Pub Date : 2023-07-31DOI: 10.53066/mlr.2023.22.1.143
Hyemyeong Jang
Since 2004, when discussions on for-profit hospitals began in earnest, there has been a sharp controversy over whether or not to grant permission. Greenland International Medical Center is the first case of dispute over permission to open a for-profit hospital, and it is meaningful in that it explains the relationship between Korea’s medical system and permission for a for-profit hospital. In this case, permission for a for-profit hospital was granted on the condition that treatment was prohibited for locals, and the possibility of adding such a subordiante clause depended on whether the permission for a for-profit hospital was a permission or a patent. In the first trial, it was judged to the effect that the permission of a for-profit hospital obtained by attaching a subordiante clause was illegal, even though it was regarded as the permission of a medical institution and a subordiante clause could not be attached to an act of detention or discretionary detention. On the other hand, in the second trial, it was judged that the license for a for-profit hospital should be regarded as patent in Korea’s medical system, which adopts the mandatory designation system for medical institutions, so a subordiante clause could also be attached, and the subordiante clause restricting the treatment of locals was legitimate. However, if a for-profit hospital is recognized as an exception in the medical system of Korea, which adpots the mandatory designation system for medical institutions, there is room for the nature of the permission to be judged differently. In cases where interest are acute, such as this case, deliberative democracy is being adopted, and this deliberative democracy is considered a desirable direction for modern administration in that in enables administrative agencies to listen to various opinions in exercising their discretionary power. However, deliberative democracy should not be completely relied on for legal judgements, and administrative agencies should not neglect their duty to make policy judgements by relying on deliberative democracy. In addition, issues that require policy discussion must be clear, and intersted parties need to be appropriately selected so that discussions can take place even at the national level.
{"title":"Analysis of all Issues Related to the Greenland International Medical Center Case","authors":"Hyemyeong Jang","doi":"10.53066/mlr.2023.22.1.143","DOIUrl":"https://doi.org/10.53066/mlr.2023.22.1.143","url":null,"abstract":"Since 2004, when discussions on for-profit hospitals began in earnest, there has been a sharp controversy over whether or not to grant permission. Greenland International Medical Center is the first case of dispute over permission to open a for-profit hospital, and it is meaningful in that it explains the relationship between Korea’s medical system and permission for a for-profit hospital. In this case, permission for a for-profit hospital was granted on the condition that treatment was prohibited for locals, and the possibility of adding such a subordiante clause depended on whether the permission for a for-profit hospital was a permission or a patent. In the first trial, it was judged to the effect that the permission of a for-profit hospital obtained by attaching a subordiante clause was illegal, even though it was regarded as the permission of a medical institution and a subordiante clause could not be attached to an act of detention or discretionary detention. On the other hand, in the second trial, it was judged that the license for a for-profit hospital should be regarded as patent in Korea’s medical system, which adopts the mandatory designation system for medical institutions, so a subordiante clause could also be attached, and the subordiante clause restricting the treatment of locals was legitimate. However, if a for-profit hospital is recognized as an exception in the medical system of Korea, which adpots the mandatory designation system for medical institutions, there is room for the nature of the permission to be judged differently. In cases where interest are acute, such as this case, deliberative democracy is being adopted, and this deliberative democracy is considered a desirable direction for modern administration in that in enables administrative agencies to listen to various opinions in exercising their discretionary power. However, deliberative democracy should not be completely relied on for legal judgements, and administrative agencies should not neglect their duty to make policy judgements by relying on deliberative democracy. In addition, issues that require policy discussion must be clear, and intersted parties need to be appropriately selected so that discussions can take place even at the national level.","PeriodicalId":398961,"journal":{"name":"Institute of Legal Myongji University","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128650312","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-31DOI: 10.53066/mlr.2023.22.1.93
Min-woong Kim
With the advent of the non-face-to-face digital era due to the spread and prolonged spread of COVID-19, interest in metaverse, which corresponds to virtual space, has soared, and various platforms have emerged using metaverse-related technologies. As for the design related to the metaverse, the Design Protection Law did not provide a separate regulation for graphic design at the time, so it was protected as a partial design expressed on the part of the product. With the revision of the Design Protection Law in 2021, the concept of graphic emerged. Under the revised law, graphics cannot be an effective means of protection for various newly emerging graphic designs because they contain only graphics that are used or functionally used to operate devices. In a situation where new types of graphic design are continuously created, only the most basic form of graphic design is protected, so there are still many graphic designs that are excluded from protection. In particular, since the design ceated in the virtual world based on the real world motif is very similar in appearance to the design in the real world, the graphic design protection system under the current law can be a major obstacle to protecting the design created in the virtual space and preventing the rights of others. Therefore, this paper aims to categorize metaverse through prior research, investigate the protection system of graphic design under the current law, and present the direction of improvement of the graphic design system for graphic protection in the virtual world most similar to the real world.
