Pub Date : 2023-03-30DOI: 10.22397/wlri.2023.39.1.289
Sang-man Lee
Through the 2019 Heonma 534 Decision in the Constitutional Court’s Sentence on Nov. 25, 2021, it made the unconstitutional decision as saying of violating the freedom of political expression and the freedom of association in the claimant, a public service worker, because of being contrary to the principle of clarity, etc. regarding the section about 'act with political purpose such as joining other political organizations out of Article 33, Paragraph 2, Text No. 2 in the Military Service Act (amended by Act No. 11849 on June 4, 2013). Here, the aim was to consider concerning the judicial decision made by the Constitutional Court in relation to this case focusing on the guarantee of the freedom of political expression in social service personnel performing mandatory military service and on its limitations in reference to this case. First of all, through the 2016 Heonma 252 decision in the sentence on Oct. 27, 2016, the Constitutional Court has already made the decision of constitutionality as for ‘whether or not the freedom of the election campaign’ in a public service worker in the same article with object to adjudication. Based on this decision, it clearly identified that a public service worker has the public status equivalent to that of a public official as a person of performing public duty and has the political neutrality in light of its position and duty, along with the meaning of a public service worker. In sequence, through 2016 Heonma 252 that is the decision of this case, it examined with regard to restricting ‘political party’ affiliation out of Article 33, Paragraph 2, Text No. 2 in the Military Service Act as the article with object to adjudication. There was also an objection that the complete ban on the political party membership goes against the principle of excess prohibition in consideration of what the claimant in this case is a social service worker and of the characteristics of the duties in public service workers. However, taking into account the characteristics of the status in social service personnel fulfilling their military service obligation and the relationship with other military service performers, it agrees to what the Constitutional Court's decision as saying of not infringing on the freedom of political expression and the freedom of association is reasonable even if applying the principle of excess prohibition, which is the standard for examination. And then, it observed carefully concerning ‘Act with political purpose such as joining other political organizations, etc.’ out of Article 33, Paragraph 2, Text No. 2 in the Military Service Act as the article with object to adjudication in 2019 Heonma 534 that is the decision of this case. Like modern society, guaranteeing the freedom of political expression, which is the basis of democracy, is an important right that must be assured preferentially in the relationship with other fundamental rights, should be deliberate when trying to limit these rights, and needs to
{"title":"A Study on the Public Service Workers and Freedom of Political Expression","authors":"Sang-man Lee","doi":"10.22397/wlri.2023.39.1.289","DOIUrl":"https://doi.org/10.22397/wlri.2023.39.1.289","url":null,"abstract":"Through the 2019 Heonma 534 Decision in the Constitutional Court’s Sentence on Nov. 25, 2021, it made the unconstitutional decision as saying of violating the freedom of political expression and the freedom of association in the claimant, a public service worker, because of being contrary to the principle of clarity, etc. regarding the section about 'act with political purpose such as joining other political organizations out of Article 33, Paragraph 2, Text No. 2 in the Military Service Act (amended by Act No. 11849 on June 4, 2013). Here, the aim was to consider concerning the judicial decision made by the Constitutional Court in relation to this case focusing on the guarantee of the freedom of political expression in social service personnel performing mandatory military service and on its limitations in reference to this case. First of all, through the 2016 Heonma 252 decision in the sentence on Oct. 27, 2016, the Constitutional Court has already made the decision of constitutionality as for ‘whether or not the freedom of the election campaign’ in a public service worker in the same article with object to adjudication. Based on this decision, it clearly identified that a public service worker has the public status equivalent to that of a public official as a person of performing public duty and has the political neutrality in light of its position and duty, along with the meaning of a public service worker. In sequence, through 2016 Heonma 252 that is the decision of this case, it examined with regard to restricting ‘political party’ affiliation out of Article 33, Paragraph 2, Text No. 2 in the Military Service Act as the article with object to adjudication. There was also an objection that the complete ban on the political party membership goes against the principle of excess prohibition in consideration of what the claimant in this case is a social service worker and of the characteristics of the duties in public service workers. However, taking into account the characteristics of the status in social service personnel fulfilling their military service obligation and the relationship with other military service performers, it agrees to what the Constitutional Court's decision as saying of not infringing on the freedom of political expression and the freedom of association is reasonable even if applying the principle of excess prohibition, which is the standard for examination. And then, it observed carefully concerning ‘Act with political purpose such as joining other political organizations, etc.’ out of Article 33, Paragraph 2, Text No. 2 in the Military Service Act as the article with object to adjudication in 2019 Heonma 534 that is the decision of this case. Like modern society, guaranteeing the freedom of political expression, which is the basis of democracy, is an important right that must be assured preferentially in the relationship with other fundamental rights, should be deliberate when trying to limit these rights, and needs to ","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"2 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":"124202973","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.2023.39.1.33
Kiho Noh
Article 31, Paragraph 4 of the current Constitution stipulates that “the independence, professionalism, political neutrality of education and the autonomy of universities are guaranteed by the law.” As for the content and scope of what the “autonomy of education, professionalism, political neutrality, and university autonomy” in the Constitution means in detail, the theories that have been established in Article 31, Paragraph 4 are insufficient, and the application of this provision is not yet complete. There are also not many precedents of specific cases throughpolitical neutrality of education and the autonomy of universities are guaranteed by the law.” As for the content and scope of what the “autonomy of education, professionalism, political neutrality, and university autonomy” in the Constitution means in detail, the theories that have been established in Article 31, Paragraph 4 are insufficient, and the application of this provision is not yet complete. There are also not many precedents of specific cases through. Therefore, in this thesis, the concept and meaning of education's autonomy, professionalism, and political neutrality, and specific examples of application were examined, and how they are defined in Japanese education laws, which have similar regulations to ours, and how they are defined in academic theories, theories, and specific precedents. I tried to get implications by comparing and examining whether they are interpreting. And furthermore, we reviewed what is the plan to solve our educational legal issues. It can be said that the concept and meaning of the autonomy of education, professionalism, political neutrality, and university autonomy under Article 31, Paragraph 4 of the Constitution, as well as specific implementation plans, have been established to some extent through academic theories and court precedents. However, if the constitutional purpose of Article 31, Section 4 of the Constitution is interpreted with respect and the legislative purpose of the constitutional authority is respected, it can be said that it ultimately results in the substantial guarantee of the people's right to receive education under Article 31, Section 1 of the Constitution. In order to more practically and concretely realize the people's right to receive education, and narrowly, the student's right to learn, autonomy, professionalism, and political neutrality in education are required. It should be seen that it is implemented as (autonomy). It is necessary for the government to reflect the legislative intent of the Constitution when designing education policies and establishing a system, and the same is true for the courts to interpret and apply the provisions of education.
