~190 | number of Cited : 0

Advances in technology have always been linked to the birth of new waste. Chemical products such as plastics and vinyl will be strategic as garbage when they are used up, with the nation’s landfill being 322,269 tons per day, the nation’s waste generation and treatment status, and the 2017 landfill rate being four times that of Japan and 37 times that of Germany. The Ministry of Environment said the nation's landfill will be saturated in 2027, with no more places to reclaim waste. The collection and transport of such waste is currently handled through direct operation or consignment of local governments. However, since the cost calculation for the substitute contract for collecting and transporting household waste is defined by the services of each local government, and there is no standard for national unification at the central government level, there have been cases in which the costs of each local government are varied and over-calculated, and thus efficiency is suspected. In this paper, we propose the following improvement measures. First, a single local government should implement different types of operation by region so that it can continue to compare and supplement each other's merits and demerits, and second, the Ministry of Environment should prepare assessment standards and methods that can be applied in common nationwide so that the waste disposal companies are not in an exclusive position, and third, the standards of the collection time by region should be flexibly operated, as well as the defect of the weight of the envelope. Finally, for basic wage calculation, the Ministry of Environment, rather than the Construction Association’s commercial labor unit price, shall prepare the labor cost of the environment itself, and propose providing a fixed amount support for indirect labor costs among the provisions on the cost calculation method for the contract to collect and transport household waste. Through this, the government intends to seek ways to enhance the efficiency, expertise and economy of office consignment to the environmental sector of local governments.

Ein Vorschlag zur Versserung der Wohungsgesetzgebung und Wohnqualität

Yoon, Jinah | 2020, 89 | pp.191~211 | number of Cited : 11

A review of human dignity and its concepts

KIM MINBAE | 2020, 89 | pp.213~235 | number of Cited : 3

The concept of human dignity has played an important role in various areas. In particular, the historical lessons learned from totalitarianism have had a great influence on the Constitution and other countries since the end of World War II. It has greatly contributed to the prevention of cruel acts such as torture of humans and human experiments. Human dignity is also a historical concept in Germany that has been confirmed by historical experiences. It was emphasized that there was no need for further evidence in itself. However, the concept is ambiguous compared to the wide-ranging and often used human dignity. The ambiguity of the concept of human dignity is a target of criticism. It also takes a religious view of the divine nature, which is the basis of human dignity. Recently, advances in science and technology and biomedical science have been developing. It is leading to criticism of human dignity. At the bioethics level, there are also arguments that human dignity is useless. Then, why does traditional interpretations of human dignity conflict in modern society? Human dignity is also linked to birth, life and death. However, the concept of human dignity is ambiguous. The reason is that the human concept is ambiguous. A new interpretation of the concept of dignity emphasizes the individual ego and personality of the minority or the elderly. A new interpretation of human dignity presupposes specific differences and diversity between people. Therefore, they interpret problems that cannot be covered by traditional sense as individual dignity rather than human dignity. New interpretations of the concept of human dignity are emphasized in bioethics or biomedical science. Biomedical is a region of interest in which individual desires, choices and actions are greater than human beings or the whole. It is also related to the development of biomedical science to enable embryos, abortions, gene editing and human cloning through new concepts of dignity. Kant's Categorical Imperative does not prevent this situation from being promoted by biotechnology and biomedical science. Therefore, it is necessary to review various factors, such as uncertainty and imperfections, nature and chance, to complement the dignity of human beings suited to the new times. In this study, I would like to examine the concept and use of human dignity, the futility and usefulness of human dignity, and the necessity of rebuilding human dignity. I want to consider interpreting the human dignity raised in the bioethics. I would also like to explore ways of interpreting human dignity in a traditional way to maintain consistency in the field of biomedical science.