{"title":"A Study on the Legal Protection of Graphic Design on the Metaverse Platform","authors":"Min-woong Kim","doi":"10.53066/mlr.2023.22.1.93","DOIUrl":"https://doi.org/10.53066/mlr.2023.22.1.93","url":null,"abstract":"With the advent of the non-face-to-face digital era due to the spread and prolonged spread of COVID-19, interest in metaverse, which corresponds to virtual space, has soared, and various platforms have emerged using metaverse-related technologies. As for the design related to the metaverse, the Design Protection Law did not provide a separate regulation for graphic design at the time, so it was protected as a partial design expressed on the part of the product. With the revision of the Design Protection Law in 2021, the concept of graphic emerged. Under the revised law, graphics cannot be an effective means of protection for various newly emerging graphic designs because they contain only graphics that are used or functionally used to operate devices. In a situation where new types of graphic design are continuously created, only the most basic form of graphic design is protected, so there are still many graphic designs that are excluded from protection. In particular, since the design ceated in the virtual world based on the real world motif is very similar in appearance to the design in the real world, the graphic design protection system under the current law can be a major obstacle to protecting the design created in the virtual space and preventing the rights of others. Therefore, this paper aims to categorize metaverse through prior research, investigate the protection system of graphic design under the current law, and present the direction of improvement of the graphic design system for graphic protection in the virtual world most similar to the real world.","PeriodicalId":398961,"journal":{"name":"Institute of Legal Myongji University","volume":"167 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124662106","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-31DOI: 10.53066/mlr.2023.22.1.1
Myungsu Hong, Soyeon Lee
The Korean Fair Trade Commission's 2019 decision on the merger of Oksusu and POOQ is important in that it dealt with the first merger between major OTTs, but it is also meaningful in that it dealt with merger in areas where rapid industrial structure changes are taking place. The Korean Fair Trade Commission distinguished the significance of the merger into horizontal and vertical aspects, and recognized competition restraints based on the fact that increased concentration by merger parties in the broadcasting content provision market can negatively affect competition between OTT operators. At this point, it is difficult to avoid the perception that the judgment at the time was inappropriate, considering the rapid growth of Netflix and the continuous decline in the integrated OTT share after the merger. However, it is not possible to make a negative assessment of the innocence just by failing to predict. But the lack of a detailed analysis of the transaction of video content needed to be supported in order to recognize competition restrictions in the vertical sector, as the US courts did in the AT&T and Time-Warner business combination case, sufficient understanding of the competition pattern between OTTs centered on original content and consideration of the industrial situation in which innovative changes are occurring may be a problem. These problems will need to be corrected in the regulation of merger that may occur in the field in the future.
{"title":"A Study on the Regulation of OTT Mergers under Competition Law","authors":"Myungsu Hong, Soyeon Lee","doi":"10.53066/mlr.2023.22.1.1","DOIUrl":"https://doi.org/10.53066/mlr.2023.22.1.1","url":null,"abstract":"The Korean Fair Trade Commission's 2019 decision on the merger of Oksusu and POOQ is important in that it dealt with the first merger between major OTTs, but it is also meaningful in that it dealt with merger in areas where rapid industrial structure changes are taking place. The Korean Fair Trade Commission distinguished the significance of the merger into horizontal and vertical aspects, and recognized competition restraints based on the fact that increased concentration by merger parties in the broadcasting content provision market can negatively affect competition between OTT operators. At this point, it is difficult to avoid the perception that the judgment at the time was inappropriate, considering the rapid growth of Netflix and the continuous decline in the integrated OTT share after the merger. However, it is not possible to make a negative assessment of the innocence just by failing to predict. But the lack of a detailed analysis of the transaction of video content needed to be supported in order to recognize competition restrictions in the vertical sector, as the US courts did in the AT&T and Time-Warner business combination case, sufficient understanding of the competition pattern between OTTs centered on original content and consideration of the industrial situation in which innovative changes are occurring may be a problem. These problems will need to be corrected in the regulation of merger that may occur in the field in the future.","PeriodicalId":398961,"journal":{"name":"Institute of Legal Myongji University","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131883721","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-31DOI: 10.53066/mlr.2023.22.1.117
Y. shin
Act On Special Cases concerning the Punishment of Sexual Violence Crimes Article 13 (Obscene Acts by Using Means of Communication) A person who sends another person any words, sounds, writings, pictures, images, or other things that may cause a sense of sexual shame or aversion by telephone, mail, computer, or other means of communication, with intent to arouse or satisfy his/her own or the other person's sexual urges, shall be punished by imprisonment with labor for not more than two years or by a fine not exceeding 20 million won. Today, with the development of science and technology, smartphone use and mobile environment become common, and new types of crimes such as obscene behavior using communication media are frequently punished for obscene use of communication media under Article 13 of the Sexual Violence Punishment Act. The protective legal interest of this crime is to guarantee the right not to encounter pictures that cause sexual shame against the right to sexual self-determination, the protection of sexual self-determination and general personal rights, and the establishment of healthy sexual customs in society. The constituent requirement of obscene use of communication media is to “reach words, sounds, writings, pictures, videos, or objects that cause sexual shame or disgust” through phone calls, mail, computers, or other communication media for the purpose of inducing or satisfying sexual desires of oneself or others. Here, since the crime of obscene use of communication media is not intended to punish the general pornography regardless of means, it is required to use communication media.Due to these regulations, it is not punishable by the principal crime if the act of “directly” reaching the other party or using “other indirect means (quick service, delivery, etc.) Considering that it is more important for the victim to receive sexual humiliation than to use a means of communication media, legislatively, it is possible to consider how to punish the victim regardless of whether he or she uses a non-communication media by deleting the part “through phone, mail, computer, or other communication media.” In addition, since it must be reached by the other party, it is included not only in direct contact with a specific other party, but also in a state where it can be recognized. Considering that the main protection law for obscene use of communication media is the right to sexual self-determination and that it can fall under the constituent requirements regardless of the consent or consent of the other party (victim), legislatively, it is necessary to define it as “a person who has reached the other party's will.” On the other hand, furthermore, there should be a purpose to induce or satisfy the sexual desire of oneself or others. The “sexual desire” here includes the desire to obtain psychological satisfaction, and even if it is combined with anger, it should be said that it is not something to look at differently.