{"title":"Interpretation and application of Article 31(4) of the Constitution","authors":"Kiho Noh","doi":"10.22397/wlri.2023.39.1.33","DOIUrl":"https://doi.org/10.22397/wlri.2023.39.1.33","url":null,"abstract":"Article 31, Paragraph 4 of the current Constitution stipulates that “the independence, professionalism, political neutrality of education and the autonomy of universities are guaranteed by the law.” As for the content and scope of what the “autonomy of education, professionalism, political neutrality, and university autonomy” in the Constitution means in detail, the theories that have been established in Article 31, Paragraph 4 are insufficient, and the application of this provision is not yet complete. There are also not many precedents of specific cases throughpolitical neutrality of education and the autonomy of universities are guaranteed by the law.” As for the content and scope of what the “autonomy of education, professionalism, political neutrality, and university autonomy” in the Constitution means in detail, the theories that have been established in Article 31, Paragraph 4 are insufficient, and the application of this provision is not yet complete. There are also not many precedents of specific cases through. Therefore, in this thesis, the concept and meaning of education's autonomy, professionalism, and political neutrality, and specific examples of application were examined, and how they are defined in Japanese education laws, which have similar regulations to ours, and how they are defined in academic theories, theories, and specific precedents. I tried to get implications by comparing and examining whether they are interpreting. And furthermore, we reviewed what is the plan to solve our educational legal issues. It can be said that the concept and meaning of the autonomy of education, professionalism, political neutrality, and university autonomy under Article 31, Paragraph 4 of the Constitution, as well as specific implementation plans, have been established to some extent through academic theories and court precedents. However, if the constitutional purpose of Article 31, Section 4 of the Constitution is interpreted with respect and the legislative purpose of the constitutional authority is respected, it can be said that it ultimately results in the substantial guarantee of the people's right to receive education under Article 31, Section 1 of the Constitution. In order to more practically and concretely realize the people's right to receive education, and narrowly, the student's right to learn, autonomy, professionalism, and political neutrality in education are required. It should be seen that it is implemented as (autonomy). It is necessary for the government to reflect the legislative intent of the Constitution when designing education policies and establishing a system, and the same is true for the courts to interpret and apply the provisions of education.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"108 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":"124237736","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.2023.39.1.309
Jeong-il Park
There is a saying, “History of mankind is the history of diseases.” Humans are still developing numerous drugs that have not existed before to overcome or alleviate diseases, and these efforts will continue as long as humanity exists. COVID-19, which began at the end of December 2019, served as a momentum to inform all of us of the importance of the new drug development. North American countries are leading the development of new drugs, followed by China and Japan. Korea also has reorganized the legislation for the development and supply of new drugs and encouraged the development and supply of new drugs. However, it is true that Korea has been importing a lot of drugs, including COVID-19 vaccines and treatments. On March 9th, 2021, the Special Act for Promotion of Development and Emergency Supply of Medical Products Responding to Public Health Crisis was made. In this Act, Approval for Emergency Use of Drugs is allowed, which is different from the formal licensing procedure, and through this, medical products that can prevent public health crises can be quickly imported and supplied. As the products supplied under Approval for Emergency Use of Drugs have also side effects, undesirable and unintended signs, symptoms, or diseases may occur to some individuals. However, because there is no basis for damage relief in the relevant laws, the need for supplementation of the system has been pointed out. Reflecting this, it is welcome that some revised legislation specifying the basis for national compensation has been passed. National compensation presupposes the nation's regulatory or arbitrator status, and is clearly different from the administration’s compensation system that admits the national professional negligence. Even after the Approval for Emergency Use of Drugs to cope with the public health crisis, the administration still bears the risk management or risk prevention responsibility for the drugs, so it cannot be free from the liability for omission if this obligation is not fulfilled. National responsibility by administrative omission can also be applied when the form of action is administrative guidance. Of course, some point out that it is difficult to recognize the existence of a duty of action due to the randomness. However, if the probability of avoiding or mitigating damage to life and health can be increased by providing administrative guidance, its effectiveness can be verified. In addition, the obligation of administrative guidance can be actively interpreted even though the requirements for exercising administrative authority are not met, or administrative guidance is forced to respond to risks immediately due to time constraints.
