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ART001724555 | oai_dc | 21세기 법치국가의 법률복지 방향과 제도 설계 | Suggesting New Directions in Designing Legal Welfare System | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"정종섭(서울대학교)"
] | Legal aid is a system that allows fulfilling the rule of law which the Constitution defines. Also, it allows a welfare state to realize the legal welfare service system. Having and fully utilizing an effective system that protects the rights of citizen, like the legal aid, strengthen a constitutional state. Therefore, it is crucial to understand the need and importance of the legal aid more thoroughly.
Republic of Korea has been putting efforts in developing the system of legal aid. However, in current circumstance, it is not enough to fill the demand. Moreover, due to the rapid change in society and legal service, there is a need to shift the paradigm in constructing and developing the legal aid.
In this respect, it is necessary to secure more material and human resources to reinforce the original purpose of the legal aid, and to put effort to upgrade the current system to find a new function in constructing an advanced rule of law and a welfare state.
In order to do so, the increase in budget to secure the resources is indispensable. Moreover, the legal aid program should be diversified to suit the idea of the twentieth-first century’s constitutional state while adopting judicare system from other advanced nations as well. However, foremostly, Korea Legal Aid Corporation should go through macroscopic reform to become the control tower in this process. In this respect, it is also required to change the concept of legal aid into the concept of legal assist. | 법학 | null | kci_detailed_000149.xml | |||
ART001724975 | oai_dc | 지방의회 인사청문회에 관한 법적 고찰 | A Study on the Confirmation Hearings of the Local Assembly | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"임영덕(서울대학교); 신가은(서울특별시)"
] | The confirmation hearings in law means an institutional framework to prevent administration as a regime to verify in National Assembly whether the top rank officer of the administration, commissioned by the president, has the ability and qualification to fulfill their duties.
We introduced the confirmation hearings through the revision of the National Assembly Act in 1988. The local assembly is recently moving forward with introduction of the confirmation hearings, recognized as a exclusive property of the Nation Assembly.
The introduction of the confirmation hearings in local self-government needs to be checks and balances between bodies of the local self-government, to satisfy the right to know of inhabitants and to verify public officers.
The precedent and administration has insisted that the confirmation regulation for the head of government-affiliated organization in the Framework Ordinance on the Seoul Metropolitan Council violate the power of the local government head because the Local Public Enterprises Act is enacted that the head of government-affiliated organization should be appointed by the local government head. However, verification regime of the ordinance, not proactive and active but the posteriori and passive, is not mean as a violating regulation the right of the mayor and it need to be allowed to checks and surveillance of the council for the enforcing authority.
Furthermore, the introduce of pro-verification is needed to improve meaning and effectivity of confirmation hearings. To achieve this, the local assembly should urge strongly to revise of law that stands above ordinations. Because deprivation on the power of confirmation hearings or verification of the local assembly is not match with intent of the local self-government and the decentralization system. Also, The National Assembly has had a confirmation hearings for the top public officer of the Administration and the Judiciary. Thus,The Local Assembly will be worth consideration on target expansion of confirmation hearings. | 법학 | null | kci_detailed_000149.xml | |||
ART001724990 | oai_dc | 공안사범자료관리의 법적 문제점에 대한 검토 | The Review on the Legal Matters of Management of the Data of Public Safety Offenders | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"류제성(부산지방법원 )"
] | This research examines the current condition of the data on public safety offenders, which is computerized and managed according to the Provision on the Data of Public Safety Offenders, a presidential directive, and assesses the legal issues concerning the Provision with the aim of proposing reform measures.
The state has carried out a broad range of surveillance on people who have opposed or criticized the government and, based on these surveillance, has indiscriminately collected sensitive private information. This information has been computerized and kept on file for use by the government. However, this kind of collecting of private information has no legal basis, and the subject of the information cannot exercise any right as he is not aware that his records are classified as public safety offense records. This hinders the rule of law and constitutes a serious human rights violation. Moreover, the current method of managing public safety offenders’ data constitutes a head-on violation of the Private Information Protection Act which imposes various restrictions as to the collection and use of private information.
The scope of public safety offenses based on the Provision on the Management of Data of Public Safety Offenders is too large and allows the possibility of arbitrary expansion by the government. Also, adding to the recently reinforced public safety functions, the Provisions guarantee the initiative of the prosecutor’s office regarding the management of the data of public safety offenders, raising concerns of abuse of authority and human rights violation on the part of the prosecutor’s office. Although the Provisions have been amended to slightly limit the scope of public safety offenses, fundamental corrections are yet to take place.
Above all, current conditions of the management of public safety offenders’data must be disclosed, and then the necessity to collect the information of public safety offenders must be assessed. If, as a result of the assessment,the collection of information is deemed necessary, appropriate acts must be established so that the scope, subject, requirements, etc of information collection is limited in a clear and specific manner and that the rights of the subject of the information is guaranteed. This is an inevitable demand of our constitution. | 법학 | null | kci_detailed_000149.xml | |||
ART001724903 | oai_dc | 풀러에서 법의 도덕의 문제 | On the problem of the morality of law in Lon. L. Fuller | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"염수균(조선대학교)"
] | Fuller thinks that his eight principles of legality are needed for any legal system to be legal. That those principles exist and they are constitutive principles of the rule of law is accepted by almost legal philosophers. The problem is the morality of those principles.
Fuller calls their morality internal morality of law. The internal morality is the morality of the action by which legal rules are enacted and applied, while the external morality is the morality of the rules themselves. Because the principles are not just efficient principles but ones by observance of which the action can be moral, the principles can be called moral principles and the concept of internal morality is sustained.
Fuller claims that principles of legality affect positively the morality of the laws which are enacted according to the principles. The claim presupposes that the legislators consciously respect the moral principles which are contained in the principles of legality and enact laws according to the moral principles. But the presupposition is not so evident that they need no justification. And even if they enacted the laws according to the moral motives, the laws would not necessarily become moral. For the most unjust rules were enacted by the idealists rather than wicked governors. Therefore the claim that the internal morality of law affect positively the external morality of law lacks proper foundation.
But the whole system of the law can be morally affected through the governor’s observance of the principles The definition of the wicked regime which the debate between Kramer and Simmonds presupposes cannot be accepted. Because the wicked regime must be defined not in terms of wickedness of governors’ motive but that of laws they enacted. | 법학 | null | kci_detailed_000149.xml | |||
ART001725030 | oai_dc | 일본군위안부사건에 대한 헌법재판소 결정의 평석 | On Constitutional Court Decisions Concerning the Case of Comfort Women Drafted into Japanese Armed Forces | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"이승우(가천대학교)"
] | The constitutional court has concluded that the South Korean government has yet to exercise its rights of diplomatic protection against the Japanese government concerning the case of comfort women formerly drafted into Japanese armed forces under Japanese colonial rule. The South Korean government has argued that cash reparation aside, “diplomatic avenues” were taken to provoke the role of the Japanese government in establishing economic support and compensation,conducting extensive investigation, making official statement of apology and remorse, and ensuring an integration of accurate historical recount into the education system. However, the constitutional court has seen the claim as one-sided diplomatic proclamation rather than diplomatic action. It is the position of the constitutional court that our government’s failure to fulfill the responsibility to protect our constituents should be considered a violation of fundamental human rights held by the claimants and therefore unconstitutional.
Despite the validity of the constitutional court’s conclusion, some aspects within its arguments are revealed as problematic. First, there is a lack of explanation on exactly which fundamental right has been under violation in regard to these comfort women. Second, a distinction between right to diplomatic protection as authority held by our government and right to diplomatic protection as demanded by the people remains unclear. Third, it can be confirmed from the court rulings that our government holds diplomatic responsibility to protect our constituents,but a logical deduction from such responsibility to people’s right to diplomatic protection is undemonstrated.
Concerning this case, the constitutional court should have been more thorough in its reasoning based on theories of state responsibility to protect fundamental human rights. The court did affirm the state’s responsibility to protect fundamental rights in accordance to article 10 of the constitution; it also pointed out to relevant legal grounds provided by the Treaty on Basic Relations between Japan and the Republic of Korea (1965). Our government has then found grounds for diplomatic responsibility to protect, and evaluated whether its implementation adequately followed the anti-overrestriction principle. On the other hand,reasoning by the constitutional court has not fully demonstrated that the claimants’fundamental right or their right to diplomatic protection actually stems from such diplomatic responsibility to protect. In fact, the court’s conclusion has failed to indicate that the issue of drawing fundamental rights from state responsibility to protect fundamental rights is subject to the discretion of our government,and that fundamental rights can only be drawn when such discretionary power becomes non-extant. | 법학 | null | kci_detailed_000149.xml | |||
ART001724942 | oai_dc | 사내변호사에 대한 변호인·의뢰인 특권 적용에 대한 연구 | The Corporate Attorney-Client Privilege in Korea | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"남희경(도이치증권); STEPHEN T. SCHUTZ(광운대학교)"
] | While there are laws and regulations that can be construed as providing some protection for the attorney-client privilege regarding communications between an attorney and its client in Korea there is no law that specifically addresses such protection for the communications between the corporate attorney and its client.
This article examines some of the dynamics of the corporate attorney-client privilege in Korea and abroad, with particular attention to those in the United States and the European Union. This article explores some of the major issues surrounding the corporate attorney-client privilege in relation to several U.S.
and EU cases. Although it is understood that in the context of criminal proceedings the right to be represented by legal counsel is protected by the Korean constitution,the right to be assisted by legal counsel in the context of administrative or civil proceedings is not specifically addressed in the law in Korea. With the increase in the number of corporations that are exposed to such administrative,civil and criminal proceedings, it is becoming increasingly important to examine whether the corporate attorney-client privilege should protected by law in Korea.
The article argues that such corporate attorney-client privilege will serve its function of protecting the constitutional rights without interfering with the judicial and/or administrative systems by allowing such protection for communications that are clearly legal advise or opinion. It further concludes that affording corporate attorney-client privilege protection will enhance the compliance of laws and regulations by corporations by fostering an atmosphere of trust and transparency within the corporate attorney and its client. | 법학 | null | kci_detailed_000149.xml | |||
ART001724722 | oai_dc | 법률복지개념의 헌법적 정당화와 발전방안: 법률구조의 패러다임 전환을 위한 시론 | A Constitutional Justification for A New Paradigm of Legal Welfare: Beyond a Supplementary Concept of Legal Aid | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김종철(연세대학교)"
] | This essay aims to search for a new paradigm for comprehensive legal welfare overcoming the traditional selective understanding of legal aid which has so far been understood as a supplementary scheme for the rule of law by way of guaranteeing the poor the right to access to justice.
Its main argument is that the traditional concept of legal aid constructed mainly upon a liberal ideal of rule of law reveals its inherent problem by focusing mainly upon a retrospective support of the poor in the litigation process; it fails to address the necessity for legal welfare to enhance civic autonomy of a democratic republic. In a democratic republic based upon voluntary participation of the citizens,not only retrospective legal aid but also sufficient preventive legal service together with legal education helping the citizen have an effective access to justice and the social welfare system are necessary to enhance civic autonomy of the citizen.
As the Korean Constitution clearly endorses, the human dignity and worth cannot be accomplished without social justice and public welfare. Sufficient and sustainable social welfare in turn requires a scheme of universal legal welfare covering not only litigation aid but also a variety of aids for alternative dispute resolution,public interest law activities and legal education service. In sum, social welfare and a democratic republic cannot be conceived without legal welfare.
One of key national tasks of Korean society in the coming future is how to strategically manage to implement this new concept of legal welfare to reinforce a democratic welfare republic. A desirable option proposed in this essay is a phased approach: the first stage concentrates upon perception change among key actors having a role in legal welfare system; the second stage focuses upon the institutionalization of the new paradigm such as reforms of legal welfare delivery system, legal welfare funding and legal service market; and the final stage quests for the proliferation of service beneficiary and the nationalization of legal welfare center. | 법학 | null | kci_detailed_000149.xml | |||
ART001724794 | oai_dc | 법률구조서비스 네트워크의 구축 | A study on the legal aid network | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"조지만(아주대학교)"
] | The legal aid delivery system is connecting various institutes for legal aid and people that demand legal service. And the legal aid delivery system considers both cost of delivery and satisfaction of consumers. The well-organized legal aid network is essential for the efficient legal aid delivery system. Consumers of legal aid can receive one-stop service through the well-organized legal aid network.
There are a number of institutes for legal aid, so a control tower is necessary to organize the legal aid network and provide one-stop legal aid. But there is no control tower in Korea. A control tower should be most accessible to consumers and independent from the state to guarantee access to justice. In this respect,Korea Legal Aid Corporation is the most proper institute for a control tower.
Korea Legal Aid Corporation needs to allot and control functions of other institutes for legal aid, Home-doctors of Ministry of Justice, and pro bono lawyers.
Korea Legal Aid Corporation also needs to establish local centers for direct legal advice and general legal aid centers for one-stop legal service to consumers.
It is especially important to the access to justice. And legal clinics of law schools are useful resources for the legal aid network. | 법학 | null | kci_detailed_000149.xml | |||
ART001724911 | oai_dc | 로펌의 사회적 책임을 위한 시론 | Corporate Social Responsibility for Law Firms | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"홍성수(숙명여자대학교)"
] | This article deals with corporate social responsibility for law firms in Korean context. Korean mega law firms have donated money or provided voluntary service for social facilities and, more recently, they have done pro bono service as well.
However, the point is that corporate social responsibility for law firms should not be limited to such activities but it should incorporate social responsibility which is given to lawyer as legal professionals. By referring to discussions on corporate social responsibility, this article tries to provide the contents of corporate social responsibility for law firms in relation to legal culture and practices in Korea. More concretely, this article suggests that corporate social responsibility for law firms could be 1) promoting rule of law, 2) anti-discrimination policy and diversity in law firms, 3) donation, social service, and pro bono service,4) education and training for trainee lawyers, 5) ethics in accepting cases, 6)responsibility for environment, 7) social reporting. In conclusion, some strategies to promote corporate social responsibility for law firms in Korea is suggested as follows. Mass media and evaluation organizations contributes to make law firms recognize social responsibility, but, considering Korean legal practices,the Korean Bar Association in which all lawyers is obliged to join could play an important role in enhancing the recognition of social responsibility for law firms. | 법학 | null | kci_detailed_000149.xml | |||
ART001725053 | oai_dc | 헌법재판소는 법원 재판의 당부를 심사할 수 있는가?: 헌재 2012. 5. 31. 2009헌바123ㆍ126(병합) | Can the Constitutional Court review right or wrong of court's judgement?: 2009Hun-Ba123 ․126(consolidated), May 31, 2012 | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김래영(단국대학교)"
] | Our Constitutional Court ruled that when a law is fully revised and an additional clause of an old law is not included in a new law, the additional clause is not effective any more. Thus the Supreme Court's ruling that the additional clause at issue is still in force exceptionally despite it is not included in the fully-revised law is unconstitutional in the context.
But the Constitutional Court's ruling ought to be criticized in the followings.
ⅰ) Decision on whether the additional clause at issue is in effective belongs to Constitutional Court's power, because it is not constitutional problem, but legislative one.
ⅱ) The intend of the legislators was the retaining of the additional clause at issue, and the enforcement ordinance of the law had some provisions on the assumption of the effect of the additional clause at issue.
ⅲ) In this case Constitutional Court ruled that the interpretation which the additional clause at issue is till in effective is unconstitutional in the context.
But Constitutional Court reviewed whether the court's judgement is right or wrong actually in this case. It does not meet our judicial review system that separates (general) court from the Constitutional Court.
ⅳ) Denial of the effect of additional clause at issue is is unjust in this case from the viewpoint of the tax-equity. | 법학 | null | kci_detailed_000149.xml | |||
ART001724805 | oai_dc | 법률구조 대상의 확대방안 | A Study for Expanding Legal Aid | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김대홍(서울대학교)"
] | Legal aid guarantees the right of access to justice as a part of social security.
I discuss how to expand legal aid in this paper. To expand legal aid to more cases, I suggest that legal aid should be provided for non-litigation cases, lawsuits against the state, and notarial acts. The court excludes not-litigation cases and Korea Legal Aid Corporation excludes lawsuits against the state from their scope of legal aid without just reason. Little legal aid is provided for notarial acts despite its importance in daily life.
To expand legal aid to more people, I suggest that legal aid should be provided for the middle class and overseas Koreans. Statistics show that even the middle class does not receive enough legal service in Korea. Legal aid for legal service is essential to reduce the justice gap. Legal expense insurances can be considered as an affordable measure for legal aid to the middle class. There are an increasing number of overseas Koreans because of globalization. Legal aid should be provided to them to protect and support their activities. | 법학 | null | kci_detailed_000149.xml | |||
ART001725013 | oai_dc | 고문 공간으로서의 남영동 대공분실과 그 이용자들: 1985년의 김근태 씨 고문 사건을 중심으로 | The NamyoungDong Anti-Communist Branch of the Korean National Security Headquarters as a Torture Center in 1980s: An Overview. | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김두식(경북대학교)"
] | The NamyoungDong Anti-Communist Branch of the Korean National Security Headquarter was a building in central Seoul where the late democratic activist Kim Geun-tae was severely tortured for 22 days in September, 1985 for his acting role against military government. The purpose of this article is to examine who had built this building, how this building had come to be used for torture,and who had put people to torture in this building.
In 1976, the NamyoungDong Branch was designed and constructed by Kim Swoo Geun, a prominent Korean architect, educator and publisher, who designed over 200 projects including ‘Freedom Center(1963)’, ‘Space Group Building(1971-1977)’ and ‘Olympic Main Stadium(1977)’. The 5th floor of this building was designed and used for brutal water and electric shock torture as interrogation methods in 1970s and 80s. Although there had been very few cases that North Korea had set secret agents since 1970, the policemen working in this building were under pressure that they had to arrest spies in order to be promoted. Sometimes these policemen were exposed to violence by their senior officers if they were not actively engaged in torturing people under suspicion.