{"title":"Requirements for the establishment of Obscene Acts by Using Means of Communication under Act On Special Cases concerning the Punishment, etc. of Sexual Crimes","authors":"Y. shin","doi":"10.53066/mlr.2023.22.1.117","DOIUrl":"https://doi.org/10.53066/mlr.2023.22.1.117","url":null,"abstract":"Act On Special Cases concerning the Punishment of Sexual Violence Crimes Article 13 (Obscene Acts by Using Means of Communication) A person who sends another person any words, sounds, writings, pictures, images, or other things that may cause a sense of sexual shame or aversion by telephone, mail, computer, or other means of communication, with intent to arouse or satisfy his/her own or the other person's sexual urges, shall be punished by imprisonment with labor for not more than two years or by a fine not exceeding 20 million won. Today, with the development of science and technology, smartphone use and mobile environment become common, and new types of crimes such as obscene behavior using communication media are frequently punished for obscene use of communication media under Article 13 of the Sexual Violence Punishment Act. The protective legal interest of this crime is to guarantee the right not to encounter pictures that cause sexual shame against the right to sexual self-determination, the protection of sexual self-determination and general personal rights, and the establishment of healthy sexual customs in society. The constituent requirement of obscene use of communication media is to “reach words, sounds, writings, pictures, videos, or objects that cause sexual shame or disgust” through phone calls, mail, computers, or other communication media for the purpose of inducing or satisfying sexual desires of oneself or others. Here, since the crime of obscene use of communication media is not intended to punish the general pornography regardless of means, it is required to use communication media.Due to these regulations, it is not punishable by the principal crime if the act of “directly” reaching the other party or using “other indirect means (quick service, delivery, etc.) Considering that it is more important for the victim to receive sexual humiliation than to use a means of communication media, legislatively, it is possible to consider how to punish the victim regardless of whether he or she uses a non-communication media by deleting the part “through phone, mail, computer, or other communication media.” In addition, since it must be reached by the other party, it is included not only in direct contact with a specific other party, but also in a state where it can be recognized. Considering that the main protection law for obscene use of communication media is the right to sexual self-determination and that it can fall under the constituent requirements regardless of the consent or consent of the other party (victim), legislatively, it is necessary to define it as “a person who has reached the other party's will.” On the other hand, furthermore, there should be a purpose to induce or satisfy the sexual desire of oneself or others. The “sexual desire” here includes the desire to obtain psychological satisfaction, and even if it is combined with anger, it should be said that it is not something to look at differently.","PeriodicalId":398961,"journal":{"name":"Institute of Legal Myongji University","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127145600","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-31DOI: 10.53066/mlr.2023.22.1.45
Kiju Park, Dongho Shin
The social value of finance is that, as finance exists and develops, the imperfect real economy becomes less incomplete, resources are allocated more efficiently at lower costs, and the realm of the market economy expands, contributing to economic growth. Recently, finance is pioneering new services based on artificial intelligence and data and launching various financial products. It is also true that there are concerns about whether or not the ordinary people will be alienated from the essential social functions of finance, such as financing and lending, in this process. If finance is used as an easy real estate policy tool by regulators without a legal basis, as shown in the example of the mortgage loan system, and if finance becomes a 'playground tilted' in the process of income and asset formation where the unfair game operates, it will distort the distribution function of the economy and act as a cause of exacerbating social inequality. Fundamental right to finance is a constitutional norm and standard that enhances the social value and function of finance by these regulatory authorities, and can be a kind of social agreement that determines the content and direction of regulation within the constitutional values of the financial system. This study aims to establish the social value of finance and the legal concept of 'fundamental right to finance' based on the analysis of the institutional status and regulatory system of LTV, DTI, and DSR for mortgage loans implemented after the Moon Jae-in administration. Although finance provides a basic foundation for individual wealth formation in modern society, the reality is that it is not easy for ordinary people to fully enjoy the services provided by finance. From the point of view of economic democratization, discussions on financial democratization have been raised, and based on this, fundamental right to finance is mentioned in an abstract way, but it is also a reality that concrete research on this is insufficient. This study is expected to contribute to the discussion of fundamental right to finance based on the social value of finance in the future.