{"title":"Approval for Emergency Use of Drugs and National Responsibility","authors":"Jeong-il Park","doi":"10.22397/wlri.2023.39.1.309","DOIUrl":"https://doi.org/10.22397/wlri.2023.39.1.309","url":null,"abstract":"There is a saying, “History of mankind is the history of diseases.” Humans are still developing numerous drugs that have not existed before to overcome or alleviate diseases, and these efforts will continue as long as humanity exists. COVID-19, which began at the end of December 2019, served as a momentum to inform all of us of the importance of the new drug development. North American countries are leading the development of new drugs, followed by China and Japan. Korea also has reorganized the legislation for the development and supply of new drugs and encouraged the development and supply of new drugs. However, it is true that Korea has been importing a lot of drugs, including COVID-19 vaccines and treatments. On March 9th, 2021, the Special Act for Promotion of Development and Emergency Supply of Medical Products Responding to Public Health Crisis was made. In this Act, Approval for Emergency Use of Drugs is allowed, which is different from the formal licensing procedure, and through this, medical products that can prevent public health crises can be quickly imported and supplied. As the products supplied under Approval for Emergency Use of Drugs have also side effects, undesirable and unintended signs, symptoms, or diseases may occur to some individuals. However, because there is no basis for damage relief in the relevant laws, the need for supplementation of the system has been pointed out. Reflecting this, it is welcome that some revised legislation specifying the basis for national compensation has been passed. National compensation presupposes the nation's regulatory or arbitrator status, and is clearly different from the administration’s compensation system that admits the national professional negligence. Even after the Approval for Emergency Use of Drugs to cope with the public health crisis, the administration still bears the risk management or risk prevention responsibility for the drugs, so it cannot be free from the liability for omission if this obligation is not fulfilled. National responsibility by administrative omission can also be applied when the form of action is administrative guidance. Of course, some point out that it is difficult to recognize the existence of a duty of action due to the randomness. However, if the probability of avoiding or mitigating damage to life and health can be increased by providing administrative guidance, its effectiveness can be verified. In addition, the obligation of administrative guidance can be actively interpreted even though the requirements for exercising administrative authority are not met, or administrative guidance is forced to respond to risks immediately due to time constraints.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"17 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":"115340466","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.2023.39.1.263
Do-hee Jeong
Types of violence against women are wide and varied. Among various types of violence, the current acts are “segmentally” legislated on domestic violence, sexual violence, and prostitution, and are divided into legislation to punish perpetrators and protect victims. The need for an integrated support system for victims of violence against women and comprehensive legislation continued, and after intense debate in our society, the 「Framework Act on Prevention of Violence Against Women」 was enacted in December 2018 and implemented in 2019. The Act is a comprehensive act that comprehensively regulates violence against women, which had previously been individually regulated and takes into consideration the expansion of violence against women by reflecting a new type of violence against women. It clarifies the responsibility of the state for the prevention of violence against women and protection and support for victims, stipulates the promotion of violence against women policies, and supports victims of violence against women by reflecting the specificity of violence against women and establishing consistent statistics with the victim support system. It was intended to increase the effectiveness of the policy. In the process of enacting this Act, there was a conflict of opinions for and against it, and discussions on the need for revision are still being conducted. This paper aims to propose a supplement to the current 「Framework Act on Prevention of Violence Against Women」, and to this end, introduces a legislative example of Spain, which may be unfamiliar to us. Spain has enacted and implemented the 「Organic Act 1/2004 of 28 December on Integrated Protection Measures against Gender Violence」( 「Ley Orgánica 1/2004, de 28 de diciembre, de Medidas de Proteccióon Integral contra la Violencia de Género」). In Spain, this Act was enacted under the awareness that domestic violence was frequent in the past, that women's rights, which had been neglected, should be strongly protected through legislation, and that an equal power structure between men and women should be formed. This Act is for responding to cases of gender violence, reporting to the police after an incident occurs, providing medical support to victims, and providing social welfare services, women's shelters, and counseling services. In September 2022, Spain also made amendments to the Criminal Code that strengthened the punishment of sexual violence crimes and the protection of victims. Examining Spain's legislative examples can give an idea for revising or responding to our 「Framework Act on Prevention of Violence Against Women」. In particular, the victim protection order system is worth introducing in the 「Framework Act on Prevention of Violence Against Women」. This paper reviews the rights of victims of violence against women, types of violence against women, legislative examples related to support for violence against women in Spain, and major contents, criticisms of the current 「Framework A
