2020, Vol.90, No.

A Legal Study on the Compensation of unlicensed Buildings in Eminent Domain

KANG, HYUN HO | 2020, 90 | pp.1~21 | number of Cited : 0

Although efforts are made nationwidely, nonetheless, unlicensed buildings are still emerging. When the unlicensed building is subject to eminant domain when carrying out public works, the Korean Land Compensation Law compensates the unlicensed building itself as obstacles. However, there is no clear regulation regarding compensation for the site where unlicensed buildings are located. Usually, land transformation of form and nature is performed in the process of building an unlicensed building. Therefore, unlicensed buildings are often built in paddy, field or in forest. In the case of legalization of unlicensed buildings in relation to compensation for unlicensed buildings, the floor area in which the unlicensed buildings are located was compensated by pointing to “building site”. Therefore, the extent to which the floor area of an unlicensed building is recognized has caused a large change in the calculation of the compensation amount. In calculating the floor area of an unlicensed building, until now, the dominant views have been the theory of limited floor area or the theory of current area standard, but these views are uncertain in terms of irrationality about the building ledger or current survey when the area is recognized as the floor area. In addition, there may be an irrationality that, if only relying on the size of the building area at the time of the construction of an unlicensed building, a greater reward is given to those who have committed a lot of illegality in the past. Therefore, when considering the factors that can be considered in the compensation of unlicensed buildings comprehensively, the theory of reverse estimation of floor area is most reasonable. In addition, it is necessary to make legal arrangements not to produce as much as possible unlicensed buildings in the future, and to make appropriate compensation for unlicensed buildings that have inevitably occurred by comprehensively considering various circumstances.

The Institutional Improvement Measures for Revitalization ofSmall-Scale Housing Improvement Project

Pilkyu Cho , Kim， Eun-You | 2020, 90 | pp.23~46 | number of Cited : 8

Study on infringement of solar reflected light and security of housing environment right

KIM, NAM WOOK | 2020, 90 | pp.47~69 | number of Cited : 4

Residential area is transformed into commercial area by urban planning based on urban development, and it is constructed and constructed with highly reflective full glass on the outer wall of a high-rise building to develop scientific building technology and aesthetic cityscape and natural landscape ing. Solar power systems are also increasing on buildings and land to reduce the effects of greenhouse gases and respond to climate change. Due to the strong reflection of sunlight from the entire glass of the building's outer walls and the solar panels, nearby homes could interfere with or damage daily living and violate the constitutionally guaranteed environmental rights of homes. , This is the reality that legal disputes testify, The Light Pollution Prevention Law has been enacted and enforced to prevent the pollution of the light environment due to excessive artificial lighting. In addition to the fact that there is no standard for building, there is no Building Standard Law and no restrictions on the reflectance of building exterior materials. Previous studies have focused on tolerance limits, claims for damages, and injunctions for infringement of the sun's reflected light. Therefore, the significance and legal nature of solar reflected light, the main status of the Korean solar reflected light infringement case, legislative examples for protection of foreign solar reflected light infringement, and the permissible limit are examined. In addition, the proposal to improve the legislation to secure the environmental rights of the housing, the filing of a lawsuit to revoke the building permit, and the issue of eligibility for plaintiffs must be guaranteed by considering the issue of the right to claim administrative intervention, by examining the constitutional rights of the housing environment. Of course, in a comfortable and healthy living space, human dignity and value are guaranteed and the right to pursue happiness is guaranteed.