{"title":"A Study on the Concept of Fundamental Right to Finance to Realize the Social Value of Finance: Focusing on the Legal Issues of Mortgage Loan Regulation","authors":"Kiju Park, Dongho Shin","doi":"10.53066/mlr.2023.22.1.45","DOIUrl":"https://doi.org/10.53066/mlr.2023.22.1.45","url":null,"abstract":"The social value of finance is that, as finance exists and develops, the imperfect real economy becomes less incomplete, resources are allocated more efficiently at lower costs, and the realm of the market economy expands, contributing to economic growth. Recently, finance is pioneering new services based on artificial intelligence and data and launching various financial products. It is also true that there are concerns about whether or not the ordinary people will be alienated from the essential social functions of finance, such as financing and lending, in this process. If finance is used as an easy real estate policy tool by regulators without a legal basis, as shown in the example of the mortgage loan system, and if finance becomes a 'playground tilted' in the process of income and asset formation where the unfair game operates, it will distort the distribution function of the economy and act as a cause of exacerbating social inequality. Fundamental right to finance is a constitutional norm and standard that enhances the social value and function of finance by these regulatory authorities, and can be a kind of social agreement that determines the content and direction of regulation within the constitutional values of the financial system. This study aims to establish the social value of finance and the legal concept of 'fundamental right to finance' based on the analysis of the institutional status and regulatory system of LTV, DTI, and DSR for mortgage loans implemented after the Moon Jae-in administration. Although finance provides a basic foundation for individual wealth formation in modern society, the reality is that it is not easy for ordinary people to fully enjoy the services provided by finance. From the point of view of economic democratization, discussions on financial democratization have been raised, and based on this, fundamental right to finance is mentioned in an abstract way, but it is also a reality that concrete research on this is insufficient. This study is expected to contribute to the discussion of fundamental right to finance based on the social value of finance in the future.","PeriodicalId":398961,"journal":{"name":"Institute of Legal Myongji University","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132408959","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-31DOI: 10.53066/mlr.2023.22.1.75
Yun-Yong Lee, M. Shin
A defense project contract has a number of different characteristics from a general national contract, such as a large amount of capital is invested and a long period of time from request to delivery. In the course of the implementation of the defense project contract, the contract partner's breach of contract and illegal acts appear in various forms. The act of earning profit by submitting false or other illegal cost calculation data is an act that undermines the principle of good faith and is subject to the return of unjust profit. However, although the principle on the recovery of unjust enrichment is stipulated in the Defense Acquisition Program Act, there is no clear regulation on detailed calculation methods or standards, so it is necessary to clarify the legal nature of unjust profit, specify the subject and scope, and establish clear standards for the calculation method. First of all, it is reasonable to view that the right to claim the return of unjust enrichment corresponds to the right to claim compensation for damages caused by default, and the legal nature of the additional charges is a penalty for breach of contract. However, since it is stipulated differently from the legal purpose of the recovering system for unjust enrichment, it is necessary to prevent confusion by amending the relevant provisions to compensate for the damages corresponding to the unjust enrichment. In addition, although the current regulation stipulates the recovery of unjust enrichment, there is no regulation on the calculation method of unjust enrichment, so there is room for dispute over this, so it is necessary to specify that the difference between the contract amount and the settlement cost is the unjust enrichment. On the other hand, according to the current Defense Acquisition Program Act, it is stipulated that unjust enrichment and additional charges be recovered simultaneously, but there is no regulation on exemption from additional charges. Even in the case of imposing an additional charge, it is necessary to ensure specific validity by imposing an additional charge of an amount smaller than the amount of unjust enrichment.
{"title":"A Study on the Improvement of the System for Recovering Unjust Enrichment in the Defense Acquisition Program Act","authors":"Yun-Yong Lee, M. Shin","doi":"10.53066/mlr.2023.22.1.75","DOIUrl":"https://doi.org/10.53066/mlr.2023.22.1.75","url":null,"abstract":"A defense project contract has a number of different characteristics from a general national contract, such as a large amount of capital is invested and a long period of time from request to delivery. In the course of the implementation of the defense project contract, the contract partner's breach of contract and illegal acts appear in various forms. The act of earning profit by submitting false or other illegal cost calculation data is an act that undermines the principle of good faith and is subject to the return of unjust profit. However, although the principle on the recovery of unjust enrichment is stipulated in the Defense Acquisition Program Act, there is no clear regulation on detailed calculation methods or standards, so it is necessary to clarify the legal nature of unjust profit, specify the subject and scope, and establish clear standards for the calculation method. First of all, it is reasonable to view that the right to claim the return of unjust enrichment corresponds to the right to claim compensation for damages caused by default, and the legal nature of the additional charges is a penalty for breach of contract. However, since it is stipulated differently from the legal purpose of the recovering system for unjust enrichment, it is necessary to prevent confusion by amending the relevant provisions to compensate for the damages corresponding to the unjust enrichment. In addition, although the current regulation stipulates the recovery of unjust enrichment, there is no regulation on the calculation method of unjust enrichment, so there is room for dispute over this, so it is necessary to specify that the difference between the contract amount and the settlement cost is the unjust enrichment. On the other hand, according to the current Defense Acquisition Program Act, it is stipulated that unjust enrichment and additional charges be recovered simultaneously, but there is no regulation on exemption from additional charges. Even in the case of imposing an additional charge, it is necessary to ensure specific validity by imposing an additional charge of an amount smaller than the amount of unjust enrichment.","PeriodicalId":398961,"journal":{"name":"Institute of Legal Myongji University","volume":"16 5","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"113932246","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-31DOI: 10.53066/mlr.2023.22.1.25
Ho-hyun Park, Dongwon Lee