By investigating history and management of this building, we are able to realize that torture was not just irregular crimes committed by individual policemen but largely embedded works in administrative routines. | 법학 | null | kci_detailed_000149.xml | |||
ART001561114 | oai_dc | 국제법상에 나타난 보편적 인권규정과 노인인권 | The Human Rights of Elderly People from the perspective of Universal Human Rights Principles in International Laws | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김주현(서울대학교); 박경숙(서울대학교); 이상림(재단법인아이오엠이민정책연구원); 최인희(한국여성정책연구원); 손정인(서울대학교)"
] | Unlike the human rights issues involving women, children or the disabled, the universal norm for the human rights of elderly people is not firmly established from the aspect of the international law. The purpose of this study is to specify the human rights of elderly people and to explore a range of potential policies to socially realize those human rights that serve as a base for an independent life in old age and social integration by more narrowly focusing on the unique experience and recognition in old age. To this end, this study materializes the human rights of elderly people by closely analyzing human rights principles emphasized in international and domestic laws and those addressed from the unique experience of Korean people in old age. Further, it classifies the area of the human rights of elderly people by looking through relevant provisions and clauses of international laws or conventions related to the human rights of elderly people in order to present Korea-specific situations. The study mainly deals with income/dwelling, labor, social participation and family caregiving among many human rights areas of elderly people. It reconstructs universally declared principles on human rights by looking into the conformity of those principles with international standards and practices for elderly people. The human rights principles on elderly people can be found in universally declared principles on human rights. And those principles recommend that the human rights of elderly people should be guaranteed in the same conditions as those of other people in the course of application of the rights in a universal way but it is still fragile.
| 법학 | null | kci_detailed_000149.xml | |||
ART001561107 | oai_dc | ‘반 대통령제’ 개헌론 재고(再考): 제도적－행태적 비교연구에 근거한 비판적 헌법정책론 | From Presidentialism to Semi-presidentialism?: Critics from Institutional-behavioral Approaches of Recent Comparative Studies | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"신우철(중앙대학교)"
] | In August 2009, the Parliamentary Advisory Committee of Constitutional Revision proposed adopting the French-style semi-presidential system of government. But the revision proposal is not so persuasive as they maintain, for it does not reflect a number of recent studies about semi-presidentialism. This paper deals with some important research issues of semi-presidentialism, not only in comparative-institutional analyses but also in empirical-behavioral studies. First, I examine different concepts and types of semi-presidentialism. Here, the works of M. Duverger, G. Sartori, M. S. Shugart, and R. Elgie will be reviewed. Second, I examine the merits and demerits, the wins and losses of semi-presidentialism. The statistics of recent positive studies, especially the broad comparative work of S. Moestrup, show that the theoretical advantages of semi-presidentialism are not convincing, with few exceptions in Eastern Europe. Third, I examine institutional and behavioral factors that influence the performance of semi-presidential systems. A number of positive studies reveal the fact that an unstable party system and a powerful presidency tend to cause the failure of a semi-presidential government. After considering the above mentioned factors, I finally make a pessimistic prediction about the effect of the revision proposal: “The vicious combination of a weak party system and a strong presidency in Korean ‘real’ politics may lead to the failure of a new semi-presidential government.” | 법학 | null | kci_detailed_000149.xml | |||
ART001561115 | oai_dc | 민법과 형법간 학제적 연구의 典範: 양천수,「부동산 명의신탁 -민법과 형법의 관점에 중점을 둔 통합과학적 접근-」(영남대학교 출판부, 2010) | An Exemplary Model of Interdisciplinary Study between Civil Law and Criminal Law -Chunsoo Yang, Real Estate Title Trusts- | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"정구태(조선대학교)"
] | 법학 | null | kci_detailed_000149.xml | ||||
ART001561099 | oai_dc | 복지국가와 금융: 연금제도를 중심으로 | Welfare-States and Finance: Focusing on Pension Fund | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"장진호(광주과학기술원)"
] | This study addresses the issues of welfare-states and their relationship with finance mainly focusing on the changing role of pension provisions in their effects on the social and economic system. The welfare-state in its modern sense can be said to have begun as that for the elderly. Welfare-states have developed in different types, reflecting historically different patterns of capitalist systems in societies. Under the current wave of global neoliberalism, the liberal type of market economy has more appealed to many countries than ever. Liberal market economies such as the US and the UK are characterized by the presence of the larger private sector in their pension systems and the deep linkage between pensions and financial markets. The recent privatization and financialization of pensions in many countries have resulted from mainly neoliberal causes based on financial interests, which has made some negative outcomes against workers in terms of their social welfare to which the pension provisions originally was intended to contribute. With pension funds increasingly and globally invested in financial markets, pension money has become so-called “social security capital” that has to work for profit-making even in risky investment. Portfolio-manager capitalism has prevailed in many countries with pension reforms, which is mainly for the interests of financial companies, but against the welfare of common pensioners. The democratic, responsible and prudent management of pension funds should be made to be a key condition for people’s welfare. | 법학 | null | kci_detailed_000149.xml | |||
ART001561102 | oai_dc | 복지 담론의 변천에 대한 입법학적 접근: 사회적 기본권에 대한 이해를 중심으로 | A Legisprudential Approach on the Change of Welfare Discourses | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"장철준(한동대학교)"
] | As the financial crisis was extended and the polarization was deepened, people pay more attention to the social welfare systems. Even the conservative, who have been relatively reluctant to look at them, have changed their mind about the issues on social welfare. However, the fact that we have strongly fixed aspirations on the economic growth in the Korean society asks more persuasive discussions on the welfare issues for the change of welfare concept.
In this article, the writer tries to analyze the discussions on the welfare issues in the National Assembly and to put forward better ways to perform more active welfare policies. Especially, discussions on typical legislations in four different governments after democratization period(late 1980s) are selected and studied. For stronger persuasion, the writer find the clue to overcome the traditional myth of economic growth in terms of the heightened protection of the social rights. The theory of the cost of rights, presented by Sunstein & Holmes, help this project for its changed concept of liberty and social rights.
| 법학 | null | kci_detailed_000149.xml | |||
ART001561108 | oai_dc | 스마트폰의 확대에 따른 통신법상 경쟁정책 문제의 검토 | A Studies On The Competition Policy Of Smartphone in Telecommunications Law | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"홍명수(명지대학교)"
] | A smartphone is a mobile phone that offers more advanced computing ability and connectivity than a contemporary feature phone. While most feature phones are able to run applications based on platforms such as Java ME, a smartphone allows the user to run and preemptively multitask applications that are native to the underlying hardware.
Viewed from the smartphone’s function providing a platform for application developers and using the users it, an operating system performs an important role, specially at the choice of smartphone.
So operating systems and smartphones have a important effect on the competition and structure of telecommunications market. In this context, the exclusive relationship between smartphone maker and telecommunications carrier should be exercised caution from a perspective of telecommunications law and competition law.
| 법학 | null | kci_detailed_000149.xml | |||
ART001561105 | oai_dc | 준법지원인제도의 입법내용과 개선방안 | The Legislation and Reform Measure of Compliance Officer | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"정재곤(중앙대학교)"
] | This article Makes a study on the legislation and reform measure of compliance officer. The company’s system of internal control has the key role in the management of risks that are significant to the fulfillment of its business objectives. a sound system of internal control contributes to safeguarding the shareholders’ investment and the company’s assets.
The internal control system in korea is similar to COSO framework. Generally an internal control is a process to provide resonable assurance regarding the effectiveness and efficiency of operations, the reliability of financial reporting, and compliance with corporate policies and legal rules.
To begin with, study points out as the basic principle that a corporation needs a different system from that of a financial company since they have different intrinsic attributes.
The detailed assertions of the article are as follows.
First, when The Ministry of Justice makes the enforcement ordinance of the commercial law, it is hoped that they will consider the situation of the small and medium listed company.
Second, when The government revises the commercial law in the future, it is hoped that they will consider the amendment that this article presents.
Finally, the internal control system had better be obligated not by a statute but by a more flexible rule. | 법학 | null | kci_detailed_000149.xml | |||
ART001561112 | oai_dc | 의무전환사채에 관한 소고 | Some Thoughts on Mandatory convertible bonds | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"서종희(연세대학교)"
] | Mandatory Convertible is that a type of convertible bond that has a required conversion or redemption feature. Either on or before a contractual conversion date, the holder must convert the mandatory convertible into the underlying common stock. Mandatory convertibles have become popular in recent times. Despite the large size of international and especially Korea in 2008 mandatory convertible markets, very little research on the pricing of mandatory convertibles has been undertaken. There are also a few articles dealing with the rationale of and the stock market reactions to issuing mandatory convertibles. These securities provide investors with higher yields to compensate holders for the mandatory conversion structure. That is to say, mandatory convertibles are equity-linked hybrid securities and can be thought of as yield enhanced equity. Mandatory convertibles pay higher dividends than common stock for a number of years and then mandatorily convert to common stock on a pre-specified date.
These securities are the most equity-like of all convertible securities and, unlike normal convertibles, they provide little downside protection because mandatory convertibles usually have no fixed terminal value. Instead, the security will mandatorily convert into a variable number of stocks at maturity. These are often used when a traditional equity issuance would otherwise place severe market pressure on the underlying stock.
So, mandatory convertibles allow highly leveraged(or temporarily troubled) companies to restructure their balance sheet by helping to control for the “asymmetric information” problem. Besides, because mandatory convertibles are akin to stock or a juristic act subject to a condition precedent rather than debt, they are not very sensitive to changes in interest rates. In future, we must study on the pricing of mandatory convertibles and the rationale of and the stock market reactions to issuing mandatory convertibles. Finally, I think that study, research and urgent legislation at mandatory convertibles is needed. | 법학 | null | kci_detailed_000149.xml | |||
ART001561094 | oai_dc | 사회적 인권으로서의 복지: 복지공간에 대한 새로운 상상 | Welfare as Social Human Rights: Imagining Welfare Space | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"안숙영(부산대학교)"
] | The Republic of Korea is a welfare space in which the constitution clarifies that all citizens shall be entitled to a life worthy of human beings and the state shall have the duty to facilitate social security and welfare(Article 34). Though, political leaders of our time view welfare not from an angle of citizens’ rights but from the angle of charity from above.
In this situation this article puts an emphasis on welfare as human rights, and especially focuses on social human rights. Welfare is mainly treated as citizens’ rights within the Westphalian Frame(Nancy Fraser) in which the nation-state plays a major role for promoting welfare. The extent of welfare benefits is often limited due to the existence of property rights and the obligation to work. But in a today’s globalizing world, in an emerging Post-Westphalian Frame, we need to reconceptualize welfare through the imagination of welfare space. Welfare has to reach beyond the limitations which are set by the framework of the nation-state. Social human rights expand the scope of welfare and entitle humans as recipients of welfare benefits based on their status as human beings regardless of nationality, class, gender, ethnicy and so on.
When sketching the welfare space for the Korean future, we have to be aware of the limitations which the capitalist system sets. The imbalance between expenditures on social welfare and military expenditures has to be overcome. The bureaucratic character of the welfare state has to be reflected critically and democratization of social policy through citizens’ participation to be realized. | 법학 | null | kci_detailed_000149.xml | |||
ART001561104 | oai_dc | 이른바 ‘법학전문대학원 학사관리 강화방안’의 문제점과 그 개선방안 | Objection to the New Grading System in Law Schools | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"송기춘(전북대학교)"
] | In March 2011, most law schools in Korea adopted a new grading system, designed to improve the learning ability and to enhance the management of law schools’ academic affairs. The main characteristics of the new system are as follows: a 5-scale grading system(ranging from A, B, C, D to F), strict relative evaluation system including compulsory D for 4% students and strict academic difficulty and disqualification rules. It is mandatory for the professor who lectures in a class with 10 or more students to evaluate them in this relative evaluation system: A for 25%, B for 50%, C for 21% and D or F for 4% students. If a student receives GPA under 2.0(C), he or she will be in academic difficulty. If he or she receives GPA under 2.0(C) in two consecutive semesters, he or she is encouraged to retake the same classes next year. He or she will be disqualified if he or she receives GPA under 2.0(C) in any three consecutive semesters, or he or she is encouraged to retake the same classes twice.
Though this grading system was designed to improve the learning ability and to enhance the management of law schools’ academic affairs, it does not help to fulfill these purposes. Instead, it obstructs to improve the learning ability and contradicts to the purposes of law schools.
First of all, the purpose of the law schools is to educate the students to become lawyers, not to classify the students for disqualification or to criticize the students in academic difficulties. Actually, the law schools shall support the students in academic difficulties to achieve the goal. However, with the new grading system, over 4% students in a class with 10 or more students shall receive a grade of D or F regardless of his or her academic achievements. It is mandatory. It could not be in harmony with the purpose of the schools.
Secondly, this system brings undue mental stress upon the law school students. Rather, it injures the efforts of the students to improve the learning abilities.
Third, it drives away the students to the class with less academic burden or to the class where they can take advantage in grading. They don’t take the classes in the point of the importance of the subject or for their future plans. It ruins the diversity of the classes in law schools. It will be the causes for the law schools to fail to accomplish their purposes.
Fourth, it was not adopted voluntarily but was forced in practice by the Association of Law Schools and the Department of Education. It hurts the autonomy of the faculty of law schools.
Therefore, this new grading system should be repealed as soon as possible, and the autonomy of the law schools’ grading system should be restored. | 법학 | null | kci_detailed_000149.xml | |||
ART001616948 | oai_dc | 감치제도의 변용 혹은 오용: 질서벌로서의 신체의 자유 제한 | Alteration or Misuse of Confinement System: redemption of the body as Ordnungsstrafe | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"이근우(가천대학교)"
] | Confinement has been in our legal system for quite some time. Although this system had not been in application for long since the birth of it, recently this system has been actively applied, since this system has been introduced in Court Organization Act as an exceptional system.
Whole legal systems must comply with the constitutional spirit (such as Constituion of the Republic Korea, Article 37). In particular, the scheme involves the redemption of the body must balance the proportion. In this Act, the confinement system in terms of appearance has become the main sanction.
Recent trends in the Criminal Procedure Code amendment would reduce the redemption of the body. However, detention system with the redemption of the body is developed especially in Civil Procedure law.
The court summon witnesses to court is apprehension. I think that the intention of developing the confinement system is that the court wants easier way cause apprehension is not easy in reality. But I think detention system should be ‘ultima ratio’ when other systems(e.g. departure of prohibition, witness who didn’t attend the court put on the computer network as a most wanted and so on) do not work properly and only in this case this system can be agreed. However it’s promoted widely its own territory in Act on the Regulation of Violations of Public Order. It’s criticized that this is because lawmakers and law-executors want a system that is too easy to apply. | 법학 | null | kci_detailed_000149.xml | |||
ART001616940 | oai_dc | 법의 새로운 기초로서 동물권 담론 | Animal Rights Discourse As a New Basis of Law | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"민윤영(단국대학교)"
] | This article deals with animal rights discourse and Sigmund Freud’s theory of primordial horde in relation to the interdisciplinary study of law, mythology and animal studies. Animals became invisible from human life following modernization and rationalization. However, since the 1970s, animals have come back into the philosophical discourse, evoking changes in law. The rapid growth of animal rights discourse is one of the impressive examples of those changes. There is a possibility that this phenomenon might be interpreted as the restoration of mythological thinking, which rendered animals as intrinsically familiar beings to humans, since granting rights to animals inevitably makes the status of animals closer to that of humans. If we can say that the essence of animal rights discourse has deep connections to mythological thinking, the law which develops animal rights cannot help but reflect on its rationality-centered traditions. Because, for human reason to be established, mythological thinking was repressed and accused of being pre-modern. In here, animal rights discourse might contribute to a new proposal for the basis of law.
This article analyzes the treatment of animals as ‘thing’ metaphors in law, and tries to address psychoanalytical reasons why such a metaphor was formed and maintained and what kinds of problems it could bring. Furthermore, the author also discusses Freud’s case studies, zoologists’ intersubjective experiences with animals, and Gilles Deleuze and Félix Guattari’s theory of ‘animal-becoming’, in regards to grounding new concepts of legal personality. These theories contribute to the establishment of the concept of relational personhood in diverse dimensions-both unconscious and conscious-and to the expansion the status of legal personhood to animals. Lastly, the article briefly addresses the meaning of Freud’s theory of primal horde, which Lacan called modern myth, in relation to jurisprudence. | 법학 | null | kci_detailed_000149.xml | |||
ART001616929 | oai_dc | 위험에 대한 법체계의 반응 | ‘Risiko’ Beobachtung der zweiten Ordnung | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"고봉진(제주대학교)"
] | Heute scheint der Risikobegriff seine gesellschaftliche Karriere anzutreten. In ihm kristallisieren sich die Grunderfahrungen und Probleme einer hochindustrialisierten und in vielen Bereichen verwissenschaftlichen Gesellschaft. Im Risiko sehen sich die Gefahren, die sich zur allumfassenden Katastrophe ausweiten können. Die anderen assoziieren mit dem Begriff Risiko die Chance. Die Dritten legen den Akzent auf Sicherheit und sehen im Risiko eine Herausforderung, Sicherheit als machbar und herstellbar zu erweisen. Risiko bedeutet die Relation von Chancen und Verlusten in bezug auf eine Entscheidung, mit deren Hilfe man eine unbekannte Zukunft berechenbar machen will(Risiko als Zukunft in der Gegenwart). (zit. Gotthard Bechmann, “Risiko als Schlüsselkategorie der Gesellschaftstheorie”, in: kritische Vierteljahreschrift für Gesetzgebung, 1991, S. 213 ff.)Die moderne Gesellschaft entwickelt sich von einer primär schichtenmässigen Differenzierung zu einer Differenzierung in funktionale Teilsysteme. Der Übergang zu einer primär funktionalen Differenzierung des Gesellschaft erfordert neuartige strukturelle Kopplungen im Verhältnis der Funktionssysteme zueinander. Wenn man sich vorstellt, dass nichts in der Welt der direkten Erkenntnis zugänglich, sondern alles nur aus Sicht eines Beobachters erfassbar ist, hat das enorme Konsequenzen.
Die Beobachtung, dass das Risiko so und so beschaffen ist, wird abgelöst von der Aussage, dass es einen Beobachter gibt und das Risiko so und so beschaffen ist. Alle Beschreibungen der Realitaet beruhen auf Unterscheidungen durch Beobachter, sind also Konstruktionen. Also ‘Risiko’ Beobachtungen und ihre Ergebnisse sind nur Konstruktionen aus systemrelativer Sicht(Beobachtung der zwiten Ordnung). Das impliziert die ständige Korrigierbarkeit und Kritisierbarkeit aller Weltbeschreibungen. (zit. Margot Berghaus, Luhmann leicht gemacht)Zum Schluss handelt es sich darum, dass ‘Risiko als Zukunft in der Gegenwart’ für das Verständnis der Rolle des Rechts in der modernen Gesellschaft welche Konsequenzen hat. Der zweite Teil betrifft die Zurechnung des Gefahrenquelle verwaltenden Person als Rollenträger (Person). | 법학 | null | kci_detailed_000149.xml | |||
ART001616887 | oai_dc | 2012년 (중대) 선거와 대한민국 헌법정치의 구조적 변화의 모색: 절차적 민주주의의 확립을 위하여 | (Critical) Elections in 2012 and Exploring Structural Changes of Constitutional Politics in Korea:Toward Establishing Proceduralist View of Democracy | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"노동일(경희대학교)"
] | Many scholars and political observers expect that two elections scheduled in 2012, general election in April and presidential election in December, will be so called critical elections in Korean (political) history. The rationale behind the expectation is that they believe the progressive parties will succeed in taking over political powers from the incumbent conservative political party through the elections in 2012. Generally speaking, a critical election is the one in which there are sharp changes in issues, party leaders, the regional and demographic bases of power of the parties, and structure or rules of the political system, resulting in a new political power structure.
From that point of view, they could be dubbed as critical elections in terms of social and political changes they might give rise to the Korean society as a whole. However, I would like to argue that they will not be critical elections unless those coming elections will produce any positive changes in political patterns or behaviors of the political parties and politicians. I assume that there will be no dramatic changes of the behavioral patterns in Korean politics and therefore they shall not be called critical elections.
In order to substantiate my assumption, I reviewed the whole records of behaviors of the political parties and politicians and found out that there has never been a year in which no physical altercation and/or brawl occurred since the adoption of the democratic constitution in 1987. In 1988, right after the ‘87 Constitution’, the 12th Term of National Assembly ended in violence and altercation among the politicians resulting from the differences surrounding the election bills. The physical violences and clashes among the political parties have become even more severe throughout the years and provisional session in National Assembly in 2010 ended up with great turmoils witnessing the same pictures as in 1988.