针对妇女的暴力行为种类繁多。在各种类型的暴力中，目前的法案对家庭暴力、性暴力和卖淫进行了“分段”立法，并分为惩罚加害者和保护受害者的立法。对暴力侵害妇女行为受害者的综合支持系统和全面立法的需求仍在继续，经过我国社会的激烈辩论，2018年12月颁布了《防止暴力侵害妇女行为框架法》，并于2019年实施。该法案是一项综合法案，全面管制对妇女的暴力行为，以前是单独管制的，并考虑到对妇女的暴力行为的扩大，反映了一种新的对妇女的暴力行为。它明确了国家预防对妇女的暴力行为以及保护和支持受害者的责任，规定了促进对妇女的暴力行为的政策，并通过反映对妇女暴力行为的特殊性和建立与受害者支持系统一致的统计数据来支持对妇女的暴力行为受害者。这是为了提高政策的有效性。在制定该法案的过程中，出现了赞成和反对意见的矛盾，目前还在讨论修改的必要性。本文旨在对现行的《防止对妇女的暴力行为框架法》提出一项补充，并为此介绍了西班牙的一个立法实例，这可能是我们不熟悉的。西班牙颁布并实施了“12月28日关于防止性别暴力综合保护措施的第1/2004号组织法”(“Ley Orgánica 1/2004, de 28 de diciembre, de Medidas de Proteccióon整体反对性别暴力”)。在西班牙，这项法令是在认识到过去经常发生家庭暴力的情况下颁布的，妇女的权利受到忽视，应通过立法予以有力保护，并应形成男女之间平等的权力结构。该法的目的是对性别暴力案件作出反应，在事件发生后向警方报告，向受害者提供医疗支助，以及提供社会福利服务、妇女庇护所和咨询服务。2022年9月，西班牙还修订了《刑法》，加强了对性暴力犯罪的惩罚和对受害者的保护。研究西班牙的立法实例可以为修订或回应我们的《防止对妇女的暴力行为框架法》提供思路。特别是，在《防止对妇女的暴力行为框架法》中，受害者保护令制度值得引入。本文审查了对妇女的暴力行为受害者的权利、对妇女的暴力行为类型、与西班牙支持对妇女的暴力行为有关的立法实例、主要内容、对现行《防止对妇女的暴力行为框架法》的批评以及寻求改进的措施。本文强调通过扩大对妇女的暴力行为和对妇女的暴力行为受害者的定义、澄清二次受害者损害条款、扩大对不利待遇的禁止以及建立和修订规定来弥补不足。
{"title":"Violence against Women and Proposal for the Framework Act on Prevention of Violence against Women","authors":"Do-hee Jeong","doi":"10.22397/wlri.2023.39.1.263","DOIUrl":"https://doi.org/10.22397/wlri.2023.39.1.263","url":null,"abstract":"Types of violence against women are wide and varied. Among various types of violence, the current acts are “segmentally” legislated on domestic violence, sexual violence, and prostitution, and are divided into legislation to punish perpetrators and protect victims. The need for an integrated support system for victims of violence against women and comprehensive legislation continued, and after intense debate in our society, the 「Framework Act on Prevention of Violence Against Women」 was enacted in December 2018 and implemented in 2019. The Act is a comprehensive act that comprehensively regulates violence against women, which had previously been individually regulated and takes into consideration the expansion of violence against women by reflecting a new type of violence against women. It clarifies the responsibility of the state for the prevention of violence against women and protection and support for victims, stipulates the promotion of violence against women policies, and supports victims of violence against women by reflecting the specificity of violence against women and establishing consistent statistics with the victim support system. It was intended to increase the effectiveness of the policy. In the process of enacting this Act, there was a conflict of opinions for and against it, and discussions on the need for revision are still being conducted. This paper aims to propose a supplement to the current 「Framework Act on Prevention of Violence Against Women」, and to this end, introduces a legislative example of Spain, which may be unfamiliar to us. Spain has enacted and implemented the 「Organic Act 1/2004 of 28 December on Integrated Protection Measures against Gender Violence」( 「Ley Orgánica 1/2004, de 28 de diciembre, de Medidas de Proteccióon Integral contra la Violencia de Género」). In Spain, this Act was enacted under the awareness that domestic violence was frequent in the past, that women's rights, which had been neglected, should be strongly protected through legislation, and that an equal power structure between men and women should be formed. This Act is for responding to cases of gender violence, reporting to the police after an incident occurs, providing medical support to victims, and providing social welfare services, women's shelters, and counseling services. In September 2022, Spain also made amendments to the Criminal Code that strengthened the punishment of sexual violence crimes and the protection of victims. Examining Spain's legislative examples can give an idea for revising or responding to our 「Framework Act on Prevention of Violence Against Women」. In particular, the victim protection order system is worth introducing in the 「Framework Act on Prevention of Violence Against Women」. This paper reviews the rights of victims of violence against women, types of violence against women, legislative examples related to support for violence against women in Spain, and major contents, criticisms of the current 「Framework A","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"115 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":"121265783","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.2023.39.1.3
S. Huh
What should the government do if they fail to unlock or hack suspect’s locked or encrypted smartphone when executing a legitimate search and seizure warrant? Currently, in South Korea, there is no criminal provision to punish someone for refusing the government’s request to unlock the smartphone. In contrast, Article 49(2) of the Regulation of Investigatory Powers Act 2000 in the U.K., Article 434-15-2 of the French Criminal Code, and Article 3LA of the Crimes Act 1914 in Australia allow the government to require anyone to cooperate in unlocking or decrypting his or her smartphone in limited conditions. The courts in the U.S. have laid down different decisions on the issue of whether compelling the suspect to produce the smartphone in a condition of being unlocked or encrypted is repugnant to his or her privilege against self-incrimination under the Fifth Amendment. The courts, then, have ruled that there would be an exception to the privilege when any potential testimonial communication is the “foregone conclusion doctrine” that adds little or nothing to the total sum of the government’s information. Courts, therefore, usually order suspect to unlock or decrypt his or her smartphone when the government can independently prove some facts regarding the doctrine despite the suspect’s privilege. The courts have indirectly compelled suspect to unlock or encrypt his or her smartphone by holding the suspect in contempt of court if he or she fails to do so. The right to remain silent under the Constitution of the Republic of Korea is not an absolute constitutional right, therefore the right may be limited only by a statutory Act if necessary. According to the proportionality doctrine, it is time to consider if we should adopt a new law which allows courts to order suspect to unlock or decrypt his or her smartphone or to issue a warrant requesting his or her to cooperate with the government by unlocking or decrypting it on condition that the government reasonably places his or her a suspicion of committing a serious felony viewed on the prosecution service’s request and submitted evidence showing the facts not only that it would be impossible or seriously difficult to collect evidence through other investigative methods but also that it seems reasonable to conclude that the suspect knows the passwords and the government identifies the contents it seeks with reasonable particularity.