The police is the government institution that considers the protection of people's lives, bodies and property as the most important task, but It is no exaggeration that past police organization were more faithful to their role as the handmaid of the government ruling over the people. However, the change of the times has led to change police organization, and furthermore, there have been continuous efforts to establish its role by itself. These changes make police organization recognize that the protection of people's human rights is their most important mission. While the police handles most of the criminal cases on the side of people, the prosecution exercises most of the authority in the criminal justice process. Prosecutors have been recognized as the principal investigators who instruct and order the police by being given authority over the entire criminal justice process, including the right to initiate an investigation, the right to terminate an investigation, the right to prosecute, and the right to claim a warrant. The police has expressed the need for a mutually equal and cooperative relationship with the prosecution rather than a top-down relationship, as a result of its efforts, the right to initiate an investigation was granted through amendments to the Criminal Procedure Act. Since then, with the revision of the Criminal Procedure Act, the Prosecutor's Office Act, and the Act on the Organization and Operation of National Police and Local Police, the police and the prosecution become a mutually cooperative relationship in substantial part. The police that had right to initiate an investigation, grants not only the primary right to terminate an investigation but also the right to terminate an investigation. In addition, anti-communist investigative functions which had been recognized as a unique task of the National Intelligence Service, was transferred to the police, and then it can have the most powerful authority after the establishment of it. When authority is concentrated in one institution, it might violate human rights of the people by abusing of its authority. In order that the police solve the problem of concentrated authority, the National Investigation Headquarters under the National Police Agency was established with the purpose of separating the administrative police and the judicial police. The National Investigation Headquarters functions as a control tower for investigations, instructing and supervising the chiefs of local police agencies in cities and provinces, and police officers in investigation-related departments. Because it was established under the National Police Agency rather than an independent agency, and the head of the headquarters is a lower rank officer than the Chief of the National Police Agency, it cannot be independently excluding instructions and orders of the Chief. In addition, the National Investigation Headquarters is established under the National Police Agency, so that the head of the headquar
{"title":"Discussion on establishing a reasonable role for National Office of Investigation through revision (proposal)","authors":"Ho-hyun Park, Dongwon Lee","doi":"10.53066/mlr.2023.22.1.25","DOIUrl":"https://doi.org/10.53066/mlr.2023.22.1.25","url":null,"abstract":"The police is the government institution that considers the protection of people's lives, bodies and property as the most important task, but It is no exaggeration that past police organization were more faithful to their role as the handmaid of the government ruling over the people. However, the change of the times has led to change police organization, and furthermore, there have been continuous efforts to establish its role by itself. These changes make police organization recognize that the protection of people's human rights is their most important mission. While the police handles most of the criminal cases on the side of people, the prosecution exercises most of the authority in the criminal justice process. Prosecutors have been recognized as the principal investigators who instruct and order the police by being given authority over the entire criminal justice process, including the right to initiate an investigation, the right to terminate an investigation, the right to prosecute, and the right to claim a warrant. The police has expressed the need for a mutually equal and cooperative relationship with the prosecution rather than a top-down relationship, as a result of its efforts, the right to initiate an investigation was granted through amendments to the Criminal Procedure Act. Since then, with the revision of the Criminal Procedure Act, the Prosecutor's Office Act, and the Act on the Organization and Operation of National Police and Local Police, the police and the prosecution become a mutually cooperative relationship in substantial part. The police that had right to initiate an investigation, grants not only the primary right to terminate an investigation but also the right to terminate an investigation. In addition, anti-communist investigative functions which had been recognized as a unique task of the National Intelligence Service, was transferred to the police, and then it can have the most powerful authority after the establishment of it. When authority is concentrated in one institution, it might violate human rights of the people by abusing of its authority. In order that the police solve the problem of concentrated authority, the National Investigation Headquarters under the National Police Agency was established with the purpose of separating the administrative police and the judicial police. The National Investigation Headquarters functions as a control tower for investigations, instructing and supervising the chiefs of local police agencies in cities and provinces, and police officers in investigation-related departments. Because it was established under the National Police Agency rather than an independent agency, and the head of the headquarters is a lower rank officer than the Chief of the National Police Agency, it cannot be independently excluding instructions and orders of the Chief. In addition, the National Investigation Headquarters is established under the National Police Agency, so that the head of the headquar","PeriodicalId":398961,"journal":{"name":"Institute of Legal Myongji University","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133476284","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-31DOI: 10.53066/mlr.2023.21.2.175
Mariko Nakamura
Japan introduced a protective measure for witnesses including victims to testify by closed circuit television through the amendment to the Code of Criminal Procedure in May 2000 to alleviate their psychological burden during testimony at trial. Its scope was expanded in June 2016 and is under consideration by one of the subcommittees of the Legislative Council of the Ministry of Justice for additional expansion at this writing in January 2023. Criminal defendants, on the other hand, have the right to examine all witnesses. There are discussions on whether the right is constitutionally affected by using closed circuit television. The Supreme Court of Japan ruled the then-provision constitutional in 2005 but it is necessary to carefully examine the meaning of “face-to-face confrontation” during testimony and the need to restrict the right. Therefore, this article considers what should be taken into account to allow witnesses to testify through closed circuit television with reference to Crawford v. Washington judged by the Supreme Court of the United States in 2004, which put great value on “face-to-face confrontation” in relation to the similar right as the Japanese one, and the subsequent discussions in the United States.
