Pub Date : 2023-06-30DOI: 10.22397/wlri.2023.39.2.97
Deok-Jung Kim
This paper reviews the Supreme Court's Decision 2018 Da 268538 sentenced on December 30, 2021, which determined the legal relationship when chonsegwon is established to secure a lease deposit return bond. The main issues in this ruling are whether chonsegwon is valid for the purpose of securing such bonds and whether the settler of a leasehold can claim a deduction for overdue payments under an internal lease agreement from the mortgagee of the leasehold if a mortgage is set on chonsegwon. First, the validity of chonsegwon to secure a leasehold security deposit return bond needs to be examined from the perspective of the nature of chonsegwon, statutory real property right principle, and sham transaction jurisprudence. In principle, this type of chonsegwon is valid unless the possibility of use and profit by the leaseholder is completely excluded. However, any part of the leasehold transfer agreement that is incompatible with the internal lease agreement constitutes a sham transaction and is invalid. A valid cause of action exists in a leasehold transfer registration if the partial invalidity doctrine of Article 137 of the Civil Code is applied. The next issue is whether the settler of a lease can claim a deduction for overdue payments under a lease agreement for internal reasons in response to the exercise of its surrogation right of the security deposit return bond of the mortgagee of the leasehold. The judgment reconciles the interests of the parties by applying the law of general debt enforcement or the law of false representation. The settler of the leasehold cannot claim a deduction for overdue payments under a lease agreement against a mortgagee who is unaware that the mortgagee has a lease agreement with the settler. However, the settler may claim a deduction for overdue payments under a lease agreement from a mortgagee who is aware that the settler has entered into such a lease agreement. The relevant judgment was reasonable in light of balancing the parties' conflicting interests.
{"title":"Legal Relations of Chonsegwon for Securing Purpose of Lease Deposit Return Bond","authors":"Deok-Jung Kim","doi":"10.22397/wlri.2023.39.2.97","DOIUrl":"https://doi.org/10.22397/wlri.2023.39.2.97","url":null,"abstract":"This paper reviews the Supreme Court's Decision 2018 Da 268538 sentenced on December 30, 2021, which determined the legal relationship when chonsegwon is established to secure a lease deposit return bond. The main issues in this ruling are whether chonsegwon is valid for the purpose of securing such bonds and whether the settler of a leasehold can claim a deduction for overdue payments under an internal lease agreement from the mortgagee of the leasehold if a mortgage is set on chonsegwon. First, the validity of chonsegwon to secure a leasehold security deposit return bond needs to be examined from the perspective of the nature of chonsegwon, statutory real property right principle, and sham transaction jurisprudence. In principle, this type of chonsegwon is valid unless the possibility of use and profit by the leaseholder is completely excluded. However, any part of the leasehold transfer agreement that is incompatible with the internal lease agreement constitutes a sham transaction and is invalid. A valid cause of action exists in a leasehold transfer registration if the partial invalidity doctrine of Article 137 of the Civil Code is applied. The next issue is whether the settler of a lease can claim a deduction for overdue payments under a lease agreement for internal reasons in response to the exercise of its surrogation right of the security deposit return bond of the mortgagee of the leasehold. The judgment reconciles the interests of the parties by applying the law of general debt enforcement or the law of false representation. The settler of the leasehold cannot claim a deduction for overdue payments under a lease agreement against a mortgagee who is unaware that the mortgagee has a lease agreement with the settler. However, the settler may claim a deduction for overdue payments under a lease agreement from a mortgagee who is aware that the settler has entered into such a lease agreement. The relevant judgment was reasonable in light of balancing the parties' conflicting interests.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125675238","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 : 2023-06-30DOI: 10.22397/bml.2022.29.115
Kieon Lee, K. Kim
With the development of the digital healthcare sector, the software itself has now become a medical device. Digital Therapeutics(DTx) are defined as “providing evidence-based treatment interventions driven by high-quality software programs to prevent, manage, or treat medical disorders or diseases.” With the spread of digital therapeutics(DTx), major countries are expanding government-level support and investment, and overhauling related laws. This study examined the current status of domestic and foreign digital therapeutics and identified related laws and regulatory trends. Based on this, domestic legal and institutional improvement measures were proposed. According to the results of the study, major countries, including Korea, defined medical devices based on the Medical Device Act and regulated medical devices by classifying them according to the degree of risk. In the case of digital therapeutics, they are classified into low-risk grades and stipulate processes such as licensing and test evaluation of devices. In addition, a separate fast track was applied or the digital therapeutics was supported with individual guidelines. However, for the safe development of digital therapeutics in the future, it is necessary to systematically reorganize the regulations of digital therapeutics by reflecting the core contents of the guidelines in the law or enacting separate laws. In addition, the compensation method and level for the application of the health insurance system should be improved. In other words, doctor fees and patient compensation methods should be considered by reflecting the characteristics of digital therapeutics. Various discussions are needed in consideration of health insurance finance issues. Finally, due to the nature of digital therapeutics, it is necessary to strengthen data security measures and establish a management system for this.