{"title":"The Refusal to Unlock His/Her Smartphone and Contempt of Court under the Laws of the United States","authors":"S. Huh","doi":"10.22397/wlri.2023.39.1.3","DOIUrl":"https://doi.org/10.22397/wlri.2023.39.1.3","url":null,"abstract":"What should the government do if they fail to unlock or hack suspect’s locked or encrypted smartphone when executing a legitimate search and seizure warrant? Currently, in South Korea, there is no criminal provision to punish someone for refusing the government’s request to unlock the smartphone. In contrast, Article 49(2) of the Regulation of Investigatory Powers Act 2000 in the U.K., Article 434-15-2 of the French Criminal Code, and Article 3LA of the Crimes Act 1914 in Australia allow the government to require anyone to cooperate in unlocking or decrypting his or her smartphone in limited conditions. The courts in the U.S. have laid down different decisions on the issue of whether compelling the suspect to produce the smartphone in a condition of being unlocked or encrypted is repugnant to his or her privilege against self-incrimination under the Fifth Amendment. The courts, then, have ruled that there would be an exception to the privilege when any potential testimonial communication is the “foregone conclusion doctrine” that adds little or nothing to the total sum of the government’s information. Courts, therefore, usually order suspect to unlock or decrypt his or her smartphone when the government can independently prove some facts regarding the doctrine despite the suspect’s privilege. The courts have indirectly compelled suspect to unlock or encrypt his or her smartphone by holding the suspect in contempt of court if he or she fails to do so. The right to remain silent under the Constitution of the Republic of Korea is not an absolute constitutional right, therefore the right may be limited only by a statutory Act if necessary. According to the proportionality doctrine, it is time to consider if we should adopt a new law which allows courts to order suspect to unlock or decrypt his or her smartphone or to issue a warrant requesting his or her to cooperate with the government by unlocking or decrypting it on condition that the government reasonably places his or her a suspicion of committing a serious felony viewed on the prosecution service’s request and submitted evidence showing the facts not only that it would be impossible or seriously difficult to collect evidence through other investigative methods but also that it seems reasonable to conclude that the suspect knows the passwords and the government identifies the contents it seeks with reasonable particularity.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"11 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":"125954503","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.2023.39.1.113
Soohan Lee, Gyeo-Cheol Lim
Today, the exchange of information is mostly done through electronic media. The utilization of services that store data in the network is also increasing. This changed modern lifestyle led to a change in the form of evidence, and most of the evidence existed in the form of electronic information. Not only can digital evidence be digitized and stored, but it can also occur the possibility that the information is stored on overseas servers. The term “Offshore seizure and search” refers to a seizure and search method in which an investigative agency accesses an overseas server using the account information of the investigative agency or designated place to secure relevant evidence when it finds out the account ID and password of an investigated person's overseas server. There are various discussions on the procedural legality, such as the Seoul High Court making different rulings on these methods of seizure and search. The current Criminal Procedure Act regulates digital evidence through the proviso to Articles 106 (3) and 4 and 114 (1), but offshore seizure and search are only indirectly regulated through Article 120. The “necessary disposition” of Article 120 (1) of the Criminal Procedure Act allows offshore seizure and search procedures, and the law takes “opening or opening a gun,” but there is disagreement on whether accessing an overseas server and obtaining digital information can be seen as a similar procedure. As such, the current Criminal Procedure Act was revised as digital evidence increased, but there is a limit to properly regulate evidence in a rapidly changing modern network environment. As previously confirmed, the Supreme Court seems to be trying to resolve the blind spots of the Criminal Procedure Act by establishing strict legal principles on the procedure while affirming offshore seizure and search through precedents. In the case of the United States and Germany, the institutional basis for offshore seizure and search is established through the revision of the law, while regulating its restrictions to explore the truth and minimize infringement of basic rights. The Korean Supreme Court is also developing the law of offshore seizure and search through the 2020 14654 and 2022 1452 rulings, but it will be difficult to secure legal justification for the collection of electronic information evidence that will gradually diversify only with the expanded interpretation of Article 120 of the Criminal Procedure Act. In order to solve these problems, it is necessary to stipulate procedural regulations through the specification of offshore seizure and search requirements. Since seizure and search are procedures that limit the basic rights of private persons, it is believed that the procedures and requirements stipulated by law will not contradict general principles of criminal law, such as the principle of due process, compulsory disposition, or prohibition of analogical interpretation. As the Supreme Court of Korea also establishes legal p
{"title":"A Review on the Direction of Legislative Improvement of Electronic Information Offshore Seizure and Search","authors":"Soohan Lee, Gyeo-Cheol Lim","doi":"10.22397/wlri.2023.39.1.113","DOIUrl":"https://doi.org/10.22397/wlri.2023.39.1.113","url":null,"abstract":"Today, the exchange of information is mostly done through electronic media. The utilization of services that store data in the network is also increasing. This changed modern lifestyle led to a change in the form of evidence, and most of the evidence existed in the form of electronic information. Not only can digital evidence be digitized and stored, but it can also occur the possibility that the information is stored on overseas servers. The term “Offshore seizure and search” refers to a seizure and search method in which an investigative agency accesses an overseas server using the account information of the investigative agency or designated place to secure relevant evidence when it finds out the account ID and password of an investigated person's overseas server. There are various discussions on the procedural legality, such as the Seoul High Court making different rulings on these methods of seizure and search. The current Criminal Procedure Act regulates digital evidence through the proviso to Articles 106 (3) and 4 and 114 (1), but offshore seizure and search are only indirectly regulated through Article 120. The “necessary disposition” of Article 120 (1) of the Criminal Procedure Act allows offshore seizure and search procedures, and the law takes “opening or opening a gun,” but there is disagreement on whether accessing an overseas server and obtaining digital information can be seen as a similar procedure. As such, the current Criminal Procedure Act was revised as digital evidence increased, but there is a limit to properly regulate evidence in a rapidly changing modern network environment. As previously confirmed, the Supreme Court seems to be trying to resolve the blind spots of the Criminal Procedure Act by establishing strict legal principles on the procedure while affirming offshore seizure and search through precedents. In the case of the United States and Germany, the institutional basis for offshore seizure and search is established through the revision of the law, while regulating its restrictions to explore the truth and minimize infringement of basic rights. The Korean Supreme Court is also developing the law of offshore seizure and search through the 2020 14654 and 2022 1452 rulings, but it will be difficult to secure legal justification for the collection of electronic information evidence that will gradually diversify only with the expanded interpretation of Article 120 of the Criminal Procedure Act. In order to solve these problems, it is necessary to stipulate procedural regulations through the specification of offshore seizure and search requirements. Since seizure and search are procedures that limit the basic rights of private persons, it is believed that the procedures and requirements stipulated by law will not contradict general principles of criminal law, such as the principle of due process, compulsory disposition, or prohibition of analogical interpretation. As the Supreme Court of Korea also establishes legal p","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"12 3","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120872862","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.2023.39.1.365