I view these consequences as a lack of basic understanding and training of procedural democracy in Korean politics. Therefore, I would like to suggest several things to make Korean political cultures better. First of all, I would like to propose that the politicians should be free from “ethical overload” and adopt proceduralist view of democracy. This suggestion is based on Habermas’ view of democracy, rather than liberal and republican views of democracy. Second suggestion is that the politicians should realize that ‘Politics by Other Means’, resorting to prosecutors and judicial branch, for example, will result in the weakening of representative democracy. By the same token, I would like to urge the Constitutional Court to change its attitude toward adjudication on competence dispute between the Members and the Speaker of National Assembly. The Court should avoid to adjudicate the dispute or resolve it from representation-reinforcing view, once it decides to take the case. Next, in my opinion, we should focus on detailed procedures rather than focusing on constitutional revisions, as has been proposed by many scholars and commentators. Another suggestion is that the members of National Assembly should be banned to hold concurrently ministerial positions at the same time. The last, but not the least, one is that reforms should be made in electoral systems and means of nominating candidates.
As long as there is a prospect that the procedural democracy described above can be established by 2012 elections, those elections will be critical elections. Otherwise, no matter how important the 2012 elections are, no-compromise politics in Korea will remain the same as usual, and the elections cannot be called as critical ones. | 법학 | null | kci_detailed_000149.xml | |||
ART001616918 | oai_dc | 한말 외국인 대상 민사재판의 구조와 실태: 한성(부)재판소의 민사판결을 중심으로 | A Study on Structure and Operation of Foreigner-Related Civil Trial in the Period of the Great Imperial Korea: With Special Reference to Trials of Hanseong Court | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"이영록(조선대학교)"
] | This article aims at revealing the structure and actual operation of foreigner-related civil trial in the period of the Great Imperial Korea. It focuses on judgements of Hanseong Court and, if necessary, Godeung Court(or Peongriwon) as its higher court. The facts here revealed are as follows.
1. There was a case in which, even though a foreigner was in the position of the defendant, Korean court exercised jurisdiction over him. It was possible, perhaps because he was a co-defendant with a Korean. Even if so, it was a exception to the principle of defendant-ism upon the consular jurisdiction in that period, which meant that the country should have jurisdiction when its nationals were defendants in a case between different nationals.
2. There was also found a case in which Korean government exercised jurisdiction over a foreigner in the position of the defendant whose country was out of treaty relation with Korea. It has been known so far that even nationals of the country in non-treaty relation were protected by the consular jurisdiction of the third party nation. The case was related with a Chinese, taking place in June of 1896 after the treaty between China and Korea had expired, and before the new treaty was concluded. At least until then, chinese people in Korea were not protected by English consular jurisdiction. It means that when the chinese started to be protected by English consular jurisdiction should be corrected.
3. Political and diplomatic considerations had much influences upon foreigner- related trials. It was reflected in the numbers of cases, the rate of foreigners’ winning a case, etc. | 법학 | null | kci_detailed_000149.xml | |||
ART001616906 | oai_dc | 헌법재판소의 사형제 결정과 사회과학적 논증: 사형의 억제효과를 중심으로 | Death Penalty Cases and Social Scientific Evidence: Deterrent Effect of Capital Punishment in Korea | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김도현(동국대학교)"
] | After the first decision on capital punishment in 1996, the death penalty system of Korea was upheld by the Constitutional Court once again in 2010 on the ground that it does not violate Article 37 Section 2 and Article 10 of the Constitution. The reasoning of the Constitutional Court in these cases was chiefly of legal science, but rarely of social science. From the perspective of social scientists there could be found, if any, arguments which fall short of satisfaction, especially on the issue about the deterrent effect of capital punishment.
The author in this paper tried to supplement the reasoning of the Court with a new social scientific evidence on the deterrent effect of death penalty in Korea. For this purpose data on murder rate, execution rate, prosecution rate, GDP growth rate, urbanization rate, and Gini coefficient were collected and analysed for the time span of 1965-2009. The results of these analyses were: firstly, there could not be found any meaningful effect of capital punishment on murder rate; secondly, the most effective variable seems to be Gini coefficient, indicating that the inequality of income distribution among citizens is positively related to the occurrence of murder. The former of these two conclusions was also supported by a recent empirical study on the effect of death penalty utilizing statistical time-series analysis.
Nobody can say for certain whether the conclusion of the Court could be changed if the social science arguments of this kind were submitted during the hearing of death penalty cases. It is beyond doubt, however, that social scientific evidences should be considered more actively by the Constitutional Court of Korea in the future. | 법학 | null | kci_detailed_000149.xml | |||
ART001616912 | oai_dc | 로펌의 성장과 변호사윤리의 변화: 개인윤리에서 조직윤리로, 공익활동에서 사회적 책임으로 | The Growth of Law Firms in Korea and the Change of Lawyer’s Ethics: from individual ethics to organizational ethics and from pro bono activities to social responsibility | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"홍성수(숙명여자대학교)"
] | In Korea, as the number of lawyers has increased and their influence has grown, professional ethics of lawyers has turned into an important social issue. This concern has been mainly dedicated to the responsibility of individual lawyers; in particular to their unacceptable behavior such as the privileges of lawyers’ former posts as judges or prosecutors and overcharged attorney fees. In contrast, relatively little concern was paid to responsibility of law firms themselves rather than individual practitioners. However, law firms as legal subjects have much influence on many social affairs so that their responsibility can be effectively addressed only if they are seen as aggregated legal subjects themselves.
In this respect, this paper attempts to address ethics that should be applied to law firms. First of all, it deals with the history of lawyer’s ethics in the US and Korea in relation to the growth of law firms. This leads to the change of lawyer’s ethics from individual ethics to organizational ethics and from pro bono activities to social responsibility. As a tentative conclusion, the last section is dedicated to corporate social responsibility for law firms in that this contributes to clarifying what should be required for law firms’ ethics. | 법학 | null | kci_detailed_000149.xml | |||
ART001616925 | oai_dc | ‘홍성우 변호사 인권변론 기록’의 가치와 과제: 1977년 리영희 교수 필화 사건을 중심으로 | The Value of ‘Hong Sungwoo Archive’ in Human Rights and Criminal Law Research and Future Tasks of Peer Researchers | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김두식(경북대학교)"
] | ‘Hong Sungwoo Archive’ is a record that Mr. Sungwoo Hong collected when he was working as a defense attorney for various human rights litigations from 1970s to 1980s. This archive was known to the world by a book entitled “An Era of Human Rights Defense” written by Professor In-Sub Hahn after he interviewed Mr. Hong. The archive, composed of 133 cases and 1207 records in over 46000 pages, presents tremendous amount of materials. The purpose of this article is to investigate the value of this material, focusing on an Anti-Communism Law case against Professor Young-hee Lee, a liberal thinker and journalism scholar, who wrote the books <An Discourse with 8 Hundred-Million People> and <Idol and Reason> in 1977. He served more than 2 years in jail on account of praising the Chinese Communist Party in these books about China under the Park’s military government. The records of Lee’s case included in the ‘Hong Sungwoo Archive’ remind us of the history that we should not forget, tell us who would be the perpetrators, and thus show the evolution of the Criminal Law and Procedure of Korea. The author suggests that future researchers draw attention on this archive, search for a way to open this archive to the public without violation of privacy, and gather similar records from across the country to establish national archive. | 법학 | null | kci_detailed_000149.xml | |||
ART001616900 | oai_dc | 네트워크 정치와 헌법정치: SNS 선거규제 입법평가 모델의 시론적 구성 | Network Politics and Constitutional Politics: Legislative Evaluation Model for Electoral Regulations on SNS | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"심우민(국회입법조사처)"
] | As using of SNS with purpose for election has increased recently, argument on restrictions to regulate SNS in election has become the main topic of discussion. The most trend of all on this issue tends to focus on political contention rather than concrete and definite argument. A way of reconstruction of this repeated pattern can be made through establishing Legislative Evaluation Model for electoral regulations which applies to SNS. The preliminary idea of this model will be provided in this article.
The importance of SNS as communicative tool is able to be revealed by Bruce Ackermann’s theories on “constitutional politics” and “normal politics”. Constitutional politics is an exceptional circumstance in which new order is established. As in founding a country or revolution, all-round issues on governing would be under debate in constitutional politics. On the other hand, normal politics is politics based on an entrenched existing constitutional order. According to this division, During the period of constitutional politics, some values are excluded to integrate differences Therefore, the gulf between constitutional politics and normal politics should be reduced. Roberto Unger is one of scholars who insist reducing the gap. In this respect SNS can be regarded as phenomenalized technique to minimize the gap.
It is said, however, that election law in Korea hinders the utility of SNS in the perspective above. Legislative Evaluation Model will investigate whether the law make the SNS shrunk in reality. Because there is no well formulated system for legislative evaluation in Korea, this paper tries to construct a legislation evaluation model for regulatory provisions related to SNS in the context of election.
To heighten an awareness on limitation of Positivism should be premised in methodological aspect. Along with this, an introduction of constitutional and normative perspective will enlighten the discussion. Furthermore, features of SNS which consist of networks should be reflected in the model. In other words, the legislative evaluation model should include the regulative characteristics of network.
In the latter half, a model to assess regulations related to SNS with electoral issues will be suggested. The model is composed of subject-setting for legislative evaluation, confirmation on constitutional and normal aspect, framing hypothesis, hypothesis evaluation, and suggestion for legislative argumentation. This flow of evaluation could instigate arguments on revision of the election law. Detailed example of results in accordance with legislative evaluation model in this article will be presented in other follow-up studies. | 법학 | null | kci_detailed_000149.xml | |||
ART001616934 | oai_dc | 신경과학과 법을 둘러싼 논쟁 | Debates on Neuroscience and the Law | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"박은정(서울대학교); 장하원(서울대학교)"
] | Recently, enormous progress in neuroscience has been made to enhance our understanding of the human brain and its functions, but this progress also provokes various controversies and debates concerning the implications of neuroscience on legal and ethical issues. Scholars with different disciplinary backgrounds such as neuroscience, neuroethics, philosophy, and law have participated in such controversies and debates. In order for legal scholars to find legal implications from them, it is necessary not only to embrace novel neuroscientific information but to understand various points in such disputes more analytically. For this purpose, this paper classifies complex issues emerging from the interactions between neuroscience and law into three topics: 1) the problematization of the concept of free will as a prerequisite for legal responsibility, 2) the disagreement of the legal efficacy of PET or fMRI brain images in court, and 3) the desirable relationship between neuroscience and the law in moral, legal and social senses. By analyzing and discussing these three important topics, this study will elucidate various ways in which new brain science interacts with law, and help to develop an appropriate criteria for the adoption neuroscience into the legal system of our society. | 법학 | null | kci_detailed_000149.xml | |||
ART001616922 | oai_dc | 식민지 조선의 법조 양성: 법조 자격 및 시험제도를 중심으로 | The Legal Profession Qualification System in Korea under Japanese Colonial Rule | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김창록(경북대학교)"
] | This paper examines the legal profession qualification system in Korea under Japanese colonial rule, which constitutes an important part of the history of the Korean legal profession qualification system undergoing a great change with the introduction of the law school system in 2009.
After Meiji Restoration in 1868, the legal profession qualification system in imperial Japan was created under the initiative of ‘the state’. And it converged into the examination and training system strictly controled by ‘the state’. It converged into the ‘national legal profession examination’ in 1923, which blocked the intervention from the attorneys and universities, while in the early stage the attorney qualification system had had a relative autonomy, and the legal profession qualification had been linked to the education at the universities through ‘the exception for the graduates of imperial universities’.
The legal profession qualification system in Korea under Japanese colonial rule was on the one hand connected to that of imperial Japan, and on the other hand involved the special institutions which were not introduced in imperial Japan. It shared the characteristic of ‘the initiative and control of the state’ with that of imperial Japan, and the characteristic was strengthened by the special institutions in colonial Korea. Adjusting themselves to the ‘given reality’, the brilliant minds in colonial Korea turned into ‘extremely few elites’, through the ‘extremely difficult examination’.
These characteristics in colonial Korea show the original form of the characteristics of the legal profession qualification system in Korea after the ‘liberation’ in 1945, i.e. ‘the initiative and control of the state’ and ‘the myth of the examination’. | 법학 | null | kci_detailed_000149.xml | |||
ART001616894 | oai_dc | 한국 정당정치의 변화 가능성과 시민정치운동: 10.26 서울시장 보궐선거 과정과 결과를 중심으로 | The possibility of change of party politics and citizen politics movements in Korea: Focusing on the process and outcomes of Seoul Mayoral by-election on 26 October 2011 | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"홍일표(한겨레경제연구소)"
] | This paper aims to examine thoroughly the recent discussion on ‘the cirisis of political parties’ and ‘the rise of citizen politics’ in Korea. I approached to this problem with the historical perspective. During this two decades, Korean civil movements had kept trying to make impacts on Korean politics. They always had made much of ‘the political neutrality’ because it was regarded as a very effective strategy to sustain their influence on the politics.
But under the MB administration, Korean civil moment groups had no choice but to change their strategy and goal on the politics. Many activists and citizens got to recognize that the strategy of political neutrality was not effective any more. Especially after experiencing the candle demonstration in 2008, some of activists who had participated in civil movement organizations, started to advocate the necessity and possibility of the citizen politics in Korea. Scholars and activists who make much of the citizen politics, explain that the citizen politics can press and change the party politics with the support from the ordinary citizens. Seoul mayoral by-election showed that the citizen politics in Korea is not just an ‘anticipation’ but already a ‘reality.’ Attorney Park won-soon won the big election on 26 October 2011 as an independent candidate and became a Seoul mayor. Then does it mean the victory of citizen politics? This paper concludes that the current status of the citizen politics in Korea is still ambiguous. The content, form, subject and vision of citizen politics should be innovated much more. | 법학 | null | kci_detailed_000149.xml | |||
ART001505554 | oai_dc | 시민적 덕성과 통치자의 덕성-이명박 정부 전반기의 한국 정치에 대한 평가- | Civic Virtue and the Ruler’s Virtue -An Evaluation on the Korean Politics under the President Lee Myung-Bak’s Government during 2008-2010- | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"이국운(한동대학교)"
] | This article tries to evaluate on the Korean politics under the President Lee Myung-Bak’s government during 2008-2010. In comparison with the legalistic approaches of other scholars in the field of Korean constitutional jurisprudence, the author develops a more political and dynamic understanding upon Liberal Democracy under the catch phrase of the normalization paradigm, which is indispensable for the analysis and evaluation of the constitutional politics in the Republic of Korea. The author summarizes the history of the Korean constitutional politics since 1948 as an accumulation of the legacy of the regime of 1952 as well as an repeated attempts to overcome and replace that regime. He thinks that the regime of 1952 has not been overcome and replaced yet in spite of many political changes after the last constitutional revision in 1987. In this context, he regards that the President Lee Myung-Bak’s government shares very similar constitutional mission with its predecessors such as the President Kim Dae-Jung and Roh Moo-Hyun’s governments to overcome and replace the regime of 1952, even if it started from the support of more conservative wingers in Korean constitutional politics. However, the author evaluates that the President Lee Myung-Bak’s government was not so much successful in proving that its goal was also to overcome and replace the regime of 1952 to the Korean public at least in the constitutional politics during 2008-2010. This article finishes with some theoretical speculation about the importance of civic virtue and the ruler’ virtue in constitutional politics, because it is very clear that to make an sound relationship between virtue and vice will be the most crucial matter in Korean constitutional politics in near future. | 법학 | null | kci_detailed_000149.xml | |||
ART001505613 | oai_dc | 욕망과 법 논리 | Desire and Legal Logic | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"엄순영(경상대학교)"
] | The contents of the major premise in legal logic base on one’s values connected with one’s desires. At once the desire is an important factor of an act. As an act shapes the logic of judgement, it connects with the desires. Therefore it is to study desires that we need in Jurisprudence. So this paper studies the concept of desire in jurisprudence, and then how a desire can connect with legal logic.
In this essay, the desire includes the concepts of intentions, wills and wants in jurisprudence. Then the desire signifies wanting something. So it is suggested to separate the desire from its objects and its degrees. The something has a bracket and we can put everything in it. If we put reason in it, the desire shall be the Desire for Reason. In this way the desire is not opposed to a reason but comprehends it. Generally we say that the decision realizes rights. But in this view of desire we can say again that the decision realizes the desires recognized as rights. The desires arrange the index and contents of rights.
Through this view it is proposed that our desire for legal logic makes itself important also. In addition to this, our desires act in linking legal logic to reality. This our desire lets legal logic just. Therefore legal argument’s legitimacy about its contents has relation deeply with what and to some degree we want. | 법학 | null | kci_detailed_000149.xml | |||
ART001505672 | oai_dc | 검찰의 수사권 및 공소권 남용 연구 -한명숙 전총리 뇌물 수수사건을 중심으로- | The Study of the abuse of the prosecutor’s investigations and prosecution power | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김인회(인하대학교)"
] | The ex prime minister Han Myeong-sook trial for charges of bribery showed the typical example for the abuse of the prosecutor’s investigations power, prosecution power, the procedure power on the court. This study tried to overcome the abstract, traditional, and normative study on the abuse of the prosecutor’s investigations power, prosecution power, the procedure power on the court. Concrete and practical problems, tried to pull out vividly.
In this study, it is confirmed that the prosecutors have abused the investigations power. The abuses of the investigations power are consist of the leak of the charge by the investigators, targeting investigation, coercion investigation, the plea bargaining and the omission of the investigation document. Further, the prosecutors abused the prosecution power by accusing even though the investigation was insufficient.
This study noticed that this trial observed the important principles such as centered proceedings, public proceedings, direct proceedings and oral proceedings. Especially this trial showed the model form of the principle that only the material and statement which were presented on the court can be the base of the judgement.
We confirmed that during the proceedings the prosecutors discovered the circumstance evidences which did not have any direct connection with the charge, that made the accused’s privacy public. That is the abuse of the prosecutors’ procedure power on the court.
In this study, the specific and practical guidance for prosecutor’s investigations power, prosecution power and the procedure power is expected. | 법학 | null | kci_detailed_000149.xml | |||
ART001505502 | oai_dc | 헌법재판소의 전략적 헌법담론 -헌법재판소 2009.09.24. 2008헌가25 결정과 2009.10.29. 2009헌라8 결정에서의 헌법적 논증에 대한 비판- | The Strategic Constitutional Discourse of the Constitutional Court of Korea -A Critical Study of 2008Hun-Ka25 and 2009Hun-Ra8- | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"박종현(국민대학교)"
] | The system of constitutional adjudication and constitutional policy-making has been globalized to supplement majority rule policy-making which had caused a legislative failure or executive failure. In playing a policy-making role through constitutional adjudication, the Constitutional Court of Korea takes a strategic approach to reflect its decision in other governmental branches' policy-making. This approach can be made by forming a strategic constitutional discourse in which political environment around the Court might be considered. We can choose the Capital Relocation Case of 2004 as one of the most remarkable examples which affirmatively use the strategic constitutional discourse.
Beyond this case, the Court has consistently utilized the strategic constitutional discourse, even under the current Lee Myung-Bak government. The decisions of the Courts regarding the Assembly and Demonstration Act and the Media Act cast a doubt that the complicated strategic constitutional discourse was sophisticatedly used to consider political situation in deciding cases. In this situation, we should read the decisions of the Court in the context of politics beyond constitutional doctrines.