日本于2000年5月修订了《刑事诉讼法》，采取了一项保护措施，允许包括受害者在内的证人通过闭路电视作证，以减轻他们在审判中作证时的心理负担。其范围于2016年6月扩大，并于2023年1月由司法部立法会的一个小组委员会审议进一步扩大。另一方面，刑事被告有权询问所有证人。对于使用闭路电视是否会影响宪法上的权利，也有讨论。2005年，日本大法院对当时的规定做出了符合宪法的判决，但有必要仔细研究证词过程中“面对面对抗”的含义和限制该权利的必要性。因此，本文结合2004年美国最高法院判决的克劳福德诉华盛顿案(Crawford v. Washington)对与日本类似权利的“面对面对抗”的重视，以及随后在美国的讨论，探讨允许证人通过闭路电视作证应考虑的问题。
{"title":"Study on the Cross-Examination of Witnesses by Closed Circuit Television","authors":"Mariko Nakamura","doi":"10.53066/mlr.2023.21.2.175","DOIUrl":"https://doi.org/10.53066/mlr.2023.21.2.175","url":null,"abstract":"Japan introduced a protective measure for witnesses including victims to testify by closed circuit television through the amendment to the Code of Criminal Procedure in May 2000 to alleviate their psychological burden during testimony at trial. Its scope was expanded in June 2016 and is under consideration by one of the subcommittees of the Legislative Council of the Ministry of Justice for additional expansion at this writing in January 2023. \u0000Criminal defendants, on the other hand, have the right to examine all witnesses. There are discussions on whether the right is constitutionally affected by using closed circuit television. The Supreme Court of Japan ruled the then-provision constitutional in 2005 but it is necessary to carefully examine the meaning of “face-to-face confrontation” during testimony and the need to restrict the right. Therefore, this article considers what should be taken into account to allow witnesses to testify through closed circuit television with reference to Crawford v. Washington judged by the Supreme Court of the United States in 2004, which put great value on “face-to-face confrontation” in relation to the similar right as the Japanese one, and the subsequent discussions in the United States.","PeriodicalId":398961,"journal":{"name":"Institute of Legal Myongji University","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128802806","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-31DOI: 10.53066/mlr.2023.21.2.107
Insoo Yu, Yeonseung Ryu, J. Han, Sunhak Cho, Hye-Yung Shin
With the continuous development of modern society and economy, the people in the new era have greater aspirations for a better life. Tourism has become a kind of people's spiritual pursuit for a better life. At the same time, with the improvement of people's living standard and the change of consumption concept, the number of people who travel on ice and snow in winter and like ice and snow sports is increasing year by year. Under such an opportunity, the development and utilization of snow and ice resources has been the focus of the central and local governments for many years. The rapid development of our ice and snow industry is supported by the policies of the central and local governments. However, behind the rapid development of ice and snow industry, there are a series of problems and deficiencies that need to be solved urgently. The development of the snow and ice industry should be protected from several aspects--such as: the development and protection of snow and ice resources in accordance with the law, the establishment and improvement of laws and regulations for the development of the mass snow and ice industry, the clarification of the legal status of snow and ice resources, the improvement of the diversified dispute settlement mechanism, and the increase of citizen participation--so that the development and protection of snow and ice resources can achieve a win-win goal of economic and social benefits.