{"title":"Current status and implications of legislation related to digital therapeutics","authors":"Kieon Lee, K. Kim","doi":"10.22397/bml.2022.29.115","DOIUrl":"https://doi.org/10.22397/bml.2022.29.115","url":null,"abstract":"With the development of the digital healthcare sector, the software itself has now become a medical device. Digital Therapeutics(DTx) are defined as “providing evidence-based treatment interventions driven by high-quality software programs to prevent, manage, or treat medical disorders or diseases.” With the spread of digital therapeutics(DTx), major countries are expanding government-level support and investment, and overhauling related laws. \u0000This study examined the current status of domestic and foreign digital therapeutics and identified related laws and regulatory trends. Based on this, domestic legal and institutional improvement measures were proposed. \u0000According to the results of the study, major countries, including Korea, defined medical devices based on the Medical Device Act and regulated medical devices by classifying them according to the degree of risk. \u0000In the case of digital therapeutics, they are classified into low-risk grades and stipulate processes such as licensing and test evaluation of devices. In addition, a separate fast track was applied or the digital therapeutics was supported with individual guidelines. However, for the safe development of digital therapeutics in the future, it is necessary to systematically reorganize the regulations of digital therapeutics by reflecting the core contents of the guidelines in the law or enacting separate laws. \u0000In addition, the compensation method and level for the application of the health insurance system should be improved. In other words, doctor fees and patient compensation methods should be considered by reflecting the characteristics of digital therapeutics. Various discussions are needed in consideration of health insurance finance issues. \u0000Finally, due to the nature of digital therapeutics, it is necessary to strengthen data security measures and establish a management system for this.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129022341","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}
The Article 24-2 of the Medical Act is different from the right to self-determination of a patient. The notice and consent according to the Article 24-2 are different from the informed consent for the right to selt-determination of patient. This article concerns procedures for invasive medical practice. This article is not about explanation and consent to respect the patient's right to self-determination. Therefore, it is necessary to impose duties centering on records of explanation and consent. The patient's right to self-determination is recognized in the doctor-patient relationship. Doctors bear the duty of explanation not for public health, but for the individual patient's right to self-determination. If so, this provision needs to be amended into a provision with procedural meaning to monitor surrogate surgery.