Z. Zen
The Constitution guarantees freedom of religion. It is doubtful whether meditation is included in the protection of religious freedom. Traditionally, meditation has been used as a means to achieve religious goals. Modern meditation is losing its religiosity. In other words, modern meditation is changing into secularity, popularity, and industrialization. The secularization of meditation calls for a reinterpretation of the concept of religion. The concept of meditation is no longer limited to religion. Meditation is an expansion of an open concept in which the religious dimension and the secular dimension correspond or separate. Meditation cannot be embraced as a religion and set as a uniform protection area for religious freedom. The state should consider the scope of religion to protect religious freedom. There is no agreed upon constitutional definition. A constitutional answer to this is required. This is because a new interpretation is needed for peaceful coexistence between the two different concepts under the constitutional order. The constitutional issues regarding meditation are largely organized into three categories. First, is meditation a religion? Second, what is the concept of meditation in the constitution? Third, what is the relationship between freedom of religion and meditation? It is possible to try an effective constitutional interpretation of religious freedom by dividing it into religious meditation and secular meditation. In the case of religious meditation, it is a means to the only end pursued by religion. Unlike this, in the case of secular meditation, a reasonable constitutional interpretation must be premised in that it is a practice of life to internally experience the various purposes of each person. This study considers whether it is legitimate to regard meditation with religiousness as the realm of freedom of religion, but in the case of meditation with secularity, as the realm of freedom from religion. To prove this, the concept of religion and meditation, and freedom of religion and freedom from religion in the Constitution were distinguished and explored. The specific content of freedom from religion was reviewed by grafting the concept of meditation on the freedom of unbelief, freedom of non-religious activities, freedom of non-religious assembly and assembly, and the limits of freedom from religion. And, tentatively named 'freedom of religious meditation' and 'freedom of secular meditation' derived from freedom of religion and freedom from religion are presented. The purpose of this study is to suggest the direction of legal interests by setting the concept of religion and meditation in the Constitution and the scope of protection of the basic rights of religious meditation and secular meditation that may conflict through the interpretation of the Constitution.
{"title":"Constitutional Interpretation of Religious Freedom and Meditation","authors":"Z. Zen","doi":"10.22397/wlri.2023.39.1.365","DOIUrl":"https://doi.org/10.22397/wlri.2023.39.1.365","url":null,"abstract":"The Constitution guarantees freedom of religion. It is doubtful whether meditation is included in the protection of religious freedom. Traditionally, meditation has been used as a means to achieve religious goals. Modern meditation is losing its religiosity. In other words, modern meditation is changing into secularity, popularity, and industrialization. The secularization of meditation calls for a reinterpretation of the concept of religion. The concept of meditation is no longer limited to religion. Meditation is an expansion of an open concept in which the religious dimension and the secular dimension correspond or separate. Meditation cannot be embraced as a religion and set as a uniform protection area for religious freedom. The state should consider the scope of religion to protect religious freedom. There is no agreed upon constitutional definition. A constitutional answer to this is required. This is because a new interpretation is needed for peaceful coexistence between the two different concepts under the constitutional order. The constitutional issues regarding meditation are largely organized into three categories. First, is meditation a religion? Second, what is the concept of meditation in the constitution? Third, what is the relationship between freedom of religion and meditation? It is possible to try an effective constitutional interpretation of religious freedom by dividing it into religious meditation and secular meditation. In the case of religious meditation, it is a means to the only end pursued by religion. Unlike this, in the case of secular meditation, a reasonable constitutional interpretation must be premised in that it is a practice of life to internally experience the various purposes of each person. This study considers whether it is legitimate to regard meditation with religiousness as the realm of freedom of religion, but in the case of meditation with secularity, as the realm of freedom from religion. To prove this, the concept of religion and meditation, and freedom of religion and freedom from religion in the Constitution were distinguished and explored. The specific content of freedom from religion was reviewed by grafting the concept of meditation on the freedom of unbelief, freedom of non-religious activities, freedom of non-religious assembly and assembly, and the limits of freedom from religion. And, tentatively named 'freedom of religious meditation' and 'freedom of secular meditation' derived from freedom of religion and freedom from religion are presented. The purpose of this study is to suggest the direction of legal interests by setting the concept of religion and meditation in the Constitution and the scope of protection of the basic rights of religious meditation and secular meditation that may conflict through the interpretation of the Constitution.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"1 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":"131053320","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.2023.39.1.183
Hyeon-su Kim
There was a conflict between the judgment of the lower court and the Supreme Court regarding the adequacy of the right of defense granted to public officials in disciplinary proceedings. In other words, the Supreme Court made a judgment 2022du33323 on July 14, 2022, which is against the original trial in the lower court (2020nu52759, sentenced by Seoul High Court, on January 13). the Supreme Court judged that there is a reason not to disclose the victim's personal information and that The disciplinary agency fully guaranteed the right to defend. Also, the Supreme Court judged that the plaintiff knew who the anonymous victims were and there was no problem with the plaintiff's exercise of defense rights. However, the Supreme Court’s judgement, 2022du33323 has the following problems. First of all, it was used as a basis for judging that there was no problem in guaranteeing the plaintiff's right to defense during the disciplinary process due to the fact that there was no objection that the victim was not specified during the disciplinary process. Secondly, It was wrong to dismiss the plaintiff’s claim, citing the situation in which the plaintiff was already aware of the victim while allowing the anonymous treatment of the witness due to the victim's secondary damage. Lastly, It is unfair to cause the plaintiff to fundamentally lose the opportunity to deny his or her disciplinary charges. For this reason, it is thought that a disciplinary agency, the defendant violated the plaintiff's right to defend, and that the Supreme Court's judgment ignored the principle of due process in this case. Paradoxically, 2022du33323 demonstrated the need for institutional supplementation in the following areas of the disciplinary process. Among them, this paper presents three supplementary points. ① First of all, the administrative agency sufficiently informs the person of the right to participate in an attorney until the time of disciplinary action, so that the person subject to disciplinary action is given an opportunity to utilize it. ② Next, The Appeal Review Committee shall facilitate the submission of data by both parties apart from keeping the victim confidential. ③ Lastly, in disciplinary action, the victim's personal information, reasons for disciplinary action, and the contents of disciplinary action must be disclosed to the parties, and the Defendant Administrative Agency must faithfully prove the contents of the disciplinary action. In the end, such institutional improvements are necessary to ensure the principle of due process. by improvements, it is expected that the person subject to disciplinary action will exercise the right to defend more effectively in the disciplinary process and that an appropriate level of relief will be achieved.