Specially, this situation makes a huge problem that the use of the strategic constitutional discourse just might uphold all activities of the current government which holds absolute political majority in the political sphere. However, the system of constitutional adjudication should acts as a protector of fundamental minority rights against majority tyranny. In other words, the constitutional policy-making is arguably legitimate when it serves to protect the interests of discrete and insular minorities. Therefore, we need a critical study on the utilization of the strategic constitutional discourse by the Constitutional Court. | 법학 | null | kci_detailed_000149.xml | |||
ART001505592 | oai_dc | 법학전문대학원 실습과정의 효율적 실시를 위한 연구 -미국 Law School의 실무교육과 비교를 중심으로- | The Study on the design and efficient management of the Externship Programs in Korean Law Schools | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"오승한(아주대학교)"
] | Recently, Korean Law Schools set sail to navigate. The new Korean Law School System adopts the new curriculum of practice courses; such as legal writing, legal research, moot court, clinical programs including externships. Korean Law School System may consider deficiencies in the classic curriculum including civil law, criminal law, and constitutional law.
The new practice classes like the externship programs have been supposed to increase practice skills, professionalism, and institutional critique. In reality, most of Korean law schools have been depending on the work places like law firms, courts, and government agencies for designing the field placement programs. On the other hand, regarding the in-house clinics, an original goal of clinical programs, which helps students to ‘learn to learn from experience’, has been disregarded because of institutional matters, inhibiting students’ law practice in Korea. Actually, ‘the in-house live-client clinics’ requires the innovation of the current court rules for lawyering processes, careful management of cases, therefore much resources to perform. Because of the reason above mentioned, the externship programs (field placement programs) can be the most useful substitution for Legal Clinic Programs. | 법학 | null | kci_detailed_000149.xml | |||
ART001505634 | oai_dc | ‘불간섭으로서의 자유’와 ‘비예속상태로서의 자유’ -한국사회의 자유담론과 관련해서- | Freedom as Non-interference and Freedom as Non-domination in Korean Public Discourse | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김도균(서울대학교)"
] | This paper aims to compare two conceptions of freedom, i.e. freedom as non-interference and freedom as non-domination, which represent respectively liberalism and republicanism, and to show relative advantages of the latter. Especially, I take up P. Pettit’s theory of freedom and try to combine it with G. MacCallum’s formulation, according to which freedom is to be understood as a triadic relation. Pettit proposes a conception of freedom as non-domination, which accommodates Berlin’s insightful distinction between negative and positive liberty, but overcomes shortcomings of Berlin’s theory. By focusing attention on freedom-impediments, I develop two arguments. First, critically examining conceptions of freedom as non-interference in light of qualitative features of freedom, I claim that the non-interference conception of freedom pays little attention to negative external constraints of freedom which are of great significance for the sociopolitical dimension of freedom. Second, analyzing some decisions of the Korean Constitutional Court, I argue that freedom as non-domination can help the Court form a reasonable conception of freedom which shows a principled consistency and integrity. | 법학 | null | kci_detailed_000149.xml | |||
ART001505655 | oai_dc | 장애인의 권리에 관한 법사회학적 소고 | Study on the Rights of Persons with Disabilities | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"이은영(한국외국어대학교)"
] | Persons with disabilities should no longer be treated with contempt in their families and societies. Their dignity as human beings must be respected, and they deserve national, social and family care to enjoy human rights like non-disabled persons do. This paper focuses on the rights that need to be emphasized as rights of persons with disabilities, and on the measures that should be taken for persons with disabilities to realistically enjoy those rights.
First of all, Korean society must fundamentally change its attitude towards disability. Korean society should break away from its current negative behavior of dismissing disabled persons as inferior to non-disabled people. In addition, issues about disability should not be addressed as individual problem but as social matter. Disabled persons’ quality of life depends upon social environment and national economy as well as on social interactions between members of community. Laws and policies regarding disability must be established based on the fact that all persons – with or without disabilities – are equal members of society. Disabled individuals will freely enjoy their rights as human beings just as their non-disabled counterparts only if concepts of nondiscrimination against disabled individuals and respect for ideas of disabled individuals are reflected in the fundamentals of the society. Welfare policies for disabled persons must aim to care and treat them without invading their privacy, family life and independent living. Disabled individuals deserve to be recognized for their unique character, and must not be forced into institutions, locked in the house, or isolated from any sector of social life, like education, culture or politics. This paper presents five categories of rights of disabled individuals. First, the right to be treated equally; second, right to not be exploited, violated or abused; third, right to health, welfare, and labor; fourth, right to mobility and access; and fifth, right of suffrage, to education and to cultural life. One should not ignore the fact that it is very difficult for persons with disabilities to fully exercise the rights granted by the constitution and freely enjoyed by non-disabled individuals. No one may deprive disabled individuals of their rights or disregard them, and the rights of persons with disabilities must be actively protected by the government and public alike. | 법학 | null | kci_detailed_000149.xml | |||
ART001505580 | oai_dc | 절반의 소외-형사공판사건 변호인 선임률의 현황과 대책- | Tears of The Half: Trends of Laywer Representation in Criminal Trial Proceedings | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김도현(동국대학교)"
] | According to the Constitution of Korea, the accused is entitled to receive the assistance of counsel for his/her defense in the course of trial proceedings as well as upon arrest or detention. Despite the recent and rapid increase of the number of lawyers, however, the rate of lawyer representation in criminal trial cases was 49% in 2009, and had been at almost the same level for about thirty years since the 1980s. The only salient change was the recent and rapid increase of the rate of courtassigned counsels, which has taken the place of shrinking rate of private attorneys. In other words, half of the accused are still taking up pro se defense in criminal courts. This rate has been proved to be much higher than that of United States or Japan.
The statutory rules about compulsory representation in Korean Criminal Procedure Act seem to be one of the main sources of this stagnation of the lawyer representation rate. Only for those charged with an offense punishable by death penalty, life imprisonment, or imprisonment for a minimum of three years, a defense counsel is assigned by the court ex officio, as long as no defense counsel has been appointed by the accused. Conclusively, the author suggested to lower the barrier of compulsory representation down to those punishable by imprisonment for a maximum of three years. Also suggested is the introduction of public defender system which is widespread in United States, especially those systems maintained by local governments. | 법학 | null | kci_detailed_000149.xml | |||
ART001505514 | oai_dc | 이명박 정부하의 국가인권위원회, 위기인가 기회인가? | The National Human Rights Commission Under MB Government, How to Turn Crisis into Opportunity? | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김두식(경북대학교)"
] | Article 1 of the National Human Rights Commission Act defines the purpose of the Commission is to ensure that inviolable, fundamental human rights of all individuals are protected and the standards of human rights are improved. Unlike other governmental agencies, the National Human Rights Commission of Korea (NHRCK) has developed its uniqueness not as a “neutral” agency but as a “partial” agency to the victims of human rights violation and discrimination and this uniqueness can be said as the justification of its existence. In order to assure this uniqueness, the first thing to be secured is its independence. The NHRCK cannot play a needed role and does not stand for the oppressed and discriminated unless it stands independently from other powers. Under the Lee Myung-Bak Government, however, the NHRCK is confronted with many challenges such as the President's trial to make the NHRCK one of many presidential committees, the revision of the Office Regulation for the personnel cut of the NHRCK forced by the Ministry of Public Administration and Security, the appointment of an inexperienced chairperson, and successive retirement of competent staff members.
The crisis of the NHRCK is not an unexpected situation. The basis of the NHRCK has not been strong enough to protect its own uniqueness and independence against the pressure of a human-rights-perspective-absent government.
The aim of this paper is to provide an overview and an analysis of the challenges that NHRCK has run into from its establishment. The author argues that there is an urgent need to establish an efficient and stable system which is free from political powers through examining every aspect of the NHRCK including management system. | 법학 | null | kci_detailed_000149.xml | |||
ART001505530 | oai_dc | 검찰의 현주소와 법치주의의 위기 | The Current Prosecution and the Crisis of Constitutionalism | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"서보학(경희대학교)"
] | Constitutionalism which means a rule of law is a political idea designed to prevent arbitrary enforcement and abuse of power by imposing restrictions on the powerful and government power. The basic goal of constitutionalism does not lie in justifying the enforcement of government power, but in protecting the basic civil and human rights from state power. However, constitutionalism can also be misunderstood as a rule by law, which means the people in power govern the country with the law under their feet as a tool. In this circumstance, the law is more likely to suppress the basic rights of the public and justify state violence.
With more than a half of the term having passed, constitutionalism in the present government is more or less closer to a rule by law not to a rule of law. In other words, despite the lip service to a rule of law, the spirit of constitutionalism is severely distorted by an authoritarian rule which undermines the basic human rights and degrades the law to a tool. At present, very few people believe that the spirit of law is being kept, which demonstrates a crisis of constitutionalism in Korea.
Above all, the prosecution is more accountable for this crisis than anything else. It is the strongest law enforcement agency with a lot of power in hand such as investigation rights, supervision rights over the police investigation, rights to indict, to name just a few. In addition, our law gives the prosecutors the privilege to work in the interest of the public. On the contrary, the prosecution is currently neither following the spirit of law nor contributing to public interests while being subject to the political power as its advance guard. It is in the forefront of coercing governmental policies and suppressing the public with punishment as its weapon. On top of that, it is deep into securing and expanding its vested rights, which is the main reason why the general public are disappointed with and mistrust constitutionalism in Korea. In this context, a reform of the prosecution is very urgent to restore constitutionalism in the sense of a rule of law. | 법학 | null | kci_detailed_000149.xml | |||
ART001457030 | oai_dc | 헌법재판소 미디어법 관련 권한쟁의심판사건 결정의 헌법적 문제점 | Constitutional Issues in the Decision on the Media Acts' Passage in Congress by the Korean Constitutional Court | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"임지봉(서강대학교)"
] | On October 29th, 2009, the Korean Constitutional Court held that the passage process in Korean Congress on Media Acts was illegal and the Speaker infringed upon the power of the members of the Congress belonging to the opposition parties but the passage announcement of the Acts by the Speaker was not void. The Court admitted that there were illegal and void votings and revotings in the passage process of the Media Acts but ruled it would not invalidate the Acts in terms of respecting Congressional autonomy.
This paper aims at dealing with the issue of Congressional autonomy in terms of the Constitutional law by analyzing the Korean Constitutional Court’s decisions that are concerned with the deficits in the legislative process and their effects on the validity of the passage announcement by the Speaker of the Act. To achieve this aim, this paper compares similar decisions by the Korean Constitutional Court that dealt with same issues including the Korean Constitutional Court’s decision on July 16th, 1997. After that, it analyzes and criticizes the decisions based on the Constitutional principles such as the functional separation of powers, the judicial activism and the procedural democracy. | 법학 | null | kci_detailed_000149.xml | |||
ART001457047 | oai_dc | 헌법개정론의 원인진단과 개정방안의 실효성에 대한 소고-헌법연구자문위원회의 보고서를 중심으로- | Does Korean Democracy Really Need Another Constitutional Revision?: A Critical Review on Proposals of the Advisory Commission for Constitutional Revision for the Speaker of the National Assembly | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김종철(연세대학교)"
] | Some problems with current constitutional politics can be solved not only by way of constitutional revision but also legislative reform or changes in political culture which plays a substantial role in the working of constitutional arrangements. Given that, the premise to the specific arguments for constitutional revision may be that they are envisaged to respond to the cause of problems imbedded in the target constitutional institutions and the alternatives to the present system are more effective than other means such as legislative solution. Without such practical implication, arguments for constitutional revision cannot easily acquire public support.
By taking this line of thought as a underlying idea, this essay aims to review practical implication and effectiveness of various proposals suggested by the Final Report of the Advisory Commission on Constitutional Revision for the Speaker of the National Assembly, open to the public on August 2008. The thrust of the recommendations of the Report are three-fold. First, the Bill of Rights should be reorganized in the way of being supplemented by new freedoms and rights such as the right to life and security, the basic right to information, and so on. Second, constitutional structure of government should be reformed in the direction of lessening president's power, for example, by changing the form of government from current five-single term presidency to semi-presidential or premier- presidential system. Third, judicial system should be democratized and rationalized by adopting new institutions and changing the formation of the judiciary including the Constitutional Court. Proposed judicial reforms include the repeal of recommendation power of the Chief Justice of the Supreme Court for his associate justices when there is vacancy, the introduction of abstract norm control, the transfer of jurisdiction of election suits from the ordinary courts to the Constitutional Court.
In the course of critical review on these proposals in terms of their effectiveness, the author comes to a conclusion that change of judicial system is the very field that yields the most effective result among these reform agenda while other fields are based upon false premises or for them constitutional revision is not the only means to achieve the envisaged effect. | 법학 | null | kci_detailed_000149.xml | |||
ART001457074 | oai_dc | 미국 로스쿨에서의 법률정보의 조사, 법문서의 작성 및 모의재판 과목의 교육 | Teaching of Legal Research, Legal Writing & Moot Court at the U.S. Law School | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"정봉진(영남대학교)"
] | The purpose of the legal education at the American law school is to make a student think like a lawyer. In other words, the students of the American law schools are not taught the law itself, but the way how to find the law and the way how to legally think. Two methods the American law schools use to teach the students the way how to think like a lawyer are the Socratic method and the Legal Research and Writing Program(LRW). LRW is a required course for all first year law students. LRW is a series of interrelated exercises introducing students to the way lawyers conduct legal research, analyze and frame legal positions, and present their work in writing and in oral argument. Students actively learn research and writing skills by preparing multiple drafts of memoranda and other documents and by becoming familiar with accessing to both print and electronic research materials. LRW meets weekly in the Fall and Spring semester of the first year. The first semester of LRW focuses on the writing of two predictive memos, in which students assess the arguments on each side of the issue and predict which side would prevail. In the Spring semester, the major course assignment is the Moot Court Program. Working in pairs(in a team of two), students research and draft an appellate brief concerning a simulated case set in a federal or state appellate court. At the end of the semester, students argue their case before a judge. Judges usually come from alumni practicing lawyers. Lawyers cannot provide effective representation unless they master the necessary research skills. At a minimum, lawyers must be able to find and the constitutional provisions, statutes, regulations, and cases that determine their clients’ rights and obligations. To that end, the legal research component of LRW introduce students to core tools and methodologies that will be essential in their future law practice. Recently, the law school system has been introduced in Korea, and LRW has become a required course for all first year law students. However, LRW is new to the Korean society and it is not clear how to teach the course. Therefore, it is suggested the way LRW is taught at the American law school should be considered in teaching LRW at the Korean law schools. | 법학 | null | kci_detailed_000149.xml | |||
ART001457059 | oai_dc | 소송을 통한 사회변동전략의 한계-미국의 성희롱 소송을 중심으로- | A Critical Approach to Strategies for Social Change through Litigation -with regard to Sexual Harassment Litigation in the US- | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"홍성수(숙명여자대학교)"
] | After democratization in Korea, social movements of Korea tend to use litigation as a strategic way to achieve their purpose. This is because the political struggle against dictatorship has changed into legal and institutional ways by using the established legal system. However, it would be controversial that it is appropriate for social movements to employ litigation as a strategic way. This paper deals with this issue by discussing feminist movement and sexual harassment litigation in the US. The former section discusses the history of feminist movements and sexual harassment and shows that there are various kinds of criticisms against litigation as a useful way for social change; for example, general scepticism against the effectiveness of litigation, liberalism, and Judith Butler. At this point, the US experience of social movements to eradicate sexual harassment could provide an insight about Korean legal policies against sexual harassment. The point is that we should bear in mind that litigation is simply one of various ways against sexual harassment among various sexual harassment policies. Various programmes to eliminate sexual harassment should be adopted consecutively and simultaneously. It should be also mentioned here that socio-legal studies not only focus on what law can do but also what law cannot do. | 법학 | null | kci_detailed_000149.xml | |||
ART001457023 | oai_dc | 민주적 법치국가에서 본 법규범의 효력근거 -법철학의 관점에서- | Geltungsgründe von Rechtsnormen in einem demokratischen Rechtsstaat -Aus rechtsphilosophischer Sicht- | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"양천수(영남대학교)"
] | Die Frage: Wo findet die Geltung von Rechtsnormen ihre Gründe?, d. h. die Frage nach den Geltungsgründen von Rechtsnormen - wie die Frage nach dem Begriff od. der Idee von Rechtsnormen - ist als eins der wichtigsten Probleme der Rechtsphilosophie anerkannt. Man kann einen Grund vielleicht darin finden, dass sich der Begriff, die Idee und die Geltung von Rechtsnormen miteinander verbinden, wie dies manche Rechtsphilosophen anerkennen. Aber die Frage nach der Geltung von Rechtsnormen, anders als die Frage nach dem Begriff und der Idee von Rechtsnormen, ist aus dem Grund auch wichtig, weil sie sich unter dem Namen der Verpflichtungskraft direkt auf Rechtsadressaten bezieht. Jedoch gerät die Frage nach der Geltung von Rechtsnormen heutzutage allmählich dadurch in Vergessenheit, dass sich das Rechtsstaasprinzip als ein Verfassungsprinzip fixiert und die Verfassungsgerichtsbarkeit als eine Institution, die die Materialität des Rechtsstaatsprinzips gewährleistet, funktioniert.
Seit der Mitte der 90er Jahre der letzten Jahrhundert gewinnt aber die Frage nach der Geltung von Rechtsnormen als neue Problemsformen wissenschaftliche Interessen in der wissenschaftlich-politischen Öffentlichkeit. Die sog. Medienrecht-Entscheidung, die das koreanische Verfassungsgericht am 29. 10. 2009 getroffen hat, hat auch einen wissenschaftlichen Beitrag zu dieser Frage geliefert. Aus dem Anlass dieser Entscheidung beschäftigt sich die vorliegende Arbeit mit der Frage: Wo findet die Geltung von Rechtsnormen ihre Gründe in einem heutigen demokratischen Rechtsstaat? | 법학 | null | kci_detailed_000149.xml | |||
ART001457040 | oai_dc | 양원제 개헌론 재고(再考) | Reconsidering Bicameralism | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"신우철(중앙대학교)"
] | In August 2009, the Parliamentary Advisory Committee of Constitutional Revision proposed changing Korea’s National Assembly into a bicameral legislature. This paper introduces recent studies about bicameralism, especially Steffen Kailitz’s comparative constitutional analysis of bicameralism and Adrian Vatter’s policy performance analysis of bicameralism. Kailitz’s analysis proves that bicameralism and presidentialism are “children” of the separation of powers, and that second chambers in presidential democracies tend to be more powerful than in parliamentary or dual executive democracies. Vatter’s analysis shows that bicameral structures act as a significant brake on governmental intervention and on the expansion of the welfare state, and that bicameralism is a powerful veto player to block reforms in economic and financial policy. In the context of Korean politics, the Advisory Committee’s suggestion can be understood as adopting “strong bicameralism” and it hardly seems to match the Committee’s another suggestion of adopting a dual executive system. Moreover, If the second chamber, as some regionalists maintain, is designed to over-represent certain regional areas, it may cause the unequal redistribution of wealth from capital area to regional areas, together with the under-representation of youths in the capital area. And it will also accelerate the strong regionalistic tendency in Korean party politics. | 법학 | null | kci_detailed_000149.xml | |||
ART001457091 | oai_dc | ‘자유’개념을 통하여 본 현대 법치주의의 과제 | A study on the ‘freedom’ concept in the rule of law | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"황도수(건국대학교)"
] | The ‘rule of law’ necessarily means different things to different people according to their particular moral or political position. It relates to the substance of the relationship between citizens and government, fundamentally, between citizens themselves.