A Study on the Improvement of Redevelopment Housing Tenants Compensation System

Kim, Jin-Soo | 2020, 90 | pp.71~93 | number of Cited : 2

In order to derive problems with the housing tenant compensation system of the current redevelopment project and analyze the improvement plan empirically from January 10, 2020 to March 30, 2020, a survey was conducted jointly with Konkuk University's Urban Administrative Research Institute on redevelopment members, tenants, government officials, experts, designers, and contractors. According to the analysis, the biggest problems of the housing tenant compensation system for redevelopment projects were the lack of public role and management (average 3.61), lack of information disclosure (average 3.31), absence of measures such as temporary migrant facilities (average 3.22), deprivation of opportunities to participate in the tenant project process (average 3.17), and low compensation amount (average 3.16). As a specific problem with the system, tenants recognized the "low compensation amount" as the largest (4.53) while union members (1.91) and suppliers (2.35) were the lowest. It is analyzed that tenants are dissatisfied with the current housing tenant compensation system, and members recognize it as a burden. In addition, public officials were the least aware of "public roles and lack of management," while union members (3.87), suppliers (3.80), and experts (3.73) were the highest problems, and tenants were also recognized at a high level (4.36). It was analyzed that all groups, except public officials, demanded a public role in the housing tenant compensation system. As can be seen in the analysis of job-specific perceptions of problems with the housing tenant compensation system in redevelopment projects, tenants are dissatisfied with the "low compensation amount" (4.53), while union members (1.91) and suppliers (2.35) recognize it as a burden, requiring appropriate compromises and solutions. As a result of the empirical analysis of the improvement of the redevelopment housing tenant compensation system, there is a need to improve the housing tenant compensation system (3.05), and the important improvements are "increase the role of the public" (3.66), "expansion of information disclosure to housing tenants" (3.29), "preparation of relocation measures such as temporary facilities" (3.14), and "expanding opportunities for participation in the tax collector's business" (3.13). The key tasks of improving the housing tenant compensation system can be summarized as the need to increase the role of the public and increase the amount of compensation. The group of suppliers (3.84) recognized the increase in public role, and the group of members (3.89), tenants (4.36), and experts (3.74) recognized the increase in public role to the highest level. Therefore, it is necessary to expand the role and organization of the current Urban Dispute Mediation Committee and to effectively improve the mediation procedures and adjustment period, and strengthen the public role by actively intervening in disputes and conflicts in redevelopment projects. In addition, as suggested by the expert group (48.1%) and the partner group (46.2%) in the empirical survey analysis, it is reasonable to revise the plan to create a tenant measure for the purpose of using the readjustment fund under Article 126 (3) of the Urban Renewal Act by paying 50 percent of the public using the union's project cost and urban readjustment fund.

The Institutional Improvement Measures for Revitalization ofSmall-Scale Housing Improvement Project

shin hyunggoo , Kim, Sang-Kyum | 2020, 90 | pp.95~120 | number of Cited : 9

The fundamental right that is important to humans after modern civil society is property rights. With the formation of a civil society based on personal freedom, anyone can have private property, and the right to property has become the basic human right. Property rights are necessary for consciousness that must be solved by human beings, and have become essential rights for human life in order to live a human life. Property rights began to be guaranteed in the realm of the Constitution, as specified in the French Declaration of Human Rights in 1789 and Article 1 of the United States Federal Constitution in 1791. Korea has also guaranteed property rights since the 1948 Constitution. The current constitution stipulates the protection of private property systems and property rights in Article 23, paragraph 1, and adopts legalism for its content and limitations. In addition, Article 23 (2) of the Constitution stipulates social redemption in the exercise of property rights, and Article 3 provides for the public acceptance system of property rights due to public necessity. In addition, Article 22 (2) of the Constitution provides grounds for intellectual property rights. Restrictions on property rights are made to allow public acceptance when the standard of public necessity is met, and to compensate. The restriction of property rights had already begun in the French Declaration of Human Rights in 1789. In 1919, the German Constitution of Weimar introduced social basic rights and established social restrictions on property rights as a prestige. The Korean Constitution also accepted this in the process of counting the German Constitution. In particular, property rights directly affect people's lives, and unlike other liberties, they are limited not only in the provision of property rights in the Constitution, but also in the provisions of the provisions of Article 37, Paragraph 2 of the Constitution. The concept of public ownership of land, which began due to the rapid rise in land prices, was discussed several times, and three related laws were enacted. However, with the exception of the Development Profit Recovery Act, the rest of the laws were decided by the Constitutional Court as unconstitutional or inconsistent. However, the concept of land publicity, which emerged as a countermeasure against repeated real estate speculation and rapid rise in land prices, is gradually spreading. This is also linked to the tendency to strengthen the social redemption of property rights. In addition, the future of property rights shows that the concept is shifting from ownership to use due to the revitalization of the shared economy, along with the expansion of the domain of intellectual property rights.