{"title":"Thoughts on Guaranteeing the Right to Defense of the Person under Disciplinary Action","authors":"Hyeon-su Kim","doi":"10.22397/wlri.2023.39.1.183","DOIUrl":"https://doi.org/10.22397/wlri.2023.39.1.183","url":null,"abstract":"There was a conflict between the judgment of the lower court and the Supreme Court regarding the adequacy of the right of defense granted to public officials in disciplinary proceedings. In other words, the Supreme Court made a judgment 2022du33323 on July 14, 2022, which is against the original trial in the lower court (2020nu52759, sentenced by Seoul High Court, on January 13). the Supreme Court judged that there is a reason not to disclose the victim's personal information and that The disciplinary agency fully guaranteed the right to defend. Also, the Supreme Court judged that the plaintiff knew who the anonymous victims were and there was no problem with the plaintiff's exercise of defense rights. However, the Supreme Court’s judgement, 2022du33323 has the following problems. First of all, it was used as a basis for judging that there was no problem in guaranteeing the plaintiff's right to defense during the disciplinary process due to the fact that there was no objection that the victim was not specified during the disciplinary process. Secondly, It was wrong to dismiss the plaintiff’s claim, citing the situation in which the plaintiff was already aware of the victim while allowing the anonymous treatment of the witness due to the victim's secondary damage. Lastly, It is unfair to cause the plaintiff to fundamentally lose the opportunity to deny his or her disciplinary charges. For this reason, it is thought that a disciplinary agency, the defendant violated the plaintiff's right to defend, and that the Supreme Court's judgment ignored the principle of due process in this case. Paradoxically, 2022du33323 demonstrated the need for institutional supplementation in the following areas of the disciplinary process. Among them, this paper presents three supplementary points. ① First of all, the administrative agency sufficiently informs the person of the right to participate in an attorney until the time of disciplinary action, so that the person subject to disciplinary action is given an opportunity to utilize it. ② Next, The Appeal Review Committee shall facilitate the submission of data by both parties apart from keeping the victim confidential. ③ Lastly, in disciplinary action, the victim's personal information, reasons for disciplinary action, and the contents of disciplinary action must be disclosed to the parties, and the Defendant Administrative Agency must faithfully prove the contents of the disciplinary action. In the end, such institutional improvements are necessary to ensure the principle of due process. by improvements, it is expected that the person subject to disciplinary action will exercise the right to defend more effectively in the disciplinary process and that an appropriate level of relief will be achieved.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"1 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":"124631314","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.2023.39.1.325
seong joon Yeon
Repairs for defects occurring in apartment houses are directly related to the right of residents to live in a pleasant environment. In addition, since disputes over defects in apartment houses fall under disputes in the professional realm, it is more effective to use dispute resolution systems that replace litigation, such as mediation and arbitration, rather than resolving disputes through litigation. Currently, the Ministry of Land, Infrastructure and Transport's Defect Review and Dispute Mediation Committee is resolving disputes regarding defects in apartment complexes through the Defect Review and Dispute Settlement System. On the other hand, the arbitration system in relation to apartment housing defect disputes requires an arbitration agreement, is characterized by a single trial system, and a private trial, so it is not actively utilized compared to other ADR mediations. However, in the case of defect disputes, the criteria for determining defects change according to the times, the disputes are in professional fields such as architectural design and construction technology, and the conclusion of the dispute can be different even if the same phenomenon occurs depending on the region, place, culture, environment, contract, etc. It is a compulsory dispute resolution method based on the fact that it can appoint a person with professional knowledge in the field as an arbitrator to accurately find out the substantive truth, leading to a decision including legal knowledge and academic theories. Arbitration, which is located in the middle between trial and reconciliation or mediation, which is a method of independent dispute resolution, can be seen as more suitable for defect disputes. However, in order to introduce a harmonious arbitration of defect disputes, it is desirable to stipulate through an optional arbitration agreement within the apartment supply contract (or standard contract). In addition, since defect disputes are an area where the results can be interpreted differently depending on experts, the principle of confidentiality of the agreement of the arbitration tribunal and the plan to allow the writing of minority opinions within the scope of not harming the fairness and independence of arbitrators are also introduced. should be considered. Regarding arbitration institutions, the dualization of dispute resolution systems (arbitration, finance, mediation, etc.) operating institutions cannot present unified standards, causes confusion in system operation, and confusion among end users, such as residents. unification will be required.