{"title":"The explanation of medical practice according to the Article 24-2 of the Medical Act does a protect the patient's right to self-determination?","authors":"Jae-kyeong Yi","doi":"10.22397/bml.2022.29.87","DOIUrl":"https://doi.org/10.22397/bml.2022.29.87","url":null,"abstract":"The Article 24-2 of the Medical Act is different from the right to self-determination of a patient. The notice and consent according to the Article 24-2 are different from the informed consent for the right to selt-determination of patient. This article concerns procedures for invasive medical practice. This article is not about explanation and consent to respect the patient's right to self-determination. Therefore, it is necessary to impose duties centering on records of explanation and consent. The patient's right to self-determination is recognized in the doctor-patient relationship. Doctors bear the duty of explanation not for public health, but for the individual patient's right to self-determination. If so, this provision needs to be amended into a provision with procedural meaning to monitor surrogate surgery.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"213 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114468387","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}
The COVID-19 pandemic has prompted significant transformations in the traditional face-to-face provision of healthcare services, leading to a global surge in diverse forms of digital health. Internationally, there is a growing focus on fostering the digital health industry for disease treatment and health promotion, beyond just teleconsultation and telemedicine. Various healthcare professionals are actively participating in a broad range of telehealth practices, including tele-education, tele monitoring, and telecounseling, with corresponding legislative frameworks being put in place. In response to the COVID-19 crisis, South Korea temporarily permitted telemedicine between physicians and patients. Subsequently, as positive public sentiment towards telemedicine emerged, a revised bill concerning telemedicine was reintroduced. However, the proposed amendments to the medical law still primarily revolve around teleconsultations between doctors and patients, predominantly within hospital. Within South Korea, nurses have been actively engaged in telenursing tasks, encompassing support for teleconsultations, remote monitoring of patients, telecounseling, remote explanations, remote observations, telesurveillance, and tele-education of patients’s family. This involvement extends beyond the context of the COVID-19 infectious disease crisis, encompassing routine scenarios, as part of the Ministry of Health and Welfare's community-based telehealthcare pilot program. Nonetheless, the existing legal framework in South Korea fails to adequately address this reality. Given the actual landscape of remote healthcare in the country and its potential for further advancement, it is crucial to establish legal provisions that encompass the expected roles and responsibilities of nurses, which currently remain unaddressed within the prevailing medical laws. This study considered France which stipulated and legislated the scope of nurse roles, conditions and fees for performance within Telecare Act that was added in Telehealth law in 2019. Through this, this paper discuss the problems and implications of the pilot project about telemedicine in South Korea and matters that should be included in the revision of the law.
{"title":"Review for legislation of telenursing: Focusing on telecare law in France","authors":"Seon-Gyu Han, Eun-Kyoung Yun","doi":"10.22397/bml.2022.29.5","DOIUrl":"https://doi.org/10.22397/bml.2022.29.5","url":null,"abstract":"The COVID-19 pandemic has prompted significant transformations in the traditional face-to-face provision of healthcare services, leading to a global surge in diverse forms of digital health. Internationally, there is a growing focus on fostering the digital health industry for disease treatment and health promotion, beyond just teleconsultation and telemedicine. Various healthcare professionals are actively