A Legal Study on the Improvement of the Seal System under the Act on Special Measures for the Registration of Real Estate

Seok,Ho-Young | 2020, 90 | pp.121~152 | number of Cited : 2

Under the current Act on Special Measures for Registration of Real Estate, the seal system requires a person to apply for a transfer of real estate ownership and directly regulates various expedient or illegal acts of applying for false or insolvent registration used as a means of real estate speculation or avoiding transaction restrictions to curb real estate speculation, so that the person who enters into a contract to transfer real estate ownership to establish a sound real estate transaction order by matching the details of the registered property and the actual transactions. Meanwhile, the Report System on Real Estate Transactions under the Act on Report on Real Estate Transactions, etc. is also being operated, and the Report System on Real Estate Transactions, enacted for the purpose of establishing the transparent report system and contributing to the national economy by prescribing the matters concerning the report and permit on the real estate transactions, etc. It currently overlaps with the seal system under the Act on Special Measures for Registration of Real Estate. Although the legislative purpose at the time of the introduction of the seal system under the Act on Special Measures for Registration of Real Estate is still reasonable, it will be necessary to review the improvement of the seal system under the Act on Special Measures for Registration of Real Estate, given that other similar systems under the jurisdiction of the Ministry of Land, Infrastructure and Transport, called the Report System on the Real State Transactions, exist and that institutional improvements are required for the seal system itself. Therefore, this paper will review the overlaps with the similar system through reviewing the seal system under the "the Act on Special Measures for Registration of Real Estate" and to present improvement measures for the efficient operation of the seal system under the Act on Special Measures for Registration of Real Estate".

Abuse and Control of the Right to claim information disclose - Focusing on Practice -

Cheong, Sa Eon | 2020, 90 | pp.153~171 | number of Cited : 1

Problems and Improvements of the Living SOC

cho jin woo | 2020, 90 | pp.173~198 | number of Cited : 8

The SOC project, which has been promoted as a national center, has been the basis for economic growth, and has now reached a high level in light of developed countries. However, the high total amount of social overhead capital is not properly felt by the residents in everyday life, but rather does not meet the changing needs of the residents. SOC facilities are inadequate for the needs of the residents, or the use of them is increasing due to aging, but local governments are not able to respond appropriately to the needs of the residents due to low financial independence. Accordingly, the government has recently promoted a living SOC policy centering on “everyday life” and “resident convenience”. Unlike the existing central government's one-sided planning, the living SOC is a project that promotes the local community based on the opinions of local residents by proposing the necessary social overhead capital. To this end, the government has established a three-year plan for living SOC, and a complex project is underway to bring synergy to one living SOC facility. In addition, the government subsidy rate has been increased for the living SOC project to promote the participation of local governments. However, the legal concept of living SOC is not clear, so there is a confusion with similar SOC concept. The concept of living SOC is set as a very broad concept, and confusion has arisen in the system between laws related to SOC business. In the case of Seoul, a separate living SOC plan has been established, but other local governments have not been able to promote Living SOC projects based on a comprehensive urban planning system. As a result, they are staying at the level of applying for business by simply gathering opinions of residents based on individual projects. In addition, there is no specific plan for the operation of living SOC facilities by focusing on the business selection. Above all, the Basic Act on Living SOC should be enacted to clarify the concept of Living SOC, clarify the prior demand survey for related projects, and exempt from related laws. In addition, in order to establish a comprehensive plan for living SOC, it is necessary to use the life zone plan more actively, as in Seoul, so that it can be systematically operated under the existing urban planning system. Comprehensive guidelines for status management, project selection, operation, etc. should be prepared for individual SOC projects. In the social SOC project, the participation of private capital should be expanded, and the foundation for residents to lead the operation should also be established. Living SOC is not an expansion of living convenience facilities, but a project led by residents to prepare and operate facilities closely related to living. It is necessary to prepare a system that can not only be a one-time living SOC project, but also promotes the convenience of the residents, thereby activating the local community.

The Study on the Regulation for Global Cloud Services - focused on the Legal Duty and Effective Administrative Measures -