{"title":"Legislation Status and Recommendations of Cyber Security Law in Korea","authors":"Insoo Yu, Yeonseung Ryu, J. Han, Sunhak Cho, Hye-Yung Shin","doi":"10.53066/mlr.2023.21.2.107","DOIUrl":"https://doi.org/10.53066/mlr.2023.21.2.107","url":null,"abstract":"With the continuous development of modern society and economy, the people in the new era have greater aspirations for a better life. Tourism has become a kind of people's spiritual pursuit for a better life. At the same time, with the improvement of people's living standard and the change of consumption concept, the number of people who travel on ice and snow in winter and like ice and snow sports is increasing year by year. \u0000Under such an opportunity, the development and utilization of snow and ice resources has been the focus of the central and local governments for many years. The rapid development of our ice and snow industry is supported by the policies of the central and local governments. However, behind the rapid development of ice and snow industry, there are a series of problems and deficiencies that need to be solved urgently. \u0000The development of the snow and ice industry should be protected from several aspects--such as: the development and protection of snow and ice resources in accordance with the law, the establishment and improvement of laws and regulations for the development of the mass snow and ice industry, the clarification of the legal status of snow and ice resources, the improvement of the diversified dispute settlement mechanism, and the increase of citizen participation--so that the development and protection of snow and ice resources can achieve a win-win goal of economic and social benefits.","PeriodicalId":398961,"journal":{"name":"Institute of Legal Myongji University","volume":"306 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115603582","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-31DOI: 10.53066/mlr.2023.21.2.19
ChangShan Han, YounBoo Joung
현대 사회와 경제가 발전함에 따라 새로운 시대의 사람들은 보다 나은 삶에 대한 더 큰 갈망을 갖게 되었다. 사람들의 생활수준이 향상되고 소비개념이 변화하여 겨울철에도 빙설(氷雪)관광과 동계스포츠를 즐기는 사람들이 해마다 증가하고 있다. 이러한 변화로 인해 최근 수년 동안 빙설자원의 개발과 활용은 중국 중앙정부 및 지방정부의 주요 관심사였다. 국무원과 관련 각 부처 및 위원회는 2014년부터 2016년까지 ‘국무원의 스포츠 산업 발전 가속화에 관한 스포츠 소비 촉진에 관한 몇 가지 의견’ 등 중국의 빙설자원 개발 및 활용에 대한 총 6개의 정책을 발표했다. 또한, 지방 약 23개 성급정부는 2015년부터 2017년까지 빙설개발 관련 정책 23개를 잇따라 발표했다. 예를 들어, 2016년 9월 길림성이 제정한 ‘빙설산업 확대 및 강화에 관한 시행의견’ 등이 있다. 정책적 관점에서 볼 때 중국 정부는 빙설산업의 발전을 적극 지원하여 경제적, 사회적 이익을 실현하기 위해 다양한 정책을 도입해야 한다. 그러나 길림성의 경우, 빙설자원 개발 및 이용에 관한 현황 분석에서 관련 행정에 법적 문제가 있음이 드러났다. 예를 들어 상대적으로 낙후된 정부 관리 시스템, 불완전한 분쟁 해결 메커니즘, 낮은 대중 참여 등의 문제가 있었다. 현재 중국에서는 빙설자원의 개발 및 이용과 관련된 문제를 효과적으로 해결하기 위해 많은 학자들이 사회, 문화, 경제, 관리 등의 관점에서 토론을 진행하고 관련 대책을 연구하고 있다. 그러나 법적 관점에서 빙설자원의 개발과 이용에 관한 법적 보장을 분석한 연구는 찾아보기 어렵다. 이러한 점에서 빙설자원에 관한 행정의 법치 보장을 목적으로 하는 본 연구는 법리적 연구로서 의의를 갖는다. 예를 들어, 본문에서는 법적 규범의 관점에서 중국 빙설자원의 법적 지위를 명확히 한다. 또한, 중국 현대 행정법의 기본 이론인 ‘균형 이론’을 적용해 중국 빙설자원의 개발 및 활용에 관련된 법적 문제점과 한계를 분석한다. 동시에 본 연구는 사회경제발전이라는 현실적 요구에 부응하는 실용적 연구로서도 의의를 지니고 있다. 본문에서는 중국 빙설자원의 개발 및 이용과 관련된 문제점을 해결하기 위한 방안을 모색한다. 이는 빙설자원의 개발과 보호를 통해 경제적, 사회적 이익을 실현하는 데 기여할 수 있을 것이다. 뿐만 아니라, 본 논문이 국민의 합법적 권익을 수호하고 사회주의 민주법치 건설에 기여하는 점도 중요한 현실적 의의가 될 것이다. 이상의 목적을 달성하기 위해 본 연구는 먼저, 중국 빙설자원에 관한 개설적 논의를 진행한다. 구체적으로는 빙설자원의 정의, 빙설자원의 법률적 지위 등을 살펴본다. 다음으로, 중국의 빙설자원에 대한 개발과 이용 현황을 분석한다. 현황분석은 길림성의 예를 중심으로 다룬다. 또한, 이 장에서는 법적 관점에서 중국 빙설자원 개발과 이용 과정에 존재하는 문제점을 다각적으로 살펴본다. 끝으로, 중국 빙설자원 개발과 이용에 있어 법치를 보장하기 위한 방안을 모색한다. 특히 빙설자원 보호 법률제도, 행정관리체제, 국민참여제도, 정부의 정보공개제도, 공공과 민간의 협동 시스템 등에 관해 논의한다. With the continuous development of modern society and economy, the people in the new era have greater aspirations for a better life. Tourism has become a kind of people's spiritual pursuit for a better life. At the same time, with the improvement of people's living s