participating in a broad range of telehealth practices, including tele-education, tele monitoring, and telecounseling, with corresponding legislative frameworks being put in place. \u0000In response to the COVID-19 crisis, South Korea temporarily permitted telemedicine between physicians and patients. Subsequently, as positive public sentiment towards telemedicine emerged, a revised bill concerning telemedicine was reintroduced. However, the proposed amendments to the medical law still primarily revolve around teleconsultations between doctors and patients, predominantly within hospital. \u0000Within South Korea, nurses have been actively engaged in telenursing tasks, encompassing support for teleconsultations, remote monitoring of patients, telecounseling, remote explanations, remote observations, telesurveillance, and tele-education of patients’s family. This involvement extends beyond the context of the COVID-19 infectious disease crisis, encompassing routine scenarios, as part of the Ministry of Health and Welfare's community-based telehealthcare pilot program. Nonetheless, the existing legal framework in South Korea fails to adequately address this reality. Given the actual landscape of remote healthcare in the country and its potential for further advancement, it is crucial to establish legal provisions that encompass the expected roles and responsibilities of nurses, which currently remain unaddressed within the prevailing medical laws. \u0000This study considered France which stipulated and legislated the scope of nurse roles, conditions and fees for performance within Telecare Act that was added in Telehealth law in 2019. Through this, this paper discuss the problems and implications of the pilot project about telemedicine in South Korea and matters that should be included in the revision of the law.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128894089","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 : 2023-06-30DOI: 10.22397/wlri.2023.39.2.57
Gina S. Rhee
In recent period, crime prediction programs have been newly introduced and utilized internationally in the field of criminal justice. COMPAS (“Corrective Offender Management Profiling for Alternative Sanctions”), as a representative example, is a recidivism prediction program used in several States in the United States. COMPAS is the most widely used risk assessment tools in the United States. The U.S. company Northpointe has developed an artificial intelligence algorithm that predicts the possibility of recidivism by analyzing the accumulated data such as criminal records, family relationships, educational history, drug abuse, etc. However, as it has been controversially argued that the results of these algorithms violate the defendants' constitutional rights, fundamental questions arise on how the results of the algorithm are produced, and what factors are calculated in judging a specific decision. In the era of A.I., ‘artificial intelligence’ is a concept that encompasses both technology development, utilization, and operation systems, normative judgment and policy design related to the use of the system in the judicial system. Furthermore, ethical guidelines for preventing individual risks in the use of artificial intelligence and other legal restraints, including criminal sanctions, should be established. Based on the crime prediction, this study will discuss the bias and racism of algorithms based on crime prediction technologies. This paper further aims to scrutinize the crime prediction and artificial intelligence algorithms in relation to the racial discrimination and social inequality against specific groups in criminal justice. Though not as much as in the U.S., often referred to as a ‘salad bowl’ society, South Korea has also entered a multicultural society due to recent surge in immigration, labor market, and international marriage. Lastly, the author emphasizes the importance of further research on the utilization of crime prediction tool in South Korea, as it requires careful deliberation and thorough comparative legal research prior the adoption of the new technology in the criminal justice system.