The rule of law in the pre-welfare state were shaped by the experience of living in a society which permitted few citizens to vote in parliamentary elections, and in which government performed only a limited number of functions. It opposed the increased government intervention in social and economic affairs. History shows that it resulted in dictatorship.
The major concept in the rule of law in the pre-welfare state was ‘freedom’. Here arises a question. How could ‘Freedom’ make society in the rule of law autocracy.
This article deals with the ‘freedom’ concept in the rule of law. It reveals that the ‘freedom’ concept in the rule of law have two elements, freedom from the dictatorship politically and freedom of competition in free market economically. And the freedom of competition in free market necessarily contains freedom of monopoly and oligopoly. It is the main cause which make society in the rule of law autocracy. It is an inevitable consequence that the rule of law contains the social regulation.
Nowadays government has assumed a significant role in managing economic and social affairs. Government ought to play an extensive role in economic affairs and individuals must accept quite restrictive limits on their autonomy, if the legislature deems such restraints to be in the public interest. | 법학 | null | kci_detailed_000149.xml | |||
ART001457054 | oai_dc | 법률가정치 연구-한국과 미국의 비교- | A Study on the Lawyer's Politics-Comparison of Korea and USA- | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"이국운(한동대학교)"
] | The purpose of this study is to analyze the mechanism of the lawyer’s politics in Korea through a comparative research with US’s case. After digesting the previous researches of the scholars in this field, the author defines the concept and boundary of lawyer’s politics. According to him, lawyer’s politics is a specific form of politics that functions in Liberal Democracy. Under the political slogan of ‘Rule of Law’ and the ideology of ‘Legalism’, the lawyers can occupy and even monopolize the judicial process and exclude the democratically elected representatives. And this is the reason why Liberal Democracy has a tendency to incline to the lawyer’s politics in long term perspective and the lawyer’s politics become the essential factor for the political stabilization of Liberal Democracy itself. This study tries to compare the reality of lawyer’s politics in Korean and USA in three fields; (1) the size and structure of legal profession (2) the participation in the process of legal protection of civil rights and collective action (3) the judicial reform discourses in the globalization trend. As a conclusion, the author contrasts the distinctiveness of the lawyers’ politics in each country. In Korea, it is the bureaucratic monopoly of judicial power that makes lawyers apolitical nobles of law. In US, the ideal of lawyer-statesmen is no longer valid because of the commercialization of legal profession. The new ideal of lawyer-merchant is now leading the globalization of law and legal profession, which becomes a real threat to Liberal Democracy in both countries. | 법학 | null | kci_detailed_000149.xml | |||
ART001457064 | oai_dc | IPTV 도입에 따른 시장획정에 관한 고찰 | A Studies On The Market Definition After IPTV | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"홍명수(명지대학교)"
] | Internet Protocol Television(IPTV) is a system through which television services are delivered using the architecture and networking methods of the internet protocol suite over a packet-switched network infrastructure, for example, the Internet and broadband Internet access networks, instead of being delivered through traditional radio frequency broadcast, satellite signal, or cable television formats.
IPTV services may generally include live television, time-shifted programming, and video on demand, specially time-shifted programming and video on demand are based upon same technical conditions. In addition to these services, IPTV could be bundled with internet services or phone services frequently. such a characteristic of IPTV services would represent convergence circumstances of television and telecommunication services, and it must be considered for relevant market definition about IPTV services.
To define a relevant market about IPTV services, the principles of substitution possibility would be applied. Futhermor new concepts about market analyses, for example, concepts of submarket or cluster market must be examined, and the utility and the possibility of application must be considered in process of such a market definition. | 법학 | null | kci_detailed_000149.xml | |||
ART001457077 | oai_dc | 게임이론으로 바라본 위자료의 새로운 기능-의료과오소송을 중심으로- | A Study on the New Function of Consolation Money by Game Theory -focused on the medical malpractice litigation- | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"서종희(연세대학교)"
] | Traditionally, the consolation money has the multiple functions(replenishment· punishment·deterrence·prevention·satisfaction).
But recently the complementary function and the reconciliatory function of consolation money have come to light. Such functions of complementarity and reconciliation could gain further strength/validity/support when approached through an economic perspective, specifically game theory. The reconciliatory function of consolation money is most apparent in court in case of medical malpractice. According to game theory, if the plaintiff expects lower chances of winning than the defendant, consolation money is most appropriate in bringing the two parties to reconciliation. In medical malpractice cases the anticipated chances of winning of the plaintiff is generally lower than that of the defendant, due to the plaintiff’s difficulty in fulfilling the burden of proof. In such instances if the court allows for consolation money for the doctor’s breach of obligation to explain, it results in an adjustment of both parties’ interests/benefits and thereby plays a reconciliatory function. Thus, a doctor, as a professional in medical treatment, should provide proper explanation to the patients and obtain their informed consent in advance for the his medical treatments or the operations. The doctor should be held liable if he was negligent in his obligation to explain because medical treatment can be viewed as a contractual relationship between a doctor and a patient for the recovery or operation. At the same time, a doctor’s negligence in his obligation to explain can give rise to a tort liability when the doctor had caused damage to the patient as a result of his negligence. In terms of burden of proof, the doctor will have a burden of proof if the doctor’s liability for his negligence to explain is a contractual liability, while the patient will have the burden of proof if the liability is a tort liability. The patient has lost the opportunity to choose whether to be treated and how he would like to be treated as a result of not being provided with sufficient information from his doctor. If he proves the doctor’s breach of obligation to explain, the court allows for consolation money for the doctor’s breach of obligation to explain. But the court allows any damages which arose from such breach and the causation between the breach and damages in case of seeking monetary damages(except compensation for mental suffering) just in case the patient proves the causal relationship between damages and the doctor’s breach of obligation to explain.
The consolation money cannot achieve reconciliation in all medical malpractice cases. If the plaintiff unusually expects high chances of winning whereas the defendant also anticipates to win, it will be difficult for the court to induce reconciliation via the consolation money. Thus in such cases, the court considers the theories of loss of chance to medical treatment and of limit on responsibility by contributory negligence and relies the theory of limit of responsibility in addition to the consolation money to induce the reconciliation of both parties.
The court’s take on this is fitting/well-suited in terms of efficiency as it appropriately adjusts both parties’ interests and reaches reconciliation by overcoming the procedural perplexities and limitations of the lawsuit with respect to the burden of proof. | 법학 | null | kci_detailed_000149.xml | |||
ART001457088 | oai_dc | 여성주의 법학의 지형 | The Configuration of Feminist Jurisprudence | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"오정진(부산대학교)"
] | Basically feminism originated in the experience of the exterior life. So feminism has devoted much effort to have legal system for the integration into mainstream society. But there is the value of such a marginality that recognizes different voices and can feel unseen beings. And that is possible because feminism has questioned the very concept of human-beings continually. And feminism argues that life means livable life rather than just being alive. Besides, feminism makes us aware of the preciousness of differences and speaks for the importance of the extension of options. Such like that, for the life that is not named formally, feminism has lived and spoken not with abstract or formal name but with body. And such bodies have been considered as inferior things and located arbitrarily, so women have testified the unjustified pain and absurdity coming from the exploitation.
Accordingly, feminism express the legitimacy of just and free life and asks law to establish the conditions for that. Judith Butler says that the new role of law is the translator of life. Now, feminism finds power in weakness and purses to affirm vulnerable beings, dance with them and love each other. Also feminism always dreams a different new world. Of course, feminism does not forget that there are still ungone or unseen roads and learning modesty from that point, will continue her journey in future. | 법학 | null | kci_detailed_000149.xml | |||
ART001457052 | oai_dc | 87년 헌법의 역사화와 시대적 소명 | Historicizing the 1987 Constitution, Making A Future | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"조지형(이화여자대학교)"
] | The 1987 constitution, the 9th revised constitution, has been studied from the perspective of the democratization of Korea. It has largely been regarded as a “democratic” constitution with minor problems. The constitutional reform of 1987 was made possible by democratization and the “June 29th Announcement” by the ruling party presidential candidate Roh Tae Woo. The 1987 constitution granted greater protection of civil rights and a direct presidential election.
However, this study reveals that, in comparison to the 1980 constitutional draft, the 1987 constitution is more undemocratic in several ways. The constitution was formed behind closed doors in the so-called “meeting of eight,” comprised of 4 members of the ruling Democratic Justice Party and 4 members of the opposition Unification Democratic Party. With the unyielding demand of the opposition party, the national assembly’s Constitutional Revision Committee could do nothing but make the compromises between the big two parties official, excluding other political parties and forces from the table of constitutional reform.
As soon as the opposition party became more likely to grasp power, Kim Young-sam, its president, intentionally accepted the continued existence of several problematic clauses of the old constitution, considering presidential power after his seize of power. These clauses supported the dictatorial system during “the Fifth Republic” and “the Yusin regime” by giving the President authoritative power above the three branches of government. The model for the “democratic” 1987 constitution was the constitution of the “Third Republic,” which justified the military coup led by Park Chung-hee and opened the dictatorial period from 1961 to 1987. Even Kim Dae-jung, the longstanding leader of democratization movement, preserved the third-republic constitution in order not to lose the opportunities to come to power. | 법학 | null | kci_detailed_000149.xml | |||
ART001457069 | oai_dc | 한국의 TV 법정 텍스트와 시민들의 수용태도에 관한 연구 | Korean TV Legal Texts and People's Attitude of Reception | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김정오(연세대학교)"
] | This article is to study how TV texts that are representing legal matters influence to the people’s legal consciousness. The people’s legal consciousness is one of the important factors that constitute a country’s legal culture. Since the Crime Scene Investigation has been broadcasted, American citizen began to think criminal law applied more rigidly and the number of innocent cases increased outstandingly. As such, TV texts influence to the people’s legal consciousness and furthermore initiates the critical change of their legal culture and legal system.
In this article, I analyze the relationship between TV legal texts and the people’s attitude of reception. Although many foreign TV legal texts are broadcasted in Korea, this article dealts with Korean TV legal texts. The main reasons are that TV texts reflect the popular demands and the practices of their society and that they influence reversely to the people’s way of thinking and acting. Accordingly, TV texts and people are very closely interrelated.
This article is composed of four chapters. The first chapter is an introductory part. The second chapter deals with the characteristics of the Koran TV legal texts. I tried to draw their characteristics from the selected TV legal texts. In the third chapter, I dealt with the contents of the texts. How legal system, lawyers and judicial courts are represented in the texts was dealt with. Especially, what contents and images are delivered in the texts will be focused upon. The fourth chapter dealt with the people’s reception attitude towards the TV legal texts. For this analysis, I used the audiences’ reviews in the homepages of broadcasting cooperation. In the last chapter, I drew several conclusive remarks. The import of TV legal texts is to provide the images of judiciary to the lay people who have few chances to face with judiciary people. Of course these images were not so much different from the stereo type that the people have already in their consciousness. Unlike this, there is an interesting structure of confronting between legal system and citizen. The confronting structure provides some critical points against the legal system or judiciary people that make innocent citizen being trapped in trouble. In the boards there are many negative comments against law and judicial people. Especially, commenters tried to point out the problems of judicial system from the social structure or institutions basis rather than individual or group basis. | 법학 | null | kci_detailed_000149.xml | |||
ART001457013 | oai_dc | 국회 본회의 의결을 결여한 자구정리안의 법적 효력 -헌법재판소 2009.6.25. 2007헌마451 결정의 연구- | Legal Validity of Wording Arrangement Bill without Passing of Assembly Plenary Session -A Case Study of the Constitutional Court’s Decision(2007 Hunma 451)- | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"황승흠(국민대학교)"
] | This paper is discussed about the Constitutional Court’s decision (2007 Hunma 451) that deals with the legislation-procedural constitutionality of § 37 ① 7. (prohibition clause of money changing business) of the Game Industry Promotion Act. This clause passed the National Assembly plenary session on 22 Dec. 2006, but was promulgated by the government on 19 Jan. 2007, in different wording compared with the bill passed the National Assembly plenary session. The National Assembly Secretariat arranged the wording of the bill passed the National Assembly plenary session without explicit delegation of the Assembly plenary session, on the basis of practice.
The Constitutional Court declared the due process principle applied on the legislation process. And it is possible to arrange the wording of bills after passing the Assembly plenary session if there is the delegation of the Assembly plenary session according to § 97 of the National Assembly Act. The arranging wording should be taken place within not substantially changing meaning of bills. This case is estimated that the Assembly plenary session made an implied consent, because of long practices and not claiming against practices. But the opinions of the Constitutional Court was divided on whether the arranging wording of the prohibition clause of money changing business was within not substantially changing meaning of bills. The majority opinion said that the arranging wording of the prohibition clause of money changing business was the same meaning if it was interpreted restrict. The minority opinion said that the meaning of the arranging wording was different compared to the bill of passing the Assembly plenary session, therefore, the part of expanded meaning shall be unconstitutional.
In fact, there was no difference between majority and minority opinion in the conclusion that it was unconstitutional that the meaning of the arranging wording was different compared to the bill of passing the Assembly plenary session. However, the majority opinion considered two clauses as the same meaning. This opinion of constitutionality is unstable, because it depends on interpretations. Rather, the opinion of partial unconstitutionality is more rational, because it claims against misconceived legislation practices and prevent from occurring disputes about interpretation in future. | 법학 | null | kci_detailed_000149.xml | |||
ART001457085 | oai_dc | 2008-2009. 필수유지업무결정에 대한 비판적 고찰 | The Critical Research for 2008-2009 Essential Preserving Service Decisions | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김남근(참여연대)"
] | We have pointed out throughout that the compulsory arbitration for the labor strife in a essential public utilities was unconstitutional for the view of its trespassing a labor’s collective action essentially. ILO had also criticized it as invading right to labor. With introspective consideration in this manner, the essential preserving service institution was introduced. In the course of legislation, however, even a minimum criteria with respect to the essential preserving service had not been prepared, with many issues committed to labor relating parties or labor administration. As the result, many diverst of interpretation question had thrived and unsettled legislative duties remained. In addirion, in the coures of deciding the criteria of essential preserving service, the labor relation board assumed operative attitude like preceding compulsory arbitration. That is, the labor relation board did not intend to establsh a bill for the criteria of essential preserving which was consistent enough with the both labor relation parties in the way of mediation, and intend to dispose it in the style of compulsory arbitration empathizing only rapid settlement. On the other hand, the board boardened the extent of a essential preserving service and, decided the criteria of the essential preserving service as even 70-80% of ordinary services. Consequenly, the right to a collective action was limited broadly and in advance by the essential preserving service institution, likewise by a the compulsory arbitration system. That is why we asserted that it violated the prohibitional principle of over-limitation In the 2008-2009 process of deciding essential preserving services, it had been exposed the problems that the board jumped over the supplementary role related to essential preserving service agreement, that such criteria of essential preserving service as 70-100% were conclued, that in the content of the decided, were omitted riciprocal benefits and protection of law between general public convenience and right to collective action, that the board did not set the term of the validity in the essential preserving service decisions, the provisions of the law were not clarified and accurate. To overcome the unconstitutionality and the problem, the following remedies should be introduced ; the maximum level which is for the purpose of preventing the board decisions from exceeding 50%, making a chang in trial process from compulsory arbitration to mediation, the tentative decision which has six months to a year short term of the validity, making a chang in the punishment of the violation against the decisions from penal servitude to fine or diciplinary punishment. Above all, It is important that the boards make an endeavor to improve the related insitutions in the direction of harmonizing the general public convenience with the right to collective actions. | 법학 | null | kci_detailed_000149.xml | |||
ART001399365 | oai_dc | 한국적 ‘검찰사법’ 체제의 탄생 ―일본적 ‘검찰사법’의 유산과 해방 후 입법의 결과― | The Birth of the Korean ‘Prosecutorial Justice’ -The Legacy of the Japanese Criminal Justice System and the Korean Legislation after Liberation- | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"문준영(부산대학교)"
] | It is often said that Korean public prosecutors are very powerful but there is no effective check on their power. The basic structure of the Korean criminal justice system and the public prosecutors’ organization is modeled after the Continental criminal justice system. Korean criminal justice was popularly called “prosecutorial justice” as Japanese one. It means that the prosecutor’s role and influences in criminal justice is very dominant. The public prosecutor’s centralized and hierarchical organization, political partisanship, and subordination to the government are popularly criticized as the opposite to their nature and function as a objective office or quasi-judicial officer. How to control the danger of politically abusing the prosecutorial power by government has been one of big issue in the judicial and political reform discussion. This article explores the origin of the Korean “prosecutorial justice,” and examines how the legal- institutional basis of the problematic phenomenon was made. First, it begins by reviewing “prosecutorial justice” of Modern Japan and colonial Korea in order to find the legacies such as the institution of prosecutor-general, theory about the unity or indivisibility of prosecutor, and the legislative proposals for the future. Second, it examines After-Liberation legal reform aimed at the de-inquisitorialization of the criminal justice system; it then reviews four issues and its legal results: prosecutorial discretion, admissibility of written evidence prepared by prosecutor and police in trial, prosecutor’s monopoly to apply warrant to the court, and changes in pre-trial procedure after abolishing the instruction(pre-trial investigation exercised by judge of instruction). Third, it reviews the characteristics of prosecutor’s organization reflected within the Public Prosecutor’s Office Act of 1949. | 법학 | null | kci_detailed_000149.xml | |||
ART001399423 | oai_dc | 한국 법의식 조사에 대한 연구 방법론 검토-2008 국민 법의식 조사연구를 중심으로- | A Methodological Examination of Studies on Korean Legal Consciousness | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"염유식(연세대학교)"
] | This study tried to examine the research methodological issues of previous empirical studies on legal consciousness, especially the 2008 research on Korean People’s Legal Consciousness. Korean studies on legal consciousness have successfully produced two major interesting theoretical issues. First, although ‘legal culture’ seemed to play a vital role in legal lives in Korea, we did not agree on how we treat it in describing or explaining legal consciousness. It is time to re-evaluate the debate with regard to empirical data and consider how to define and re-define legal culture so that it can be empirically examined. Second, it was interesting to observe some discrepancy in attitudes between individual-level and group or societal level. For example, respondents reported that they were faithfully following the law while the same respondents also believed that Korean society was not law-abiding. Also Korean people believed that law was not so unbiased in practice but they eagerly filed lawsuits. These two issues must be elaborated at theoretical level especially with regard to empirical examination and also survey studies must consider how to operationalize and measure theoretical concepts to explain and describe legal consciousness from when survey items are designed. | 법학 | null | kci_detailed_000149.xml | |||
ART001399432 | oai_dc | J.S.Mill의 「자유론」에 나타난 자유 개념에 관한 일고찰 | J. S. Mill on Liberty | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"윤성현(서울대학교)"
] | The significant influence of John Stuart Mill’s work, On Liberty(1859), is not limited in Anglo-American literature as it gained international recognition. The aim of this article is to revisit the concept of liberty in Mill’s On Liberty from the perspective on constitutional rights.