随着现代社会和经济的发展，新时代的人们对更好的生活有了更大的渴望。随着人们生活水平的提高和消费概念的变化，在冬季也喜欢冰雪旅游和冬季运动的人逐年增加。由于这种变化，近几年来，冰雪资源的开发和利用成为中国中央政府及地方政府的主要关注焦点。国务院有关各部门及委员会从2014年至2016年发布了《国务院关于加快体育产业发展促进体育消费的几点意见》等6项关于开发利用冰雪者资源的政策。另外，地方约23个省级政府从2015年至2017年陆续公布了23项冰雪开发相关政策。例如，2016年9月吉林省制定的《关于扩大和加强冰雪产业的试行意见》等。从政策角度看，中国政府应该积极支持冰雪业的发展，为实现经济、社会利益引入多种政策。但是，吉林省的冰雪资源开发利用现状分析显示，相关行政存在法律问题。例如，相对落后的政府管理体系、不完善的纠纷解决机制、低公众参与等问题。目前，中国为了有效解决冰雪资源开发利用相关问题，很多学者从社会、文化、经济、管理等角度进行讨论并研究相关对策。但是从法律的观点来看，很难找到分析有关冰雪资源开发和利用的法律保障的研究。从这一点看，以保障有关冰雪资源的行政法治为目的的本研究具有法理研究的意义。例如，本文从法律规范的观点来明确中国冰雪资源的法律地位。另外，运用中国现代行政法的基本理论“均衡理论”，分析中国冰雪资源开发利用相关的法律问题和局限性。同时，本研究作为适应社会经济发展的现实要求的实用性研究也具有意义。本文将探讨解决中国冰雪资源开发利用相关问题的方案。这将有助于通过开发和保护冰雪资源，实现经济、社会利益。不仅如此，本论文维护国民合法权益，为社会主义民主法治建设做出贡献，也将成为重要的现实意义。为了达到以上目的，本研究首先进行关于中国冰雪资源的概览性讨论。具体看冰雪资源的定义，冰雪资源的法律地位等。其次，分析中国对冰雪资源的开发和利用现状。现状分析以吉林省的例子为中心。另外，本章从法律的观点出发，从多方面观察中国冰雪资源开发和利用过程中存在的问题。最后，探索在中国冰雪资源开发和利用上保障法治的方案。特别是对冰雪资源保护法律制度、行政管理体制、国民参与制度、政府的信息公开制度、公共和民间的协同系统等进行讨论。With the continuous development of modern society and economy, the people in the new era have greater aspirations for a better life。Tourism has become a kind of people's spiritual pursuit for a better life。At the same time with improvement of people's living
{"title":"Research on the legal Guarantee of the exploitation and utilization of snow and ice resources in China","authors":"ChangShan Han, YounBoo Joung","doi":"10.53066/mlr.2023.21.2.19","DOIUrl":"https://doi.org/10.53066/mlr.2023.21.2.19","url":null,"abstract":"현대 사회와 경제가 발전함에 따라 새로운 시대의 사람들은 보다 나은 삶에 대한 더 큰 갈망을 갖게 되었다. 사람들의 생활수준이 향상되고 소비개념이 변화하여 겨울철에도 빙설(氷雪)관광과 동계스포츠를 즐기는 사람들이 해마다 증가하고 있다. 이러한 변화로 인해 최근 수년 동안 빙설자원의 개발과 활용은 중국 중앙정부 및 지방정부의 주요 관심사였다. 국무원과 관련 각 부처 및 위원회는 2014년부터 2016년까지 ‘국무원의 스포츠 산업 발전 가속화에 관한 스포츠 소비 촉진에 관한 몇 가지 의견’ 등 중국의 빙설자원 개발 및 활용에 대한 총 6개의 정책을 발표했다. 또한, 지방 약 23개 성급정부는 2015년부터 2017년까지 빙설개발 관련 정책 23개를 잇따라 발표했다. 예를 들어, 2016년 9월 길림성이 제정한 ‘빙설산업 확대 및 강화에 관한 시행의견’ 등이 있다. 정책적 관점에서 볼 때 중국 정부는 빙설산업의 발전을 적극 지원하여 경제적, 사회적 이익을 실현하기 위해 다양한 정책을 도입해야 한다. 그러나 길림성의 경우, 빙설자원 개발 및 이용에 관한 현황 분석에서 관련 행정에 법적 문제가 있음이 드러났다. 예를 들어 상대적으로 낙후된 정부 관리 시스템, 불완전한 분쟁 해결 메커니즘, 낮은 대중 참여 등의 문제가 있었다. 현재 중국에서는 빙설자원의 개발 및 이용과 관련된 문제를 효과적으로 해결하기 위해 많은 학자들이 사회, 문화, 경제, 관리 등의 관점에서 토론을 진행하고 관련 대책을 연구하고 있다. 그러나 법적 관점에서 빙설자원의 개발과 이용에 관한 법적 보장을 분석한 연구는 찾아보기 어렵다. 이러한 점에서 빙설자원에 관한 행정의 법치 보장을 목적으로 하는 본 연구는 법리적 연구로서 의의를 갖는다. 예를 들어, 본문에서는 법적 규범의 관점에서 중국 빙설자원의 법적 지위를 명확히 한다. 또한, 중국 현대 행정법의 기본 이론인 ‘균형 이론’을 적용해 중국 빙설자원의 개발 및 활용에 관련된 법적 문제점과 한계를 분석한다. 동시에 본 연구는 사회경제발전이라는 현실적 요구에 부응하는 실용적 연구로서도 의의를 지니고 있다. 본문에서는 중국 빙설자원의 개발 및 이용과 관련된 문제점을 해결하기 위한 방안을 모색한다. 이는 빙설자원의 개발과 보호를 통해 경제적, 사회적 이익을 실현하는 데 기여할 수 있을 것이다. 뿐만 아니라, 본 논문이 국민의 합법적 권익을 수호하고 사회주의 민주법치 건설에 기여하는 점도 중요한 현실적 의의가 될 것이다. 이상의 목적을 달성하기 위해 본 연구는 먼저, 중국 빙설자원에 관한 개설적 논의를 진행한다. 구체적으로는 빙설자원의 정의, 빙설자원의 법률적 지위 등을 살펴본다. 다음으로, 중국의 빙설자원에 대한 개발과 이용 현황을 분석한다. 현황분석은 길림성의 예를 중심으로 다룬다. 또한, 이 장에서는 법적 관점에서 중국 빙설자원 개발과 이용 과정에 존재하는 문제점을 다각적으로 살펴본다. 끝으로, 중국 빙설자원 개발과 이용에 있어 법치를 보장하기 위한 방안을 모색한다. 특히 빙설자원 보호 법률제도, 행정관리체제, 국민참여제도, 정부의 정보공개제도, 공공과 민간의 협동 시스템 등에 관해 논의한다. With the continuous development of modern society and economy, the people in the new era have greater aspirations for a better life. Tourism has become a kind of people's spiritual pursuit for a better life. At the same time, with the improvement of people's living s","PeriodicalId":398961,"journal":{"name":"Institute of Legal Myongji University","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127733502","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：