近年来，犯罪预测程序在国际刑事司法领域得到了新的引入和应用。COMPAS(“correctionoffender Management Profiling for Alternative Sanctions”)就是一个典型的例子，它是美国几个州使用的累犯预测项目。COMPAS是美国使用最广泛的风险评估工具。美国企业Northpointe开发了一种人工智能算法，通过分析积累的犯罪记录、家庭关系、教育经历、药物滥用等数据，预测再犯的可能性。然而，由于有争议地认为这些算法的结果侵犯了被告的宪法权利，因此出现了关于如何产生算法结果以及在判断特定决定时计算哪些因素的基本问题。在人工智能时代，“人工智能”是一个概念，包括技术开发、利用和操作系统，以及与该系统在司法系统中的使用相关的规范性判断和政策设计。此外，应制定防止使用人工智能和其他法律限制(包括刑事制裁)中的个人风险的道德准则。在犯罪预测的基础上，本研究将讨论基于犯罪预测技术的算法的偏见和种族主义。本文旨在进一步审视犯罪预测和人工智能算法与刑事司法中特定群体的种族歧视和社会不平等的关系。虽然没有被称为“沙拉碗社会”的美国那么多，但由于最近移民、劳动力市场、国际婚姻的激增，韩国也进入了多元文化社会。最后，作者强调了进一步研究韩国犯罪预测工具使用的重要性，因为在刑事司法系统采用新技术之前，需要仔细考虑和彻底的比较法律研究。
{"title":"Artificial Intelligence Prediction Program in Criminal Justice System: focused on its Biased Algorithm in relation to the Racial Discrimination","authors":"Gina S. Rhee","doi":"10.22397/wlri.2023.39.2.57","DOIUrl":"https://doi.org/10.22397/wlri.2023.39.2.57","url":null,"abstract":"In recent period, crime prediction programs have been newly introduced and utilized internationally in the field of criminal justice. COMPAS (“Corrective Offender Management Profiling for Alternative Sanctions”), as a representative example, is a recidivism prediction program used in several States in the United States. COMPAS is the most widely used risk assessment tools in the United States. The U.S. company Northpointe has developed an artificial intelligence algorithm that predicts the possibility of recidivism by analyzing the accumulated data such as criminal records, family relationships, educational history, drug abuse, etc. However, as it has been controversially argued that the results of these algorithms violate the defendants' constitutional rights, fundamental questions arise on how the results of the algorithm are produced, and what factors are calculated in judging a specific decision. In the era of A.I., ‘artificial intelligence’ is a concept that encompasses both technology development, utilization, and operation systems, normative judgment and policy design related to the use of the system in the judicial system. Furthermore, ethical guidelines for preventing individual risks in the use of artificial intelligence and other legal restraints, including criminal sanctions, should be established. Based on the crime prediction, this study will discuss the bias and racism of algorithms based on crime prediction technologies. This paper further aims to scrutinize the crime prediction and artificial intelligence algorithms in relation to the racial discrimination and social inequality against specific groups in criminal justice. Though not as much as in the U.S., often referred to as a ‘salad bowl’ society, South Korea has also entered a multicultural society due to recent surge in immigration, labor market, and international marriage. Lastly, the author emphasizes the importance of further research on the utilization of crime prediction tool in South Korea, as it requires careful deliberation and thorough comparative legal research prior the adoption of the new technology in the criminal justice system.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"64 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126457470","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 : 2023-06-30DOI: 10.22397/wlri.2023.39.2.145
Jinmok Kim
In 2010, with the implementation of the May 24th measures, inter-Korean economic cooperation was suspended in all areas except the Kaesong Industrial Complex. Then, in 2016, with the closure of the Kaesong Industrial Complex, all inter-Korean economic cooperation came to a halt. The joint venture enterprises in inter-Korean economic cooperation were mainly concentrated in the Pyongyang region. However, there was a case of inter-Korean economic cooperation in the form of a joint venture enterprise outside the Kaesong Industrial Complex that could be accessed using the entry and exit procedures of the Kaesong Industrial Complex. South-North Equity Joint Venture Enterprise in Kaesong can utilize the industrial, transportation, and transit facilities of the Kaesong Industrial Complex and has the advantage of active participation by North Korea, which holds shares. In the Equity Joint Venture Act, it is necessary to clarify the criteria for setting land usage fees, ease the all-out agreement system, and ensure education for workers. In addition, it is necessary to fairly define subsequent procedures in cases where consultation is impossible. Under the North-South Economic Cooperation Act, it is necessary to simplify the North's project approval process and stipulate that the North should manage its property in good faith, at least to a minimum extent, in special circumstances. The law on the development of inter-Korean relations needs to clearly define the special relationship between North and South Korea and elevate the legal status of the inter-Korean agreements to the level of general treaties. The law on inter-Korean exchange and cooperation should clearly stipulate in writing the procedures for obtaining North Korean visit approvals and for importing and exporting goods, and should minimize the time required for these processes. The agreement on investment protection between North and South Korea should specify in detail the abnormal issues that impede economic cooperation and provide for step-by-step investment protection accordingly. Regarding the agreement on the resolution of commercial disputes between North and South Korea, the follow-up procedures of the agreement should be promptly carried out, and the establishment of a governing law that applies to both North and South Korea is necessary. The inter-Korean agreement went through the legislative approval process outlined in Article 60, Paragraph 1 of the Constitution, thereby establishing its legal validity. However, due to North Korea's non-compliance, it has become practically ineffective. However, as North Korea has not explicitly rejected the validity of the agreement, it is not advisable to disregard the agreement and its provisions in preparation for future inter-Korean cooperation. North Korea has been attempting to improve its external economy through scientific and technological exchanges, economic development zones, and other means since the 2010s. However, the situation has wo