Sung Bong Geun | 2020, 90 | pp.199~230 | number of Cited : 2

The corona virus is changing the global economy and society. One of them is the increased use of cloud services. Post-Corona society and government have become more dependent on cloud services. By the way around the cloud service, global cloud service companies use market dominant power to abuse or inadvertently cause damage to users, and even cross the border and cause conflicts with administrative bodies such as the state and local governments. Despite the recent legislation of Act on the Development of Cloud Computing and Protection of its Users, there is a wide range of things that have not yet been identified. The challenge remains how to fill the legislative gap successfully. The recent international trend of regulation is not only ‘high-level regulation’ but also ‘Self-Regulation’’ or “Regulated Self-Regulation' which has the characteristics of co-regulation. In this paper, however, the scope of the study is reduced, focusing on effective administrative measures for global cloud services as high-level regulations. In this regard, we reviewed the significance, legal obligations, and effective administrative measures in case of failure to comply with global cloud services. Therefore, it should be noted that this study stands on the premise to be used with self-regulation or regulated self-regulation. Administrative Penalties should be used for minor violations rather than Criminal Penalties. However, there is also a challenge in the market for Administrative Penalties. Act on the Regulation of Violations of Public Order and the legislative system of Act on the Development of Cloud Computing and Protection of its Users should be maintained as general-concrete legislation system, but the specific and individual contents of the penalty shall be legislated and applied differently in accordance with the peculiar nature. In addition, I believe that we should not only impose penalties but also combine other effective means without departing from the principle of proportionality. However, in order for the effect to be a real success, it is very important to use new penalties to eliminate illegal profits. It is also necessary to raise the new penalty amount to an effective level. Furthermore, for global cloud companies, as shown in Europe, naming global companies in the science and technology market and giving them shyness and shaming by indicating the violations are more effective. Therefore, it is necessary to actively use public announcements in administrative law. In order for the government's regulation of this market to be constitutional and justify, without under- or over-regulation, it is necessary to apply and comply with the principle of proportionality.

Suggestions for a comprehensive review of the introduction of the autonomous police system

WON JUNG KIM | 2020, 90 | pp.231~250 | number of Cited : 5

In order for local autonomy to be settled systematically and to realize the welfare of residents, it is necessary to introduce an autonomous police system that can secure local safety. The autonomous police system is a system where local governments protect themselves through voluntary decision making by themselves. Local security can be secured if local governments take care of local safety at their own risk Discussion of the introduction of the autonomous police system to realize local autonomy continued, but the current government proposed to introduce the autonomous police system. The government-provided autonomous police system can be said to be a slightly developed form based on the autonomous police system implemented in Jeju Special Self-Governing Province. The autonomous police system is meaningful in that its institutional purpose is to provide security services so that residents can live in a safe community. The autonomous police system should interpret this from the standpoint of the institutional guarantee or inherent rights of local autonomy given in the Constitution to ensure the safety of the region. The rights guaranteed to the local governments provided by the Constitution are the total authority on autonomous affairs and the guarantee of local governments. Depending on the rights granted to these local governments, the autonomous police system should be introduced accordingly. The introduction of the autonomous police system should be implemented in terms of the rights of local governments given by the Constitution. The autonomous police system, which is the last system to complete local autonomy, should be introduced in accordance with the institutional purpose of local autonomy. In order for the autonomous police system to be settled properly, it is necessary to provide full security services to the residents by establishing it in full authority over police affairs and in all local governments. In addition, in order to secure the political neutrality of the autonomous police system, it should be institutionalized so that residents' intentions to the autonomous police committee can intervene. When the autonomous police system is properly established and implemented, institutional completion of local government can be achieved. Therefore, this study reviewed the proposed system from the standpoint that it is necessary to reset the autonomous police system through a review of the government's plans to introduce it.

A Comparative Study on the Legislative Policy of Fishery by-products in Korea and Japan

Kim, Dong-Ryun | 2020, 90 | pp.251~271 | number of Cited : 2

Korea is surrounded by the sea with three seashores of the four geographical directions, which provides abundant fishery resources. Though fishery products have precious source of protein, by-products are an industrial waste. Along with the increased consumption of fishery products, the volume of by-products is also increasing in the course of processing the fishery products. This raises a variety of problems such as stench, sewage, hindering people's health, increasing cost, etc. Recently, there are various efforts being made to recycle the fishery by-products to cope with the situation, Especially, clam shells are recycled as fish reef to improve the environments of fishing grounds, fertilizer, laver seed collector, etc. However, incomplete legislation on fishery by-products prevents the efficient management and utilization. In Japan, “Act on the management of waste” designates the by-products as waste. However, according to the “Act on the promotion of recycling of food circular resources”, fishery businesses over a certain size are obliged to register as the beginning point of recycling to separate and discharge the fishery by-products. Local governments are engaged in saving resources by establishing a recycling factory to recycle the by-products as raw materials for food, fertilizer, feed, etc. The act empowers local governments to lead the management of the by-products. As such, it is needed to make a legislation for efficient and reasonable recycling of fishery by-products by establishing (proposed) “Act on the management and utilization of fishery by-products”. Major contents may include providing clear basis on fishery by-products, establishing basic plan for fishery by-products, preparing utilization and management strategy for fishery by-products, and stipulating the method of public discharge of fishery by-products. It is a waste if you dump it, but it is a resource if you recycle it. Fishery by-products are wastes if wasted, but can be a great resources if recycled.