In ChapterⅠ, the argument begin, by asserting the reason On Liberty is of a value even in Korea in the 21st century, while Mill was the leading political thinker of the ‘New Liberalism’ in Britain in the 19th century.
In Chapter Ⅱ, I examine the meaning of his self-regarding/other-regarding distinction. I think that the distinction corresponds to the dichotomy of individual/society, and by society it includes the concept of state(that is, broad sense of society=state+narrow sense of society). In my view, the basic purpose of this distinction was to defend individual freedom against society.
In Chapter Ⅲ, I examine Mill’s ‘principle of liberty’ and lists of liberty. Firstly, I challenge the validity of the principle of liberty -that individual liberty may not be restricted except to harm to others. Secondly, Mill’s lists of liberty mainly comprise “the inward domain of consciousness(liberty of conscience, liberty of thought and feeling, and liberty of expressing and publishing opinions),” “liberty of tastes and pursuits” and “liberty of combination among individuals.”
In Chapter Ⅳ, as I try to extract Mill’s constitutional concept of liberty from above-mentioned argument, my attention was directed to Berlin’s account- negative/positive liberty. I contend that Mill’s constitutional concept of liberty is the combination of the negative/positive liberty.
Though it is partially true that Mill’s works and principle of liberty did not succeed, I believe that his suggestions for “individual freedom” against “tyranny of the majority” are still in effect in the present days. Furthermore, his methodological approach that covers the sphere of principle and its applications sets a good example for the constitutional rights discourse. Therefore, in conclusion, I suggest that we answer the questions posed by Mill in On Liberty in order to solve the constitutional problems in Korean context. | 법학 | null | kci_detailed_000149.xml | |||
ART001399440 | oai_dc | 생명관념의 기초적 고찰-기든스, 푸코, 아감벤의 정치철학적 논점을 중심으로- | The concept of ‘Life/Bio’ -In relation to the philosophical view of Giddens, Foucault, and Agamben- | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"임미원(한양대학교)"
] | Life politics and biopolitics have become the interesting topics in recent years. In Giddensian sense life politics is a politics of self-actualisation in a late modern environment, where the reflexivity links self and body to global systems. It is related not only to the increased abilities of individuals to make choices about their way of life, but also to the increasingly intrusive medical and genetic technologies which affect them directly. Life politics creates new interdependence in the meaning of new sociability and it can increase the individual reflexivity or self-realization.
On the contrary to this late modern liberal concept, biopolitics in Foucault’s analysis is not based on the individual reflexivity, but on the modern technology of governmentality that use multiple dispositifs. The new biopolitical dispositifs are born once economy and politics became imbricated with one another. On the one hand the new biopowers are interested in the human bodies and their potential, on the other they seize life and body as the object of its exercise. Biopolitics, as new process of political creativity, is concerned with the manner of managing individual/population in use of the modern methodology of discipline and regulation. Above all the Foucault’s genealogy of the modern subject reveals the interaction between the techniques of domination and techniques of self.
Agamben’s analysis of modern biopolitics can be read as a radical variation of Foucault’s. On the basis of the ancient distinction between ‘zoe’ and ‘bios’ he insists that the introduction of the zoe into the sphere of bios is the decisive signal of modernity. The modern sovereign power makes bare lives(zoe) included in the political/juridical system through the exclusion of them. Both Foucault’s biopower and Agamben’s sovereign power leave no room for the autonomy of self and body of modern individuals.
The difference of these three concepts lies not only in their macro-prospect of modernity, but also in the micro-analysis of the interaction between modern body, self, and power. | 법학 | null | kci_detailed_000149.xml | |||
ART001399445 | oai_dc | 성매매에서의 ‘유사성교행위’ 관련 판례를 통해 본 성매매의 범죄성 문제 | The Issues on Criminality of Prostitution Shown from Precedents Related to ‘Analogous Intercourse’ in Prostitution | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김지혜(이화여자대학교)"
] | In the Anti-Prostitution Act, the types of intercourse, as the requisite of prostitution are divided into intercourse & analogous intercourse. To interpretate the legal meaning of analogous intercourse & fix the category relate to arranging the boundary line to punish prostitution. But, in addition to much debate in criminality of prostitution, the nation didn’t clarify the reason of punishing prostitution during the enactment, and the purpose of legislation with the benefit & protection of the law aren’t clear, so it’s difficult to perform statutory interpretation & benefit sentencing. Especially, whether the act of stimulating genitals with hands or feet is analogous intercourse sparked a fierce debate. So, this study intends to inspect on what a basis & standard the Court decided and, as a key point of decision, what a ‘purpose of legislating Anti-Prostitution Act’ is, and to discuss how to judge ‘Criminality of Prostitution’.
In the lower court & Supreme Court, they decided analogy mainly based on the degree of men’s sexual satisfaction who purchase sex originated from statutory interpretation of analogous intercourse. However, judging from such a standard, as seen from the different sentences by the lower court, statutory interpretation couldn’t be the practical standard of judging. As the result of examining the reason of judging, in the decision of the Supreme Court, the purpose of law understood as eradication of prostitution through punishment acted as the overwhelming argument. But, the purpose of punishment of a must can’t be the basic legal purpose or reason of being guilty, and it seems that sexual sense or moralism of a judge is reflected in the necessity of such a punishment. The purpose of legislation of the Anti-Prostitution Act should be the human rights protection for ones who sell sex. But, only one decision of not guilty in the lower court was based on the standard of the degree of violation of human rights of women who sell sex. | 법학 | null | kci_detailed_000149.xml | |||
ART001399416 | oai_dc | 민사소송의 변호사 대리율 현황과 그 추이 | Trends and Analysis of Lawyer Representation Rate in Korean Civil Litigation | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김도현(동국대학교)"
] | Through collecting data from the Sabopyongam, the yearly report of the Korean Judiciary published by the Ministry of Court Administration, on the number of Korean civil litigation cases and the number of cases among them represented by practicing attorneys, the author could obtain the lawyer representation rates in civil cases of first instance during last thirty years except those from 1995 to 2001. The difference between the author’s method of calculation and that of others is that the author has separated plaintiff’s attorneys and defendant’s attorneys, treating them as two cases of representation.
Recently, the lawyer representation rate in Korean civil litigation has rapidly increased, reaching over 20% in 2008 compared to 7% in 2002. During the 1980s and the 1990s, however, the lawyer representation rate was fluctuating around 10% as a result of interaction between the number of civil cases and the number of practicing lawyers. The astonishing increase of lawyer representation rate during last five years seems to be largely due to the increase of the number of lawyers, the increase rate of which was somewhat faster than that of the civil cases. On the other hand, another factor that the average number of cases represented by one lawyer, which has increased more than twofold during the same period, should not be neglected though.
Among many independent variables affecting the lawyer representation rate, the most outstanding one has become proved to be the number of practicing lawyers, statistical coefficient of which being much bigger than that of the number of litigation cases. For the Korean judicial system to be able to develop continuously further beyond the 20% of representation rate not only in quantity and but in quality as well, the annual number of lawyers newly entering the legal service market should be greatly increased to a much higher level than the current scale, as long as we Koreans are not content with the 20% of representation rate and more than 58 cases per year represented by one lawyer. | 법학 | null | kci_detailed_000149.xml | |||
ART001399437 | oai_dc | 한국전쟁 집단 희생 피해자에 대한 배상과 보상의 입법 | The Legislation on the Compensation for the Victims of the Massacres during the Korean War | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"임상혁(숭실대학교)"
] | It is very natural that any nation should compensate for its war crimes. However, in Korean society, not only has the compensation been disregarded, but also has the mention of this matter been considered as a taboo. Even though the bereaved families made efforts and revealed the war crimes done by the authorities, but they couldn’t be compensated for their damages. They, whose all efforts were frustrated, appealed to the judicial remedy as the last resort. But they hardly accomplished their purpose. Recently an exceptional judgment of the first trial was given for the bereaved. In this case, however, the solatium was 50 or 150 times less than that of other infringement cases on the human right. Massacre cases are too difficult to be compensated through the judicial system as followed table.
Table : The judicial remedy according to the victim types
Still, many cases on this matter are waiting for the judgement. It is not only severe for the bereaved families but also inefficient for the government to settle all the cases in this individual way. And the judgements seem to be various. Thus it is desirable to deal with them uniformly through the new legislation. In the past there were some acts on the several cases. But the journeys of making the laws were quite perilous. So the legislation on the compensation for the victims of the massacres should be collective and uniform. And in this way the bereaved of the massacres by the enemy can be also remedied. | 법학 | null | kci_detailed_000149.xml | |||
ART001399427 | oai_dc | 의료연구에 있어서 개인건강정보 보호 및 활용-미국 HIPAA의 프라이버시 규칙을 중심으로- | The Protection and Use of Health Information in Medical Research-A Study of the HIPAA Privacy Rule- | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"박종현(국민대학교)"
] | In the U.S., the HIPAA Privacy Rule establishes a federal floor of privacy protections for most individually identifiable health information. In particular, the Privacy Rule sets forth the conditions under which protected health information(PHI) may be used or disclosed by certain healthcare providers, health plans, and healthcare clearinghouses, and the means by which individuals will be informed of such uses and disclosures. In addition, the Privacy Rule establishes certain requirements that must be satisfied before a covered entity may use or disclose PHI for research activities. The Privacy Rule generally requires covered entities to obtain prior written authorization from each patient before using or disclosing her PHI for research activities. However, four exceptions to this rule exist. Specifically, covered entities may use and disclose PHI for research activities without prior authorization from the patient if: (1) the covered entity only uses or discloses a limited data set of information pursuant to a data use agreement; (2) the review of the PHI is preparatory to research; (3) the research is on decedents’ information; or (4) an institutional review board(IRB) or privacy board has approved a waiver of or an alteration to the authorization. These rules can be referred for making a law regarding the protection and use of health information in medical research in Korea. | 법학 | null | kci_detailed_000149.xml | |||
ART001399411 | oai_dc | 외국의 검찰제도와 한국검찰 개혁에 대한 시사점 | A comparative study on the prosecution and suggestions for the reform of prosecution in Korean | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"한상훈(연세대학교)"
] | In the aftermath of the suicide of the former President Roh Moo Hyun, the Korean prosecutors office came under cross fire. Many critics say the prosecution in Korea has a tremendous and uncontrolled power, and that its function and power should be repositioned. This paper surveys prosecutors in France, England, US, and Germany, from historic point of view and compare some characteristics including position, appointing procedure, and authority.
In conclusion, the author says the Korean prosecutor office is vested with too much power, and can not be evaluated to be politically impartial. The political partisanship of the prosecution represents a main problem in Korean judicial system. The paper suggests that 1) the appointment procedure of the Attorney General should be politically neutral and public, 2) the directive athority of the Minister of Justice should be restricted, 3) the prosecution persennel committee should be reorganised and opened to the civil society, 4) the grand jury(indictment jury) may be desirable to check partisan investigations and indictments of the prosecution. | 법학 | null | kci_detailed_000149.xml | |||
ART001399402 | oai_dc | 담론권력으로서 검찰 | Public Prosecution Services as a Discourse Power | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"이호중(서강대학교)"
] | Nowadays public prosecution services(PPS) in Korea are confronted with a crisis of legitimacy in their activities. Whereas the past criticism was mainly focused on the prosecutors’ non-prosecution or ‘target prosecution’ in the political corruption cases, now there are more concerns about the excessive and active use of prosecution power against the critics of government policies. This paper aims to review and disclose the political biases of PPS activities through legal discourse analysis.
Many articles emphasize that the control over the power of PPS should be strengthened in order to achieve the independency of PPS from the political power. However, this paper pays more attention to the discourse power of PPS, that is, PPS as an agency of legal discourse power have an authority to define a social matter as special ‘crime’, where the dominant political discourse is reflected into the legal discourse of PPS. And it is important in this paper that the legal discourse of PPS is more and more related to the political-ecomonic ideology of neo-liberalism.
The characteristics of legal discourse of PPS are followings.
Firstly, the ‘law and order policy’ of new government declares ‘zero-tolerance’ and strict prosecution policy, which results in excessive and strict control over critical expressions of citizens opposed to the government and ‘ruling class’.
Secondly, ‘risk’ of collective activities, such as rally, assembly, strike of labor union, is usually overestimated as harmful to the economic development, although they should be regarded as a democratic expression.
Thirdly, ‘public good’ is regarded only as private interest of large number of people. the original meaning of ‘public interest’ which exists in the context of democracy is disappearing in legal discourse of PPS.
Conclusions : this paper suggests that we should disclose the anti-democratic legal discourse of PPS, and that we should make every efforts to develop counter-discourse based upon democratic principles and human rights of citizen. | 법학 | null | kci_detailed_000149.xml | |||
ART001399406 | oai_dc | 검찰권 통제 및 검찰제도 개혁 방안 | The Control of the Prosection Power and the Reform of Prosecution System | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"하태훈(고려대학교)"
] | The law of the constitutional state is not the tool of control and suppression, but the system to guarantee the civil liberty and right. After the Lee Myung Bak government comes into power, the basic proposition of democracy is damaged. The main cause of these problems has something to do with the ministry of Justice and the prosecution. Should we leave the prosecution which gets subject to the control of politics and have a stigma - “the servant of current government” and let them realize the will of existent power of government?
Certainly Not. The Ministry of Justice and the prosecution shouldn’t adhere to the will of government but actualize the will of law(Justice). This should not be the department which seeks to the result that the existing government want politically, but turn into the independent department to find the result which accords to the law.
The reason to reform the Prosecution and reestablish the relationship between the Ministry of Justice and the Prosecution is to secure the fair execution of power to investigate and prosecute the political case. Under the present circumstances, it is highly possible that the minister of Justice(political officials) could deeply influence on the investigation of prosecution. In order to assure the independence of prosecution, the influence of Minister-of-Justice on the prosecution should be suspended. The political neutrality and democratization of prosecution is the keyword on the spot.
But the present is under an unfavorable circumstances to rehabilitate the political independence of the Prosecution and to reform it which has relatively weaker restraint and control than powers(authorities). However the Prosecution and the Government themselves have raised the reform bills in the previous political power, the current government and the ruling party seem not to want to reform the Prosecution. Therefore, we can’t entrust the task to reform the prosecution to the political powers or the prosecution themselves.
I suggest to organize “the Special Committee on the Prosecution System” to accomplish successful reforms of prosecution with the help of the professionalism of legal circle, the civic group pursuing the public interest and specified effort and will of political powers to legislate. The main focus of this assignment of reforming the prosecution is “the democratization in their department” by relieving the vertical rank system and reforming personnel system. The urgent assignment is to make an institutional circumstance at which the prosecutors interpret and adapt the law with following the prescribed process by law, not the directions of chief(head) or the person who has the right to implement personnel management. | 법학 | null | kci_detailed_000149.xml | |||
ART001399419 | oai_dc | 북한의 집단주의 법원리 및 통일법 연구를 위한 시론(試論) | A Study on the Approach Attitude of ‘North Korea’s Collectivism Legal Principle’ and ‘Unification Law of Korea’ | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"신동룡(강원대학교)"
] | Collectivism legal principle(CLP) is the basis of the social life and the legal system in North Korea. The previous researchers about the CLP contributed to making a foundation of North Korea Law studies in poor surroundings. But, although they raised a question of “how do the individual profits harmonize with the national profits through CLP in North Korea?,” they concluded that this accordance is impossible in a liberalist view point. And they evaluated that the CLP is the totalism legal principle.
But, previous researchers committed an error which they did’t consider the utterance-contexts of legal texts about CLP. In this reason, they had a risk of the disagreement between their research results and the North Korean’s real life, and they will not help to the South-North Korea’s unification law research.
This article suggests the dialogic ethical approach attitude (DEA) about CLP and the unification law research, in stead of previous researcher’s external approach. This article argues that if we want to study the CLP, we must inquire into CLP on the 5 steps: ① Recognizing the other(North Korea)’s external identification, ② Having a dialoge with each other, ③ Understanding and sympathizing the other in his contexts and positions, ④ Evaluating the other in my contexts and positions, ⑤ Having a innerly persuasive discourse and making a polyphonic unification. | 법학 | null | kci_detailed_000149.xml | |||
ART001301010 | oai_dc | 지피엘과 동적 링크 -자유·오픈소스 공동체의 법문화- | GPL and Dynamic Linking -A Sketch on the Legal Culture of Free/Open Source Software Community- | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김도현(동국대학교)"
] | GNU General Public License(GPL), which was invented by Richard Stallman and the Free Software Foundation, grants to the public the right of copying, distributing, and modifying GPL’d computer programs in pursuit of the welfare of the society. However, if it is construed too extensively to cover dynamic linking to the software libraries, GPL would become collide with the copyright system sustained by the state law. Unlike static linking, dynamic linking to the library does not copy the code of GPL’d library into the developer’s source program or its executables. In spite of the Free Software Foundation’s extensive construction of the GPL, the memory of user’s computer stands outside of the copyright holder’s control. Consequently, GPL does not cover dynamic linking to the GPL’d library in its valid scope of effect.
Despite the potentiality of collision between GPL and state copyright law, the Free/Open Source Software(F/OSS) community has almost always conformed to the strict construction of the GPL, ignoring more generous interpretation by the state law. At the same time, F/OSS community never filed a lawsuit for about twenty years since the release of GPL version 2 against possible infringements of the license broadly construed. F/OSS community seems to hold fast to the hacker’s culture handed down from the 1970s. This cleavage between F/OSS culture and state law can be characterized as a sort of legal pluralism. | 법학 | null | kci_detailed_000149.xml | |||
ART001301073 | oai_dc | 프랑스 국립대학교의 법적 성격과 그 운영 | Le statut juridique et le fonctionnement des universite´s de la France | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"홍기원(서울시립대학교)"
] | Le 9 mars 2007, le gouvernement coréen a présenté son projet de loi relatif à la réforme des universités nationales, qui a pour objet de doter celles-ci d'un statut de la personne morale. Les universitaires craignent que la politique du gouvernement soit menée dans le cadre du néolibéralisme afin de priver enfin les universités nationales de l'autonomie financière et scientifique. Cette étude tente de présenter aux universitaires coréens l'esquisse du régime des universités françaises telles qu'elles sont aujourd'hui, elles-mêmes face à la réforme de leur côté. L'une des particularités que celles-ci ont consiste en ce qu'elles bénéficient d'un statut juridique particulier dans la législation française : elles se comptent d'abord au nombre de la personne morale, alors que l'autonomie financière et scientifique est suffisamment garantie au profit des universités. Cela nous permettra de réfléchir à nouveau sur la vraie idée des institutions universitaires et sur le bon sens de la possible réforme de l'enseignement supérieur en Corée du Sud. | 법학 | null | kci_detailed_000149.xml | |||
ART001301049 | oai_dc | 법의 세계화와 국가주권 -욕망과 개념의 관계적 관점에서- | The Globalization of Law and National Sovereignty -The Connective Perspective on a Concept with a Desire- | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"엄순영(경상대학교)"
] | As the globalization of law boosts the influence of global law, it germinates the doubt whether a national sovereignty has still supremacy or not. Accordingly recently there are many researches about this subject. The related theories present the contradictive contents. In this paper we divide these theories as four groups and view that our desires for what we want to realize by the concept of the national sovereignty are related with the concept. We name this view the connective perspective on a concept with a desire.