{"title":"A Study on the Legal Issues of the South-North Equity Joint Venture Enterprise in Kaesong","authors":"Jinmok Kim","doi":"10.22397/wlri.2023.39.2.145","DOIUrl":"https://doi.org/10.22397/wlri.2023.39.2.145","url":null,"abstract":"In 2010, with the implementation of the May 24th measures, inter-Korean economic cooperation was suspended in all areas except the Kaesong Industrial Complex. Then, in 2016, with the closure of the Kaesong Industrial Complex, all inter-Korean economic cooperation came to a halt. The joint venture enterprises in inter-Korean economic cooperation were mainly concentrated in the Pyongyang region. However, there was a case of inter-Korean economic cooperation in the form of a joint venture enterprise outside the Kaesong Industrial Complex that could be accessed using the entry and exit procedures of the Kaesong Industrial Complex. South-North Equity Joint Venture Enterprise in Kaesong can utilize the industrial, transportation, and transit facilities of the Kaesong Industrial Complex and has the advantage of active participation by North Korea, which holds shares. In the Equity Joint Venture Act, it is necessary to clarify the criteria for setting land usage fees, ease the all-out agreement system, and ensure education for workers. In addition, it is necessary to fairly define subsequent procedures in cases where consultation is impossible. Under the North-South Economic Cooperation Act, it is necessary to simplify the North's project approval process and stipulate that the North should manage its property in good faith, at least to a minimum extent, in special circumstances. The law on the development of inter-Korean relations needs to clearly define the special relationship between North and South Korea and elevate the legal status of the inter-Korean agreements to the level of general treaties. The law on inter-Korean exchange and cooperation should clearly stipulate in writing the procedures for obtaining North Korean visit approvals and for importing and exporting goods, and should minimize the time required for these processes. The agreement on investment protection between North and South Korea should specify in detail the abnormal issues that impede economic cooperation and provide for step-by-step investment protection accordingly. Regarding the agreement on the resolution of commercial disputes between North and South Korea, the follow-up procedures of the agreement should be promptly carried out, and the establishment of a governing law that applies to both North and South Korea is necessary. The inter-Korean agreement went through the legislative approval process outlined in Article 60, Paragraph 1 of the Constitution, thereby establishing its legal validity. However, due to North Korea's non-compliance, it has become practically ineffective. However, as North Korea has not explicitly rejected the validity of the agreement, it is not advisable to disregard the agreement and its provisions in preparation for future inter-Korean cooperation. North Korea has been attempting to improve its external economy through scientific and technological exchanges, economic development zones, and other means since the 2010s. However, the situation has wo","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123957119","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 : 2023-03-30DOI: 10.22397/wlri.2023.39.1.233
Sung Ho Park
As is well known, the rule of law is the principle that power should be exercised based on laws enacted and revised by the legislature. Therefore, the rule of law is a principle that power cannot be arbitrarily exercised or exercised by a person in power, but must be exercised only on the basis of law. In other words, the rule of law is to prevent abuse of power by limiting the arbitrary and subjective exercise of power by requiring the exercise of power to be based on the law. However, opinions are still divided as to why the rule of law is necessary and what it means. The rule of law is a principle to prevent and limit abuse of power by requiring the exercise of power to be based on the law, or guarantee and protect individuals' freedom and rights by limiting the exercise of power to be based on the law. These various views on the rule of law are related to what the national community wants to achieve through the rule of law. I think that the exercise of power is to prevent abuse of power and to guarantee and protect individuals' freedom and rights by demanding that it be based on the law. In other words, when the exercise of power is arbitrary and subjective by the person in power, it only brings about the expansion of power, but individual freedom and rights are bound to be limited. Therefore, the rule of law should be exercised on the basis of 'law' rather than the subjective will of individuals or power, and infringement of individual freedom and rights by powerful people or power groups should not be recognized without the basis of law. However, given that the law is enacted by the power group and reflects the subjective will of the power group, it is problematic to call it the rule of law if the exercise of power is based on the law. This is because if power is exercised based on the law only by the arbitrary and subjective will of the powerful person or the power group, it can be reduced to a tool that can suppress individual freedom and rights. In other words, if power is exercised based on laws only for power people or power purposes, it can mean the expansion of power, not the restriction and abuse of power. Therefore, if the purpose of the rule of law is to guarantee and protect individuals' freedom and rights, the law for the rule of law should be recognized only when power is exercised based on the law that is recognized as having practical effect to guarantee and protect individuals' freedom and rights.