Basic Principles of the Election System and Reform Measures of the Public Official Election Act

Moon-Hyun Koh | 2020, 90 | pp.273~299 | number of Cited : 4

Despite the COVID-19 emergency that hit the world, the 21st National Assembly election was completed without a hitch, and the world is paying attention to the achievements of the Republic of Korea. The ruling party, the winner of the general elections, has gained momentum to push ahead with its reform agenda based on public support, while the defeated Future United Party and others are in a panic, and the party should be reorganized by analyzing the cause of the election defeat quickly. The ruling and opposition parties should fully analyze the public's intentions in the upcoming general elections and make political reforms based on them to pave the way for a balanced Korea. Reform of the electoral system, which has been in trouble in the 21st general election, is very important and urgent. Here, the political reform tasks under the Public Official Election Act to be accomplished in the 21st National Assembly are as follows. At the heart of the reform debate are reform of the current majority-representative system in favor of the majority party, the direction of future reform on the current quasi-linked proportional representation system, improvement of the fixed-list party list system and relaxation of quorum requirements of a parliamentary negotiation body. First of all, the current majority representation system of the elected district system should be reformed and changed to a minority representation system of the mid- and large-scale constituencies. In the 21st general elections, the Yeongnam-based Future United Party and the Honam-based Democratic Party swept the region, deepening regional leanings compared to the 20th general elections. The current system of majority representation in the two major parties based in Yeongnam and Honam should be reformed to reduce the number of wasted votes and change to a minority representation system in which minorities can be elected as representatives. To this end, the Public Official Election Act should be revised in the 21st National Assembly to prepare for an institutional framework to represent the interests of minorities. Second, the direction of future reform on the current quasi-linked proportional representation system needs to be focused on curbing the emergence of satellite political parties in the semi-linked system. As a way to block the emergence of satellite parties, the proposed state election model in Germany can be adopted as an example. The Bavarian state election system, which is being linked, adopts a method of determining the seats of a political party as a result of the sum of regional and party votes. The introduction of this method will reduce the chances of the emergence of satellite political parties because it will be difficult to secure seats as expected by the parent political party that established the satellite party or the satellite political party. Third, the proportional representation parliamentary elections based on the current fixed-list party list system should be revised to a variable-list party registry system. The fixed-list party list system allows voters to vote only in favor of the party list set by the leaders of each party when preparing the proportional representation list in each party, and it cannot affect the order of proportional representation lists at all. Therefore, by exploiting these blind spots, when ranking proportional representation candidates at the head of each political party, candidates who paid more illegal contribution to the party than candidates' abilities or qualities have been placed in the top ranks of the party list. Now, the government should boldly correct such abuses and adopt a variable list proportional representation system that allows voters to change all the rankings of proportional representation lists presented by political parties. If this happens, even if a candidate is placed at the top of the proportional representation list drawn up by each party, voters can push him or her to the bottom of the proportional representation list because he or she does not have ability even if he or she is a close aide to the party leader or even if he or she is placed at the top of the list through paying a large amount of money for nomination. As a result, even the first candidate placed at the top of the party list cannot be certain that the final election results will remain the same, so there will be refusal to pay illegal contribution or no blind loyalty to the party leader. This would allow the election revolution to be achieved by clearing away the evils of the nomination fund and the evils of the politics of close aides. Fourth, relaxation of quorum requirements of a parliamentary negotiation body, which currently requires 20 lawmakers from the same party, should be eased to five so as to properly reflect diversified interests. If the current requirement of 20 lawmakers is not eased, it will not be easy for a party that can represent a third minority interest, and as a result, it will be difficult to become a political system that fully reflects the public's will. Based on the above-mentioned improvements, we expect politicians from both the ruling and opposition parties to reform the electoral system in line with the spirit of the times and the values of the Constitution to show the level of politics worthy of the national prestige of the Republic of Korea by wisely coping with the COVID-19.

KJCKorea
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Public Land Law Review 2023 KCI Impact Factor : 1.14

2020, Vol.90, No.