For tracing this desire first we investigate the connective perspective on a concept with a desire(II) and then the national sovereignty’s genealogy and its escape(III). Because the subjective desire for what want to realize by the national sovereignty can’t deviate completely from the frame of the objectively pre-existed national sovereignty’s genealogy. And then we explain the new theories about it’s escape(IV). Next we argue the connection of this escape with our desires(V).
In conclusion a concept of national sovereignty is related to the depictor and his/her desire. Accordingly we should express our desire for what we want to realize by the concept when describing it. But we cannot value but only sympathy the desire. | 법학 | null | kci_detailed_000149.xml | |||
ART001300875 | oai_dc | 로스쿨에서의 이론교육과 실무교육 | Education of Theories and Education of Practices at Law School | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김창록(경북대학교)"
] | Even though the Korean law school system, which is introduced as a new legal education and training system, will launch in March 2009, the debate on what and how should be taught at law school is still controversial.
While the ‘practice’ has been emphasized over and over again in the debate on the introduction of law school system in Korea, the content and methodology of the education of practice at law school still remains unclear. Most Korean lawyers seem to think that law schools should teach the technique for lawsuits just as the Judicial Research and Training Institute. The new education of practice, however, should not be restricted to the judges’ and prosecutors’ technique. It should cover the broad area of what lawyers do, overcoming the existing narrow concept of legal practice.
On the other hand, the education of theory should also be remodeled. The Korean legal education at universities and colleges has developed noticeably even in the poor conditions after the liberation from colonial rule in 1945. However, it still faces the criticism that it has been inclined to the import of the foreign theories and has not reflected the ‘Korean reality’ satisfactorily as a result of its subordination to the National Bar Examination. The new education of theory should highlight the practical meaning of the theories in the Korean society, overcoming the existing passive thought clinging to the examination.
For a new legal education at Korean law school, professors for theory and professors for practice should work together. They should make concerted efforts to settle as soon as possible the content of the bar examination which should be closely connected to the education at law school, and should cooperate with each other in the classes of law school. | 법학 | null | kci_detailed_000149.xml | |||
ART001300993 | oai_dc | 모의재판, 무엇을 어떻게 가르칠 것인가? | Moot Court or Mock Trial, what should be taught and how? | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"홍대식(서강대학교)"
] | The law school system, which is adopted as a new Korean legal education system scheduled to launch in 2009 seems to be based on reflection that the current system is not sufficient to connect legal education with judicial system. The current system constitutes separate two courses; the education of legal theories at undergraduate law department and the education of legal practices at Judicial Training Institute. These are formally linked with each other by the National Bar Examination, but are of little relevance in terms of the educational contents.
According to the Act on the Establishment and Management of Professional Law Schools, 5 compulsory subjects aimed at legal practices should be contained in every law school curriculum. Those are legal ethics, legal research, legal writing, moot court or mock trial and law clinic. It remains to be seen whether the education of legal practices at law school would be focused on litigation practices or cover broader legal services such as business advisory work and legal policy. Apart from controversy about the issue which should be solved before designing the educational contents, moot court or mock trial course is suited for discussion on what should be taught and how, having a limited role of educating litigation practices.
Against this background, this paper tries to make sure the expected meaning and role of moot court or mock trial course and its limitation in Korean situation in its first part of the main body. The point is that its weight or value as a practical subject depends on which method would be taken as dominant teaching method of legal theories, between traditional lecture and discussion method and the U.S. style case method. In relation to this, a brief history and overview of the experience of the U.K. and the U.S. in moot court for civil appellate advocacy or mock trial for criminal advocacy are introduced. The second part of the main body is assigned to provide the likely picture of what can be done in the course dealing with both moot court and mock trial in one semester. In an attempt to relate this subject with other compulsory legal practices courses closely and enhance the overall educational effect, preceding education through legal research and writing courses and complementary education through legal clinic course targeting litigation skills are suggested. Sum-up and further suggestions follow as a conclusion. | 법학 | null | kci_detailed_000149.xml | |||
ART001301059 | oai_dc | 이익의 관점에서 바라본 표현의 자유 -토마스 스캔런(Thomas Scanlon)의 표현의 자유 이론 연구- | A Study on the Interest-Based Theory of Free Speech -An Analysis of Thomas Scanlon’s Free Speech Theory- | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"장철준(한동대학교)"
] | This paper analyzes Thomas Scanlon’s theories related to freedom of speech, through which he has established an interest-oriented approach to the value of the First Amendment. According to Scanlon, the value of free speech is comprised of three distinct interest groups: the participants, the audiences, and the bystanders. This framework is particularly unique in terms of the attention to detail given to the interests of listeners(audiences and bystanders), which has, traditionally, not been a free speech object under constitutional protection. These theories, therefore, broadly defend speech through articulate justification; the government cannot restrict individual speech, as the audience and bystanders potentially hold interests in engaging the speakers.
Scanlon’s approach is not intended to produce absolute protections of all speeches. The idea is to regulate speech that may obstruct human reasoning, such as subliminal advertising, which originates from his earlier absolutist thinking concerning sheer reverence for autonomy and free speech. From this, Scanlon formulated the Millian Principle, which stands as a convincing justification for the exclusion of government intervention on individual speech. However, discrepancies in this theory, which allowed for production of unjust results, prompted Scanlon to modify his rigorously liberal absolutism on free speech. Through these adjustments, we have theories that, arguably, should no longer be classified as absolutist. In actuality, Scanlon’s theories hold much potential to further harmonize government restriction on individual speech with the liberalist ideal for protective speech, which acquires larger necessity in current Korean society. | 법학 | null | kci_detailed_000149.xml | |||
ART001300941 | oai_dc | 법학적성시험(LEET) 출제와 시행의 바람직한 방향 | An Appraisal and Suggestions for Effective Administration of the Legal Education Eligibility Test(LEET) | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"이재협(서울대학교)"
] | The Legal Education Eligibility Test (LEET) is one of the most important elements to secure successful implementation of the law school system in Korea. This paper aims to review the general aspects of the LEET in comparison with the Law School Admission Test (LSAT) of the United States and to assess the first LEET administered in August 2008. Because the law school admission process is still in progress, it is premature to evaluate the test comprehensively. However, several observations can be made even with the limited experience at this stage.
First, the LEET must be designed in conjunction with the transformation of the legal education at the law school and the performance at the new bar exam, in order to enhance the predictive validity among them. Second, the legal community must come up with the concept of what it means to be ‘the legal eligibility’ itself. Third, more streamlined approach to writing exam questions, e.g., emphasizing more analytical and logical skills, operating the test bank, is needed. Fourth, the test can be administered more than once in a given year, in order to provide test-takers more flexibility. Finally, the Association of Korean Law Schools should strengthen personnel resources and institutional capacity and to conduct continuous research to enhance the reliability of the LEET. | 법학 | null | kci_detailed_000149.xml | |||
ART001300969 | oai_dc | 「법문서작성」의 교육내용과 교육방법 | A study on the teaching method and contents for the subject of 'Legal Writing' in Korean law-schools | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김동호(전남대학교)"
] | The teaching contents, for the subject of ‘Legal Writing’ in Korean law-schools, should be included in the textbook. And the teaching method should be displayed in the lecture, connecting with the textbook.
The contents of the textbook of ‘Legal Writing’ must include primarily the litigation papers, because traditionally in our country this has been the main working field of the lawyers. It is necessary for the textbook to include, ⓐ the papers about ‘whole process’ of litigation, ⓑ the papers about ‘every litigation’, ⓒ the papers about ‘all parties concerned’ joining in litigation, ⓓ the papers of judgement. When students learn how to make judgement papers, it is proper they handle ‘formal affairs’ on the whole instead of handling that of high quality, considering present limit and feature of the subject. On the other hand, it is necessary to handle the non-litigation papers properly. In the non-litigation papers, there are the papers such as ⓔ the legal-life papers like the contractual papers, ⓕ the inner papers like the business reports inside law-firm and the documents of interview with clients, ⓖ the foreign language papers like the English contractual papers.
Since it is necessary for the real cases to be presented to the students, from which the students must make papers fitting the cases, I think that it is desirable for the subject of ‘Legal Writing’ that we take the four-steps of teaching method. That is [showing forms of papers]→[showing examples of applying to cases]→[executing exercise of legal writing]→[teaching by way of correction]. The former two of the four steps should be executed by the textbook, and the latter two of the four steps should be executed by the classwork round lecture. The textbook and the lecture should closely hail to each other in the subject of ‘Legal Writing’ in Korean law-schools. | 법학 | null | kci_detailed_000149.xml | |||
ART001301038 | oai_dc | 변호사 아닌 사람의 로펌 투자 금지 | Prohibitions On Nonlawyer Investment In Law Firms | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"정봉진(영남대학교)"
] | In Korea, the Lawyer Act and the Korean Bar Association’s Rules of Professional Conduct have prevented nonlawyers from sharing leagal fees with lawyers and investing in law firms. The rules prohibiting lawyer -nonlawyer combinations from practicing law were implemented to guard against several potential ethics problems such as interference with professional independence and judgment, breaching of client confidences and unauthorized practice of law. Every state in the United States except the District of Columbia also has such a rule. This prohibition has created an inefficient legal services market. Firms cannot have access to capital markets, limiting their opportunities for expansion, reducing investments in training and technology. These prohibitions against nonlawyer investment in law firms have long presented a large obstacle to developing the legal profession. This Article suggests that these prohibitions be lifted in Korea. It discusses the source of these prohibitions both in Korea and in the United States, and the historical and ethical arguments for prohibition such as Fear of Sears, which are proved to be merely groundless concerns. These concerns are far outweighed by the benefits of allowing nonlawyers to participate in law firm. The benefits include capital for expansion, capital for investment in new lawyers and new technologies. Moreover, as the practice of law continues to be increasingly transformed from a profession into a business, it does not make sense to prevent lawyers from using the financial sources that are available to almost every other business. Nonlawyers investment in law firms must be allowed while providing sufficient protection against the anticipated evils such as interference with lawyers’ independent professional judgment and breaching of client confidences. | 법학 | null | kci_detailed_000149.xml | |||
ART001301019 | oai_dc | 일본식 법률용어의 정비와 과제 | 日本式法律用語の整備と課題 (A Study on the Reformation of the Legal Terms in Japanese Style) | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"임상혁(숭실대학교)"
] | 本稿はいわゆる日本式法令用語の整備の意義、進行過程、問題點を指摘した。用語純化の對象としてしばしば話があることは訓読で読める用語である。しかしこれを基準として整備對象を定めることは因るのである。たとえば、株式會社の代わりに19世紀末の韓国學者の使った股本會社に戻る方がもっと難しい。日本式用語が傳統漢字語から由来したのか、あるいは日本固有語から来たのかをわず、法生活においてなれる言葉なのか、どうか、ということが関鍵となるべきだと思う。そのためには ① 法律用語と ② 法律用語ではない法令用語を明らかにすることが必要である。②に属する日本式用語は國語學的な純化の方式が出来る。しかし法律と法學において使われる專門語としての法律用語に対しては、その成立、槪念語としての性格、代替可能性などを検討して、槪念の損傷や變形がないようにしなければならない。 | 법학 | null | kci_detailed_000149.xml | |||
ART001300896 | oai_dc | 로스쿨 체제하에서 교양법학교육의 필요성과 범위 | Legal Education as Liberal Arts and Sciences in the Era of Korean Law School System | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김종철(연세대학교)"
] | This short introductory essay aims to draw public and academic attention to legal education as liberal arts and sciences which is to face a difficult situation as Korean law school system launches in 2009.
Since the Law School Act prohibits universities with law school from opening any law degree course at undergraduate level, law as liberal arts and sciences in those universities can be ignored in university education system. The author argues that to avoid such possibility legal scholars need to do their best to make university administration and scholars of other disciplines recognize the importance of law as a academic subject and provide legal education system within university curricula. One option to do that is the institutionalization of student needs research for law classes and the establishment of committee for law as liberal arts.
The author also argues that legal education in universities without law school should reform their curricula and teaching methods which may be differentiated from professional legal education at law schools to attract students interested in law as liberal arts. | 법학 | null | kci_detailed_000149.xml | |||
ART001301027 | oai_dc | 법학전문대학원에서의 법조윤리 교육방법 | Research on the Way of Education for Professional Responsibility in the Law School | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"한인달(영남대학교)"
] | ‘Professional Responsibility’ as used in Korea was not the rule to be applied in actual life, but it was just considered as moral ornament. Legal education in Korea has been subject to the judicial exam, focusing on legal knowledge only and overlooking ethical aspect for the lawyers, which distorted the goal of legal education. In addition, whenever irrational events take place attributable to the privileges of his or her former post, personal connection, sense of privilege, the need for education of the professional responsibility was discussed with no effort to resolve the fundamental problems, which was insufficient for the education or system of professional responsibility to settle down.
Professional Responsibility was adopted as one of the required courses in the law school to be opened in March, 2009, and also adopted as one of the required courses for bar exam. As the result, it is expected that education of professional responsibility be conducive to sense of ethics for the lawyers. In addition, it is also expected that professional responsibility can provide high quality legal service by preventing irrational behavior of the legal profession and by producing clean legal climate.
Professors to teach the course of professional responsibility in the law school are in difficult situation because they received no formal education for professional responsibility and they have no minimum materials for the course, which is attributable to the low concern for it and to the distorted legal education focused on the bar exam. However, it is not considered too difficult to settle down the course for professional responsibility in the law school within not too long period if the law schools can develop the common textbook for the course and utilize materials and system of the law schools of United States and Japan based on the education for it offered in Seoul National University and in the Judicial Research and Training Institute. | 법학 | null | kci_detailed_000149.xml | |||
ART001300957 | oai_dc | 법조윤리, 무엇을 어떻게 가르칠 것인가? | Legal Ethics as a Subject of Law School Education: What and How to teach? | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"한상희(건국대학교)"
] | This essay deals with a part of Law School Education. The Law School Act of 2007 has opened a huge possibility to transform Korean judicial system, because it changed the method and procedure of training and recruiting lawyers. This act has introduced to Korean society a kind of American style law school system, which will cause not only conceptual but practical change of Korean lawyers system: from that of law bureaucrats to the system of legal profession. Social demands for education of legal ethics stems from that change. There are so many reasons that legal professions are controlled by ethical norms and by strong body to execute those norms, to keep them from corrupting and spoiling the legal system for their own interests at the sacrifice of public interests.
Unfortunately, however, there has been accumulated so few research products on such subjects in Korea, that teaching legal ethics will confront with big troubles because of lack of textbook and materials, with which “Korean” legal ethics can be taught. This essay points out that we, korean law professors and lawyers have so much pressing matters to accumulate and analysis lots of cases and materials and research products to publish an “uniform” textbook of legal ethics. For these jobs, this essay suggest 17 themes, which must be dealt in legal ethics class; conceptions of legal profession and their corresponding ethical demands, rationales and concepts of legal ethics, relationship of clients and lawyers, conflict of interests, ethics of in-house counsels and so on.
Developing appropriate methods of education and training is another problem of Korean law school. this essay poses only one suggestion, however: warning against the so-called socratic method as education method of legal ethics. Because there is a few theories and practices on regulation the legal professions in Korea, socratic method can make never-negligible dangers in legal ethics class: It may let students fall in confusions of concepts and disorganization of logics rather than make students scrutinize on the meaning of legal ethics. | 법학 | null | kci_detailed_000149.xml | |||
ART001353242 | oai_dc | 법과 ‘이웃’ -법치의 본원적 관계형식에 관한 탐색- | Law and the Neighbor -An Attempt at the Authentic Relationship of the Rule of Law- | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"이국운(한동대학교)"
] | This article aims to think about the authentic relationship of the rule of law. The context where the author raises this issue and tries to answer is surely Korean society and its political and legal environments. After a short recollection and self-criticism upon the author’s own frame of understanding about Korean society, he recognizes the urgent need of theoretical reconstruction in the area of epistemological and ontological understanding of law. In order to achieve that goal, this article tries to do mostly four consecutive things; (1) to reexamine the logic of the politics of law, ‘the dynamics of law-making & law-finding’; (2) to re-articulate the concept of reification or objectification(verdinglichung) which was recently reintroduced by Axel Honneth; (3) to find the theoretical need of precedent recognition and redefine it in the legal world; (4) to sketch the current states of Korean society from the viewpoints of objectification and precedent recognition. However, the highlight of this article is upon the philosophical investigation about the relationship of neighbor and its meaning toward law. The author’s method to do this is to re-interpretate the most famous biblical text of law and the neighbor, namely, the story of Good Samaritans(the Gospel of Luke 10:25-37, the Bible). This article insists that the authentic relationship of the rule of law should be the relationship of the neighbor, which is not the relationship between comrades nor enemies even though it could become one of them very easily. | 법학 | null | kci_detailed_000149.xml | |||
ART001353358 | oai_dc | ‘신분’에서 평등으로 -근대사회에서 사람의 자격과 지위- | From Status to Equality -Qualification and Civil Status of a Person in Modern Societies- | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"서호철(한국학중앙연구원)"
] | This paper examines the concept ‘status’ which indicates the various qualifications and social ranks of human beings. In Korea, from 1894, premodern social status was officially abolished. However, concerning the fact that the consitutional document elucidating the rights and duties of citizens was absent during Chosun dynasty and Japanese colonialism, the 1948 Constitution of the Republic of Korea is actually the first document which declared the equality of every person. But, in the 8th article of the Constitution, social ‘status(shinbun)’ and ‘classes(kyekeup)’ are used in a different meaning from the usage of social sciences. Morevoer the word ‘shinbun’ has multiple and ambivalent meanings. This usage can de blamed for the residue of Japanese colonialism. ‘Shinbun’ means the ranks in hierarchical societies, rather inappropriate for modern usage. After the abolition of premodern social status, every person has a qualification for citizenship and civil status instead of a hierarchical status. Modern societies and nation states are based on the imagination of social contracts among equal citizens. However, such imagination does not guarantee actual equality among people. Even today, there strongly exists ascribed status from birth and a solid social closure discriminating ‘us’ and ‘them’. Citizenship/nationality is the most prominent example. Morevoer, in the process of modernization of Korea, the abolition of ‘Yangban’ was not done by revoltuion. Therefore, oddly enough in modern Korea, almost every person pretend to be the descendents of Yangban. In this situation, the phrase such as “from status to contracts,” “from ascribed status to achieved status” are the cliches describing the process of modernization, and also remains as something to be achieved for democracy and ethical imperatives. | 법학 | null | kci_detailed_000149.xml | |||
ART001353225 | oai_dc | 법학전문대학원에 대한 재정지원의 필요성 연구 -미국의 경험으로부터의 참고- | The necessity of financial support to the law schools by the government | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"이종근(동아대학교)"
] | The decision, made in July 2007, to reform the system of legal education by creating professional law schools modeled after law schools in the United States is an epoch making events of histories of Korean legal education. From the beginning, for more than half a century, Korean traditional law school teaching has relied on an education model that focuses on theory, providing minimal opportunity for students to learn and apply the practical problem solving skills critical to becoming a competent lawyer in real world settings.
It is desirable a new legal education system should be designed with a fresh perspective without being limited by what currently exists. A new legal education system can use what is working well in the existing system and discard the rest. It can borrow from other places, systems, and professions.