{"title":"About the practical effect of the Law","authors":"Sung Ho Park","doi":"10.22397/wlri.2023.39.1.233","DOIUrl":"https://doi.org/10.22397/wlri.2023.39.1.233","url":null,"abstract":"As is well known, the rule of law is the principle that power should be exercised based on laws enacted and revised by the legislature. Therefore, the rule of law is a principle that power cannot be arbitrarily exercised or exercised by a person in power, but must be exercised only on the basis of law. In other words, the rule of law is to prevent abuse of power by limiting the arbitrary and subjective exercise of power by requiring the exercise of power to be based on the law. However, opinions are still divided as to why the rule of law is necessary and what it means. The rule of law is a principle to prevent and limit abuse of power by requiring the exercise of power to be based on the law, or guarantee and protect individuals' freedom and rights by limiting the exercise of power to be based on the law. These various views on the rule of law are related to what the national community wants to achieve through the rule of law. I think that the exercise of power is to prevent abuse of power and to guarantee and protect individuals' freedom and rights by demanding that it be based on the law. In other words, when the exercise of power is arbitrary and subjective by the person in power, it only brings about the expansion of power, but individual freedom and rights are bound to be limited. Therefore, the rule of law should be exercised on the basis of 'law' rather than the subjective will of individuals or power, and infringement of individual freedom and rights by powerful people or power groups should not be recognized without the basis of law. However, given that the law is enacted by the power group and reflects the subjective will of the power group, it is problematic to call it the rule of law if the exercise of power is based on the law. This is because if power is exercised based on the law only by the arbitrary and subjective will of the powerful person or the power group, it can be reduced to a tool that can suppress individual freedom and rights. In other words, if power is exercised based on laws only for power people or power purposes, it can mean the expansion of power, not the restriction and abuse of power. Therefore, if the purpose of the rule of law is to guarantee and protect individuals' freedom and rights, the law for the rule of law should be recognized only when power is exercised based on the law that is recognized as having practical effect to guarantee and protect individuals' freedom and rights.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126732550","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 : 2023-03-30DOI: 10.22397/wlri.2023.39.1.207
Vian Rhee
On February 24, 2002, the National Assembly integrated ‘the Land Expropriation Act’ and ‘the Special Act on the Compensation for Loss of Public Land’ and enacted ‘the Act On Acquisition Of And Compensation For Land For Public Works Projects (“the Land Compensation Act: LCA”).’ Nevertheless, the LCA was criticized for not protecting individual property rights because (quasi-)project approval was not able to guarantee ‘public needs.’ As a result, the LCA was amended in 2015 and 2018. The Minister of Land, Infrastructure and Transport(“LIT Minister”) and authorities of quasi-project approval should have a consultation with Central Land Tribunal(“CLT”) during (quasi-)project approval procedures. However, several unexpected problems began to arise, particularly when CLT gives a conditional consent for quasi-project approval after consultation. A conditional consent for quasi-project approval requires a public project operator to achieve much more (which is 75 percent than than 50 percent of public project area which is required as consultation acquisition rate. The proviso of a conditional consent allows a public project operator to apply for CLT hearing. Some local land tribunals (“LLTs”) intend to establish administrative rules for excessive compensation demands. However, LLTs are not authorized to make those rules. And those rules are directly against the landowners who are subject to taking. LLTs may make an adjudication of the Land Tribunal only on cases in which 75 percent consultation acquisition rate has been achieved. If the rate was not met at the time of application but was achieved during LLTs’s process, LLTs should make an adjudication to dismiss. If not, applying for land expropriation could be used as a means of threatening landowners to consult. However, landowners could request a public project operator to apply for adjudication of the Land Tribunal, regardless of whether or not the acquisition rate is achieved.
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Pub Date : 2023-03-30DOI: 10.22397/wlri.2023.39.1.63
Seong Jun Park, Sang Kyum Kim
Constitutional Court celebrated its 35th anniversary in this year. Since the introduction of the Constitutional Court system in 1987 and the enactment of the Constitutional Court Act in 1988, the Constitutional Court has been in the center of public criticism and political events, but has played an independent role as the final institution for constitutional interpretation. For the Constitutional Court, which is bound to be in a tense relationship with politics, the guarantee of independence should be stronger than any other state institution so that it can fulfill its role as the last bastion of constitutional protection and guaranteeing basic rights. Nevertheless, the current composition method shows a structure contrary to the principles of democratic legitimacy and professionalism, which are the principles of the Constitutional Court, causing problems that hinder the promotion of independence. Constitutional scholars have consistently pointed out issues related to this since the establishment of the Constitutional Court system, but hopes for reform were only intermittent. Time has passed without any significant change, and now discussions on how to organize, one of the pillars of the independence of the Constitutional Court, have been dismissed as a rather dull topic. However, at a time when interest in the Constitutional Court is currently highlighted, it is necessary to re-examine the independence of the Constitutional Court. Therefore, the purpose of this study is to ignite the reform of the Constitutional Court by devising practical improvement measures other than revision based on literature research. As a result, the appointment system reaffirmed the discussion on the need for constitutional amendment and examined detailed improvement plans. In the case of the qualification system issue, it was set as the qualification of constitutional judges in academia, but it was concluded that additional discourse on detailed realization measures was needed. Therefore, the transition period of the improvement process was presented in its own way by using the legal professional development process of the law school. We must continue to pay attention to the Constitutional Court so that it can defend the Constitution and liberal democracy as a fair judge. If the constitutional interpretation is provided that the members of the public can understand based on the fairness and objectivity of the composition outside the Constitutional Court, the credibility of the Constitutional Court can be increased even though it is inseparable from politics and ideology in nature.