Eine Studie über die Verfassungswidrigkeit des Gesetz des nationalen intelligent Dienst Koreas

Shin, Okju | 2020, 89 | pp.237~259 | number of Cited : 1

Der nationale intelligent Dienst besitzt umfangreiche konzentrierte Macht. Er ist auch tätig bei breiter Staftatsermittelung im Zusammenhang der Staatssicherheit, Staatsgeheimniss, Anti-Kommunismus･Anti-Regierung und Agenturen nach dem §3 Abs. 1 Nr. 3 des Gesetz des nationale intelligent Dienstes. Die Gefahr besteht darin, dass der nationale intelligent Dienst sein Befugnis für Information und Ermitteln positiv und willkürlich für die Regierung missbrauchen kann. Die breite und konzentrierte Befugnisse und Tätigkeitsbereiche des nationalen intelligent Dienstes und dessen Direktors bereitet bezüglich der Missbrauchsgefahr Grundrechtsverletzungsrisiken, insbesondere das Recht auf informationelles Selbstbestimmungsrecht, Fernmeldegeheimnissewegen. Ein anderes Problem an Gesetzen liegt darin, dass in Gesetzen nur schwache Kontrolle über nationalen intelligent Dienst vorgesehen ist. Der Informationsausschuss des Parlmentes kann nur sehr begrenzt ihn kontrollieren. Die Sicherheitsüberprüfungsregelung ist im förmlichen und inhaltlichen sehr problematisch. Wegen der umfangreichen und unbestimmten Formulierung ist sie in der Praxis häufig missbraucht. Es ist schwer anzunehmen, dass aus § 3 Abs. 1 1. des Gesetz die Ermächtigung für die Sicherheitsüberprüpfung zu finden ist. Die Verletzung des Gesetzesvorbehaltes ist anzunehmen. Im Gesetz steht kein Wort von der Sicherheitsüberprüpfung und in unterer Verordnung und unterster Satzung befinden sich erweiterteter kerniger Inhalt der Sicherheitsüberprüpfung. Ohne gesetzliche Grundlage greiffen die Verordnung und die Satzung die informationelle Selbstbestimmungsrecht. Daher sind die Grudsätze des Rechtsstaatsprinzips wie Rechtsvorbehalt und der Grundsatz des blanken Ermächtigungsverbots und Eindeutigkeitsprinzip auch im Gesetz im Zusammenhang mit staatlichem Sicherheitsbereich zu achten. Der Untersuchung zufolge ist es aber herausgefunden, dass das Gesetz des nationalen intelligent Dienstes Grudsätze aus Rechtsstaatsprinzips nicht befolgen und dem Verhältnismässigkeitsprinzip zuwider verschiedene Grundrechte eingreiffen. Es ist notwendig, durch die Revision des Gesetz des nationale intelligent Dienstes das Organ neu zu gestalten. Die Tätigkeit ist mit anderen Organen zu teilen. Die Straftatermittelung und ausländischen Informationensammlung im Zusammenhang der Staatssicherheits müssen von der Tätigkeit des nationalen intelligent Dienstes getrennt werden. Umfangreiche Tätigkeitsbereichen bezüglich der inneren Sicherheitsformationen sinf verteilt werden. Im Gesetz muss die Bestimmung für die Sicherheitsüberprüpfung verankerht werden und nach dem Rechtsstaatsprinzip ermächtigt werden.

A Legal and Institutional Study on Child Abuse - Focusing on Daycare Center -

Oh Sam Gwang | 2020, 89 | pp.261~278 | number of Cited : 4

Child abuse has occurred in various places and spaces including homes, daycare centers, kindergartens, schools and child protection institutions, and there are increasingly sophisticated and diversified types of abuse. Furthermore, it's easy to conceal it because it is mostly conducted by acquaintances, and it's actually quite difficult for abused children to make it known and protect themselves on their own since they aren't yet grown up physically and mentally. Meanwhile, child abuse hasn't been viewed as a crime for these reasons as long as it is not a serious case, but there is now a consensus that child abuse is a crime which must no longer be neglected but be subject to strict punishment on account of various recent abuse incidents, especially, death cases. In addition, child abuse incidents that have lately taken place in daycare centers raises awareness of the gravity of this issue, and it's now required to take actions against it. There are cases that the stress or heavy workload of daycare center teachers is followed by abuse, which is the biggest cause. Better treatment for childcare teachers, the introduction of psychotherapy programs and the expanded accountability of the childcare staff are all required to release their job stress to create more efficient chidcare environments to increase the efficiency of childcare services. To strengthen the child protection system, all authorities concerned should join forces, and a senior teacher system for children's rights should be expanded nationwide to put more intensive efforts into the prevention of the abuse of infants and preschoolers. Children's rights should be guaranteed against any kind of discrimination or punishment, and our society should make efforts to protect children's rights as much as possible with interest because their interests should be the top priority for every activity related to them.

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Public Land Law Review 2023 KCI Impact Factor : 1.14

2020, Vol.89, No.