But, in our case, we have basic circumscription of that kind of design from the first. That is, because Korean government has put an artificial limitations on the number of graduates and the number of approved law schools, all of the 25 approved law schools are small in size. The fact that size matters in the administration of law schools should be seized without fail.
Above all things, no greater challenge exists for a small school than the maintenance of a curriculum that offers the full range of subject matter, pedagogical variation, and skills training that a sophisticated legal education demands. In addition, because the academy and profession place new demands on new legal education system, the demand for financial resources will increase at all law schools. So, financial support by the government are essential to improve support for faculty, students, and staff and are crucial to the attainment of the institutional academic mission.
The perspectives and recommendations in this article are presented with the intent of encouraging discussion about the future of modern legal education from the viewpoint of financial support by the government in comparison with that of United States government.
Again, the inescapable fact of legal education administration is that there are certain demands that must be met if a school is going to flourish, one of which is financial support. | 법학 | null | kci_detailed_000149.xml | |||
ART001353284 | oai_dc | 차단막을 이용한 이익충돌 회피 | Screening as a Means to Avoid Conflicts of Interest in Korean Context | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"이상수(서강대학교)"
] | With the rapid expansion of law firms in Korea, the issue of conflicts of interest is becoming the most complicated and problematic in law firm practice. One of the matters unsolved and most troubling is that of screening. With this situation in mind, this paper is to review the feasibility of the screening mechanism to avoid conflict of interest in Korean context.
This paper first reviewed the related materials published in U.S. to locate the exact point of screening issue, to find out their answers and rationale to them, and to draw implications for Korean society.
Based on the findings from the review, this article argues that we may permit screening as a means of rebutting the assumption of imputed disqualification in case of lawyer’s lateral movement from one private law firm to another, but only in very conditional way. The preconditions for the permission of screening in Korea are as follows:
1. It needs to be assured that screening can not cure the concurrent conflicts interest in any way. Without lawyer’s movement, there is no screening.
2. Law firms which are too small to prevent inadvertant leaks of client’s confidential information or which do not have separate offices located far away from each other enough to prevent casual contacts between the infected lawyer and the other lawyers in the law firm, should not be allowed to mobilize screening. Screening is only for big, if not mega, law firm with multi-city offices.
3. Screening should be set up timely, i.e. before the probability of the intentional or inadvertant communication with the imputed lawyer rises. In case the conflicts of interest be detected during recruiting stage, then screening should begin before his first working day in the new law firm. Screening after motion is in itself a proof of ineffectiveness of screening.
4. Immediate notification to all the clients who have stakes in the screening, including the current client, is also important because it will alert the [former] client and allow chances of motion against the ineffective screening.
5. The burden to prove all the conditions to be fulfilled shall lie on the law firm who is willing to screen his lawyer.
6. The conditions to be fulfilled by law firm need to be codified in black letter. Without codification, it would be highly difficult for the court to coherently determine the right way of screening and for law firm to know what to present to prove the effectiveness of screening under use. Ambiguities will easily lead to the abuse of screening.
All listed above, this article added, are not exhaustive but only minimum requirements for effective screening, and are not easy things to fulfill. Still obviously enough, major law firms in Korea should follow stricter rules on conflicts of interest admittable to the global legal market if they really want to survive and prosper in the global era. | 법학 | null | kci_detailed_000150.xml | |||
ART001353519 | oai_dc | 법여성주의적 관점에서 본 출산관련 불법행위 | Birth-related Torts from the Viewpoint of Legal Feminism | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"이은영(전북대학교)"
] | The development of contraception, sterilization, TOP(termination of pregnancy), prenatal diagnosis, such as ART(Assisted Reproductive Technologies), AI(Artificial Insemination) and IVF(In Vitro Fertilization) which have been derived from the advancement of medicine and medical technology, guarantees and expands the autonomy of reproduction for husband and wife, more exactly for a couple. The possibility of birth-related torts by medical doctors or health care providers, however, has been rather increased with the medical malpractices of contraception, sterilization, TOP and ART.
New forms of birth-related torts including wrongful pregnancy·birth, wrongful abortion and wrongful implantation of relatively as well as traditional birth-related torts are not differentiated from other medical malpractice-oriented torts. Likewise, legal principles of damages for new forms of birth-related torts are not greatly differentiated from other general principles of damages as well. These birth-related torts are simply intervened between such phenomena of life as mother’s pregnancy and birth or child’s being born as new source of damage. The essence is that a doctor’s medical malpractice causes monetary expenses, psychological pain and suffering which are resulted from wrongful pregnancy· birth or wrongful abortion or wrongful implantation. Therefore the characteristics of damages are not differentiated from those of damages for other medical malpractices. | 법학 | null | kci_detailed_000150.xml | |||
ART001353208 | oai_dc | 법학전문대학원에 대한 국고지원의 필요성에 관한 연구 -일본의 경험으로부터의 참고- | Building State Financial Aid System for Korean Law Schools: Lessons from Japanese Experiences | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"신우철(중앙대학교)"
] | 법학 | null | kci_detailed_000150.xml | ||||
ART001353337 | oai_dc | 정보 교환과 카르텔 규제 | Information Exchange and Regulations of Cartel | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"홍명수(명지대학교)"
] | As to the regulations of cartel, the exchange of informations is related to the proof of the existence of agreements. The exchange of informations has been dealt with one of circumstance evidences of conscious parallelism in Sherman Act in U. S. A., and a factor which could enable one to acknowledge of the concerted practices in Article 81 of EC Treaty in Europe. And it operates upon a circumstance factor which could assume the agreements between the undertakings.
As the exchange of informations is taken into account, it is important whether the contents of informations are related to the core factors of the competition, like price or output, the substance of informations is the past or the future, or the method of building of the informations is individual of statistical.
It is important to understand the meaning of the competition restraints of the information exchange. Specially it could be decisive that the exchange of informations could contribute to strengthen the interdependence of undertakings in oligopoly market. In accordance with this understanding, the possibility of the regulation of information exchange itself has to be reviewed. | 법학 | null | kci_detailed_000150.xml | |||
ART001353439 | oai_dc | 1960년헌법에서의 헌법재판소의 최초 등장과 배경 | The establishment of the Constitutional Court in Korean Constitution of 1960 | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"정종섭(서울대학교)"
] | This article is written in order to explain the establishment of Constitutional Court in Korean Constitution of 1960.
From the Constitution of 1948, the presidential system, the Constitutional Committee and the court of impeachment was established. The Constitutional Committee executed the power of judicial review. However, because the first president Lee, Seung-Man and his government was dictatorial government, the Constitutional Committee was not able to exert its power.
The concept of constitutional court system was first introduced in the Constitution of 1960. The Constitution claimed the legitimatization of the system after the 4.19 Students’ Revolution of 1960. Moreover, the Constitution replaced the “Constitutional Committee system,” which remained nominal since 1948, to the “Austrian-German style” court.
In 1960, in order to prevent dictatorship and protect constitutional the right, Koreans applied parliamentary government instead of presidential system and established a new constitutional court. Under the Constitution, “Austrian-German style constitutional court exerted its jurisdiction for judicial review, final interpretation of constitution, impeachment, dissolution of political party, election of national president and justices of the Supreme Court, and competence disputes among state agencies.
One of the aims of the People’s Democratization Movement in 1960 was to establish constitutional court in order to prevent autocracy and effectively pursuit Koreans’ constitutional rights. Although the Supreme Court and lawyer’s association claimed the constitutional adjudication to the existing Supreme Court, Korean Public Law Association -composed of public law scholars- argued to set an independent court: the constitutional court. Indeed, the National Assembly passed the idea of establishing the constitutional court.
The constitutional court was first established in Austria in 1920 and in Germany in 1949. Apart from American judicial review, the “Austrian-German constitutional court system” had its foundation in the past regimes of Austria and Germany. In 1960, the constitutional court system was rarely known among Korean politics and lawyers. However, among the public law scholars, the court system has been carefully contemplated and studied. Although the public law scholars did not have sufficient knowledge in constitutional adjudication, their enthusiasm and interest in European court system set the foundation of nowadays constitutional court. Furthermore, because the former ruling party and the judicial system, including the Supreme Court, was considered anti-democratic since 1948 in Korea, the public law scholars had privilege over other authorities.
Therefore, under the Constitution of 1960, the establishment of the constitutional court was due to the public need of democracy and at the public law scholar’s belief in the effectiveness of the court system. | 법학 | null | kci_detailed_000150.xml | |||
ART001353312 | oai_dc | 법의식조사의 방법론에 대한 검토 -‘법태도 조사’를 중심으로- | Research Methodology of Legal Consciousness Inquiry -Focused on Legal Attitude- | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"황승흠(국민대학교)"
] | This article discusses about the research methodology of legal consciousness inquiry. The purpose of this paper isn’t to analyze the result of legal consciousness inquiries, but to study out the methodological presupposition for which the result of legal consciousness inquiries is accepted objectively and validly. The motivation-action model of traditional social science that actors’ subjective factors is a causal preceding of actors’ behaviors brings about a lot of research method for the estimation of actors’ mental state, because actors’ subjective factors can’t be directly investigated. And there are problems that what people act is directly connected by what people say. From the view of this research method, the methodological approach of legal consciousness inquiries is examined.
Taking up the main subject, firstly the equivocality of legal consciousness concepts is discussed from the view of social research methodology. It is possible to operate the definition of legal consciousness according to the research goal. The more concrete is the definition of legal consciousness, the higher possibility is it to obtain valid inquiry results.
Secondly, the social psychological question on whether legal attitudes accord with legal behaviors or not is gone over. There is only insignificant relation between attitudes and behaviors. Recently the researches of the social psychologists is concentrated on finding accord factors that raise the possibility that what kind of attitudes is connected with behaviors. It is important to make up the questionnaire in order to enhance the accord between legal attitude and legal behavior.
Thirdly, the research model focused on law-abiding consciousness is examined. The law-abiding consciousness is just one of the factors that determine the legal behavior. According to legal consciousness inquiry, people in Korean society have double standards that estimate whether or not of law-abiding between oneself and others. Therefore, only the law-abiding consciousness can’t explain the law-abiding behavior.
Fourthly, the research method for legal consciousness focused on non-sampling errors is argued. The legal consciousness inquiries occasionally bring about non-sampling errors, because the vagueness of legal concepts is accepted differently between questioners and respondents. Also, the social and educational backgrounds of respondents is the cause of making non-sampling errors. Researchers occasionally commit non-sampling errors in the interpretation of inquiry results, because of the ambiguity of questionnaires.
Finally, instead of conclusion, the research method of legal consciousness investigation through the legal action inquiry is proposed. | 법학 | null | kci_detailed_000150.xml | |||
ART001353416 | oai_dc | 로널드 드워킨에서 정치적 권리와 그 근거 | Political Rights and Their Foundations in Ronald Dworkin | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"염수균(조선대학교)"
] | An individual political right is a political aim which can override at least a marginal case of a general collective justification. One right is more important than another if some urgent collective justification will defeat the latter but not the former. The most important rights are human rights which can trump even sovereignty of a nation. The human rights are a kind of moral rights.
Political rights comprise legal rights as well as moral rights which are rights regardless of community’s acceptance. While the foundation of legal rights is community, that of moral rights is the idea of human dignity.
The idea of human dignity implies that all human beings are equal as human being. So the political community that accepts the idea must be a community of equals and people of the community have the right to be treated as equals. That is interpreted as the right to equal concern and respect. The right is the most fundamental right from which other moral rights are derived.
People in the community also have the associative rights and obligations just by being members of the community. Legal rights are a kind of associative rights. The source of legal rights is the past decisions of the community. Those decisions comprise explicit decisions as well as the principles which the decisions presuppose or by which they are justified. The integrity, that is a consistency in principle, is the political virtue which makes the legal rights be valued for its own sake and promote the moral authority of the state for excercise of coercive power. | 법학 | null | kci_detailed_000150.xml | |||
ART001353561 | oai_dc | 경험적 법사회학 연구의 방향과 제도주의 이론 | A Direction of Empirical Studies in Sociology of Law and Institutional Theory | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"신동준(국민대학교)"
] | Dominated by philosophically oriented studies from legal points of view, sociology of law in Korea suffers from the lack of sociologically oriented empirical studies. This paper argues that the balance between theoretical studies and empirical research is required for the sociology of law in Korea to advance further and get an academic status it deserves. Based on the review of both classic theories and recent studies on sociology of law, this paper suggest some key issues for empirical studies. Discussing Marx, Durkheim, and Weber, this paper examines how a researcher’s perception on the autonomy of law affects his/her understanding of causal relationships between law and society. This paper also points out that research on the effects of law on society could be more productive, in so far it also acknowledges the opposite causal direction to fully understand and explain the processes. Moreover, this paper suggests that 1) empirical studies should pay special attention to the role of agencies in the process of interaction between law and society, and that 2) it would be useful to conceptualize law as a resource to be mobilized or a instrument to be used by the agencies. Institutional theory is proposed as an good example that follows those strategies, and empirical study on sociology of law based on this theory are discussed. | 법학 | null | kci_detailed_000150.xml | |||
ART001353182 | oai_dc | 「변호사시험법」의 쟁점과 방향 | Issues and Directions for the Bar Examination | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"김창록(경북대학교)"
] | The bar examination is one of the essential ingredients in Korean law school system, which has launched in March 2009. It should be organized in accordance with the object of the introduction of the system as a new legal education and training system.
The introduction of the law school system in Korea means to shift the central axis of the legal education and training system from ‘the selection through examination’ to ‘the cultivation through education’. And, the accreditation standards of the Korean law school is the strictest in the world. Moreover, the Korean law school system contains a very special ingredient, i.e. the control over the total number of new students enrolling at law schools. Therefore, in the new system, the bar examination should remain the ‘light’ process of checking the minimum education at law school.
However, according to the ‘Bar Examination Act’ promulgated on 28 May 2009, the subjects of the examination will increase in comparison with those of the current national legal profession examination, to which anyone who has taken more than 35 credits of law related classes at colleges or the equivalents can apply, and 8 among 15 members of the bar examination committee will be judges, prosecutors or practicing lawyers.
Under such a ‘heavy’ examination, law school students would be so absorbed in the examination focused on ‘the technique in the courtroom’ that they could not afford to study the various specialized subjects, and the number of the successful candidates would be suppressed as small as possible by the judge, prosecutor or practicing lawyer committee members, who has consistently tried to control the size of legal profession.
The ‘Bar Examination Act’ should be amended in the direction that the multiple-choice examination and the option subject of the essay-type examination be abolished, and that the bar examination committee be leaded by law school professors. | 법학 | null | kci_detailed_000150.xml | |||
ART001353382 | oai_dc | 형사사법정보시스템과 개인정보처리의 원칙 -형사사법절차 전자화 촉진법을 중심으로- | Korea Criminal-Justice Information System(KCIS) and Personal Information Control Right | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"전종익(서울대학교)"
] | Electronic processing and exchanging personal data relating to criminal convictions through Korea Criminal-Justice Information System(KCIS) can restrict the personal information control right of the data's owner. Therefore, the Statute on which KCIS is based must have clear provisions about what kinds of personal criminal data will be processed by the system and what the purpose of each date processing stage is. There also should be the provisions proscribing how to manege the data, what's the time limit of data-keeping, and how to make corrections of the data. The present bill for KCIS made by Ministry of Justice has a lot of defects in this respect. Adding that, the managing personal criminal data by the system must be limited within the necessary scope for improving clear pubic interest. In order to protect constitutional right of people and not to violate separation of power system, the bill must be changed. | 법학 | null | kci_detailed_000150.xml | |||
ART001353261 | oai_dc | 이명박 정부의 ‘법질서 정책’ 평가 | Beurteilung der Politik für die Sicherung der Rechtsordnung von Lee Myungbak Regierung | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"이종수(연세대학교)"
] | Mit dem Amtsantritt der Lee Myungbak Regierung wird die sogenannte ‘Politik für die Sicherung der Rechtsordnung’ angetrieben, welche die gesetzliche Ordnung verfestigen soll. Trotz der Betonung der strengen Rechts-und Gesetzesvollstreckungen der neuen Regierung mit dem Rechtsstaatsprinzip im Vordergrund wird sie von einigen oppositionellen Seiten als ‘Rücktritt bzw. Rückzug der Rechtsstaatlichkeit’ kritisiert. Seit dem Beginn der neuen Regierung wird die verfassungsrechtlich geschützte Meinungsfreiheit einschließlich der Versammlungs-und Demonstrationsfreiheit besonders umfangreich eingeschränkt, über die Unabhängigkeit der Rechtsprechung und die Neutralität der Staatsanwaltschaft wird es ernsthaft besorgt. Außerdem wird der Menschenrechtsschutz der sozial Schwächeren und der Minderheit zurückgetreten. Die übermäßige Ausübung des öffentlichen Gewalts der Polizei und die Verkleinerung der Organisation des Nationalen Menschenrechtskomitees in letzter Zeit sind gute Beispiele dafür.
Diese Politik der ‘Sicherung der Rechtsordnung’ von Lee Myungbak Regierung erweckt Zweifel, dass deren eigentliche Absicht nicht an der Verfestigung von Rechtsstaatlichkeit, sondern an der Absperrung der Kritik an der Regirung und der Gewinnung der politisch günstigen Atmosphäre fürs zukünftige Wiederregieren liegt. Wenn dieser Verdacht nicht unbegründet ist, stellt dies die Drohung für das Rechtsstaatsprinzip und gleichzeitig die Verneinung und Einschüchterung für die Demokratie dar, die unsere Gesellschaft bisher errungen hat. Wir erwarten, dass die Regierung über den eingentlichen Sinn der Rechtsstaatlichkeit nachdenkt und den Geist der Demokratie, die Toleranz bewährt. | 법학 | null | kci_detailed_000150.xml | |||
ART000940583 | oai_dc | 사학의 자율성과 공공성의 조화를 위한 모색 : 여당의 사학관련법 개정안을 중심으로 | Zur Bewältigung des Konflikts zwischen Freiheit der Privatschule und öffenlichem Interesse：Mit Schwerpunkt auf dem Reformentwurf des Privatschulgesetzes auf Seit der Regierungspartei | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"제철웅(한양대학교)"
] | 법학 | null | kci_detailed_000150.xml | ||||
ART000940542 | oai_dc | 변호사보수에 관한 연구 | A Study on Attorneys’ Fees | {
"journal_name": "법과사회이론학회",
"publisher": null,
"pub_year": null,
"pub_month": null,
"volume": null,
"issue": null
} | [
"오종근(이화여자대학교)"
] | This Study is concerned about how attorneys’ fees should be determined, and what are the rules that control over excessive fees. A lawyer should not charge more than a reasonable fee, for excessive cost of legal services would deter layman from utilizing the regal system in protection of their rights. But the adequate compensation is necessary in order to enable the lawyer to serve his client effectively and to preserve the integrity and independence of the profession. In order to escape fee disputes, it is desirable that a lawyer reaches a clear written agreement with his client as soon as feasible after he has been employed. A lawyer can be disciplined for charging too much, and courts habe inherent authority to reduce excessive fees. For the goal to provide a simple, expeditious and inexpensive forum to resolve fee disputes should be enacted a mandatory fee arbitration system. A contingent fee agreement is now unrestricted admissible in korea. But it should be forbidden in criminal and matrimonial cases. | 법학 | null | kci_detailed_000150.xml |
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