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Pub Date : 2023-03-30DOI: 10.22397/wlri.2023.39.1.137
Misha Yang, Shin Park
In principle, everyone is guaranteed freedom of contract. In principle, the contents of a real estate sales contract can also be freely determined by agreement between the seller and the buyer without state control. However, even if the contract is based on the civil law to which private autonomy is applied, there are some cases which could be also a subject to public law. For example, in accordance with ACT on report on real estate transaction (ARRET), the sales price of a real estate sales contract must be reported to the authority within 30 days from the date of conclusion of the sales contract. This is a kind of reporting obligation. Recently, it is common to conclude a provisional contract before concluding a real estate sales contract in Korea. Regarding this situation, namely provisional contract, there is a controversial case, in which a licensed real estate agent was fined for violating the reporting obligation. This is understood to be due to differences in perception of how to understand provisional contracts. In the controversial case, the authority judged the starting point of transaction in a report as the date of deposit of the provisional contract, not the date of conclusion of the main contract. The ARRET does not define the date of conclusion of a sales contract or provides a guideline for interpretation. The date of conclusion of the contract means the date on which the contract is actually concluded, not the date of written contract or the date on which the contract is drafted. Based on this date, the report must be made within the period. Regarding the date, there are several problems in the disposition of fine by the authority. First, fine for negligence are imposed for delay of reporting obligation, and the amount of fine actually imposed is due to false reports. Second, various contracts called provisional contracts cannot be identified as the same contract as the main contract. Third, there are cases in which reporting is impossible at the time an agreement on the sales contract is established. Imposing a fine for negligence is a kind of an intrusive administrative disposition that imposes certain obligations. Therefore, the legal basis for disposition must be clear, and extended or inferential interpretations are not permitted. Furthermore, the authority should judge more carefully whether the fundamental rights of the constitution are not violated or whether the legal basis for the disposition is clear when taking an intrusive administrative disposition against a private person.
原则上，每个人都享有契约自由。原则上，房地产买卖合同的内容也可以由买卖双方通过协议自由确定，不受国家控制。然而，即使合同是基于适用私法自治的民法，在某些情况下也可能是公法的主体。例如，根据《房地产交易申报法》(ACT on report on real estate transaction, ARRET)，房地产买卖合同的销售价格必须在买卖合同签订之日起30天内向当局申报。这是一种报告义务。最近，在韩国，在签订房地产买卖合同之前先签订临时合同是很常见的事情。对于这种情况，即临时合同，有一个有争议的案例，一个持牌房地产经纪人因违反报告义务而被罚款。据了解，这是由于对如何理解临时合同的看法不同。在争议案件中，当局判定报告中的交易起始日期为临时合同的交存日期，而不是主合同的订立日期。ARRET没有规定买卖合同的订立日期，也没有提供解释指南。合同成立的日期是指合同实际成立的日期，而不是书面合同的日期或者合同的起草日期。在此日期基础上，报告必须在期限内完成。就日期而言，当局对罚款的处理存在几个问题。首先，过失罚款是对延迟报告义务的处罚，而实际处罚的数额是由于虚假报告造成的。第二，被称为临时合同的各种合同不能被认定为与主合同相同的合同。第三，有些情况下，在销售合同协议成立时，报告是不可能的。过失罚款是一种强加一定义务的侵入性行政处分。因此，处分的法律依据必须明确，不得进行引申解释或推论解释。此外，当局在对私人进行侵入性行政处分时，应更加仔细地判断是否侵犯了宪法的基本权利或处分的法律依据是否明确。
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