{"title":"Current status of apartment housing defect dispute resolution system and arbitration system","authors":"seong joon Yeon","doi":"10.22397/wlri.2023.39.1.325","DOIUrl":"https://doi.org/10.22397/wlri.2023.39.1.325","url":null,"abstract":"Repairs for defects occurring in apartment houses are directly related to the right of residents to live in a pleasant environment. In addition, since disputes over defects in apartment houses fall under disputes in the professional realm, it is more effective to use dispute resolution systems that replace litigation, such as mediation and arbitration, rather than resolving disputes through litigation. Currently, the Ministry of Land, Infrastructure and Transport's Defect Review and Dispute Mediation Committee is resolving disputes regarding defects in apartment complexes through the Defect Review and Dispute Settlement System. On the other hand, the arbitration system in relation to apartment housing defect disputes requires an arbitration agreement, is characterized by a single trial system, and a private trial, so it is not actively utilized compared to other ADR mediations. However, in the case of defect disputes, the criteria for determining defects change according to the times, the disputes are in professional fields such as architectural design and construction technology, and the conclusion of the dispute can be different even if the same phenomenon occurs depending on the region, place, culture, environment, contract, etc. It is a compulsory dispute resolution method based on the fact that it can appoint a person with professional knowledge in the field as an arbitrator to accurately find out the substantive truth, leading to a decision including legal knowledge and academic theories. Arbitration, which is located in the middle between trial and reconciliation or mediation, which is a method of independent dispute resolution, can be seen as more suitable for defect disputes. However, in order to introduce a harmonious arbitration of defect disputes, it is desirable to stipulate through an optional arbitration agreement within the apartment supply contract (or standard contract). In addition, since defect disputes are an area where the results can be interpreted differently depending on experts, the principle of confidentiality of the agreement of the arbitration tribunal and the plan to allow the writing of minority opinions within the scope of not harming the fairness and independence of arbitrators are also introduced. should be considered. Regarding arbitration institutions, the dualization of dispute resolution systems (arbitration, finance, mediation, etc.) operating institutions cannot present unified standards, causes confusion in system operation, and confusion among end users, such as residents. unification will be required.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"16 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":"125126425","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.2023.39.1.159
Jung-Hyun Phee, J. Bae
Article 216 of the Civil Procedure Act stipulates that in paragragh 1, a final judgement has res judicata only if it is included in the order. Even if the judgement is confirmed, if the judgement in the grounds of judgement is not binding, the dispute may be reproduced and the judgements in the grounds of judgement may be contradictory, so it is a question of whether to recognize the res judicata in the grounds of judgement. On the other hand, as an exception, the determinatioin of whether or not a claim claiming offset in paragragh 2 is established is determined to have res judicata only for the amount opposed to offset. The purpose of acknowledging the res judicata in the court’s judgement on the offset claim is that if the res judicata is not recognized, the dispute over the existence of the plaintiff’s claim will be transformed into a dispute over the existence of the counterclaim filed in another lawsuit, preventing the counterclaim from double exercising the counterclaim. Therefore, in order to understand the legal principles according to the purpose in detail, this paper examined the res judicata power of the countervailing defense. First, the requirements for recognizing res judicata will be divided into automatic bonds and passive bonds. In the former, we will examine whether the court's practical judgement on automatic bonds is necessary, whether the precedent (suspension condition theory) that the judicial effect of the countervailing defense is appropriate, and whether the expression of intention to set off, which is the originally effective time, reaches the other party (revocation condition theory). In the latter case, the existence of passive bonds and whether the passive claims are claims judged as litigation items (or equivalent thereto) are problematic. And, in the case where the defendant makes a defense of set-off, we will review whether it is lawful for the plaintiff to submit a set-off (namely, litigation set-off and non-litigation set-off) as a re-defense. This will be considered in consideration of not only the substantive legal aspect that passive claims must exist, but also the litigation policy aspect of maintaining the stability of the litigation process and eliminating complexity. In addition, we examine the objective scope of the substrate power recognized in countervailing defense, especially if the automatic bond exceeds the passive bond amount, and if the court recognizes only a part of the claim (manual) bond amount, some of the multiple automatic bonds are recognized and some are not recognized. Furthermore, we will look at the positive and negative theories on whether res judicata are recognized in countervailing disputes other than litigation.
{"title":"res judicata of Countervailing Defense","authors":"Jung-Hyun Phee, J. Bae","doi":"10.22397/wlri.2023.39.1.159","DOIUrl":"https://doi.org/10.22397/wlri.2023.39.1.159","url":null,"abstract":"Article 216 of the Civil Procedure Act stipulates that in paragragh 1, a final judgement has res judicata only if it is included in the order. Even if the judgement is confirmed, if the judgement in the grounds of judgement is not binding, the dispute may be reproduced and the judgements in the grounds of judgement may be contradictory, so it is a question of whether to recognize the res judicata in the grounds of judgement. On the other hand, as an exception, the determinatioin of whether or not a claim claiming offset in paragragh 2 is established is determined to have res judicata only for the amount opposed to offset. The purpose of acknowledging the res judicata in the court’s judgement on the offset claim is that if the res judicata is not recognized, the dispute over the existence of the plaintiff’s claim will be transformed into a dispute over the existence of the counterclaim filed in another lawsuit, preventing the counterclaim from double exercising the counterclaim. Therefore, in order to understand the legal principles according to the purpose in detail, this paper examined the res judicata power of the countervailing defense. First, the requirements for recognizing res judicata will be divided into automatic bonds and passive bonds. In the former, we will examine whether the court's practical judgement on automatic bonds is necessary, whether the precedent (suspension condition theory) that the judicial effect of the countervailing defense is appropriate, and whether the expression of intention to set off, which is the originally effective time, reaches the other party (revocation condition theory). In the latter case, the existence of passive bonds and whether the passive claims are claims judged as litigation items (or equivalent thereto) are problematic. And, in the case where the defendant makes a defense of set-off, we will review whether it is lawful for the plaintiff to submit a set-off (namely, litigation set-off and non-litigation set-off) as a re-defense. This will be considered in consideration of not only the substantive legal aspect that passive claims must exist, but also the litigation policy aspect of maintaining the stability of the litigation process and eliminating complexity. In addition, we examine the objective scope of the substrate power recognized in countervailing defense, especially if the automatic bond exceeds the passive bond amount, and if the court recognizes only a part of the claim (manual) bond amount, some of the multiple automatic bonds are recognized and some are not recognized. Furthermore, we will look at the positive and negative theories on whether res judicata are recognized in countervailing disputes other than litigation.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"14 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":"116506845","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}
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