European Constitutional Law Association最新文献

{"title":"A Study on Swiss Consociational Democracy: Focusing on the Resident Participation System","authors":"Gun Yee Bae","doi":"10.21592/eucj.2023.41.295","DOIUrl":"https://doi.org/10.21592/eucj.2023.41.295","url":null,"abstract":"Consociational democracy was systemized by A. Lijphart in the early 20th century as a democratic model suggested as an alternative to limits of majority democracy that a winner takes all. A. Lijphart points out forming the largest government, recognition of mutual veto power, member proportional of the parliament and cabinet, and recognition of a minority of autonomous rights as prerequisites for consociational democracy. According to these elements, Switzerland is applicable to a consociational democratic state of the typical Bottom-up structure that completed present federalism based on decentralism which recognized equal rights regardless of the alliance size starting from the Old Swiss Confederacy in the 13th century. Especially, initiative and referendum done at the level of the 26 states and more than 2,000 Gemeindes can be the key resident participation system which checks the nation and local governments and enables sharing power through equal participation as the new opportunities that minority opinions are not excluded but included. Especially, because the initiative and referendum systems are linked together and play a role of controlling power and have the structure that they can be done regarding taxation, increases in budget, etc which have an important effect on local finance, they more accord with the idea of local self-government that the residents themselves are the main agents of the regions. And because they have the structure that oppositions to local councils' decisions can be done by initiative and referendum, they make the residents play an enough role as the final surveillant of local decisions. Because communications between residents and regions, among residents, and regions and the central government continue to be done in the initiative process, referendum, and general assembly of the residents and the preparation process in the resident participation system of the swiss style like this, the resident participation system in the Swiss consociational democracy is the most important element of discussion premised on conversations and communications. In comparison with this, because the Korean resident participation system has the structure that initiative and referendum are not mutually linked but separately operated, it's the structure synergy effects of participation cannot be created. And because important details from a position of the residents are mostly excluded from resident participation, it is the structure that it is hard for the residents to actively participate in them. In addition, in the structure that local councils examine and vote for ordinances proposed by the residents, the need for changing their roles to more active for resident participation is raised because they are not different from the existing committees' examination. If legal consideration like this is done, the resident participation system which has more expanded since 2021 can play a role of driving the development of Korean local self-go","PeriodicalId":232789,"journal":{"name":"European Constitutional Law Association","volume":"372 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132744023","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A study on German public transportation legislation","authors":"Sunki Hong","doi":"10.21592/eucj.2023.41.593","DOIUrl":"https://doi.org/10.21592/eucj.2023.41.593","url":null,"abstract":"The right to transportation means the right of all citizens to move freely and safely regardless of economic, regional, physical, or social conditions. This, of course, includes the right to use public transportation and the right to move for the transportation vulnerable. Regarding public transport legislation as part of the right to transport, Germany is often cited as the country with the most well-established public transport system in Europe. The characteristics of Germany's public transport legislation can be summarized as follows. First, the German public transport legislation is responding quickly to the trend of the times. Second, public transport policy in Germany is, in principle, under the jurisdiction of the cantons. Third, the provision of financial support in German public transport laws is essential. Fourth, public transportation in Germany is integrated and maintained. Fifth, the German public transport law guarantees the right to move for the disabled. In order for all citizens to enjoy a universal level of transportation service, the right to transportation must first be a fundamental right guaranteed by the Constitution. Based on this, a full-scale review of public transportation-related laws and regulations should be conducted. The case of Germany gives us many suggestions in this respect.","PeriodicalId":232789,"journal":{"name":"European Constitutional Law Association","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124970847","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Science Advice as an Honest Broker: A Case Study of the National Clinical Committee for Infectious Diseases","authors":"Younsik Kim","doi":"10.21592/eucj.2023.41.17","DOIUrl":"https://doi.org/10.21592/eucj.2023.41.17","url":null,"abstract":"Politics or policy-making(administration) system tends to transfer decision-making functions to science in modern societies with increasing uncertain complexity. This tendency confines scientific discussion in extreme polarisation, which is tightly coupled to political win-lose. As science is more tightly coupled to politics and policy, the degree of freedom for each system is lowered, narrowing the room where policy alternatives are discussed and compromised. Under this analysis, the research proposes the honest broker model as an appropriate role model for scientific advisors in a modern society where uncertainty and value conflicts are growing. Scientific advisors do not prepare a single policy answer but rather present a variety of feasible scenarios and multiple policy alternatives within the scope of uncertainty. For scientific advisory to function as an honest intermediary, certain normative principles such as accountability separation between policy-making and scientific advisory system, transparency, diversity and openness should be established first. Finally, this paper attempts to apply the theoretical discussions to an institutional reformation of the current National Clinical Committee for Infectious Diseases. In this regard, the most urgent issue in the future is to institutionalize the science advice process. Such institutional settings enhance the influence of scientific advisory on policy while preventing the situation in which scientists are accused of political or legal responsibility for policy failure.","PeriodicalId":232789,"journal":{"name":"European Constitutional Law Association","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127476429","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Frame of ‘Lawfare’ and the UK’s Responses to Ukrainian War - An Analytical Research -","authors":"Hoon Cho","doi":"10.21592/eucj.2023.41.363","DOIUrl":"https://doi.org/10.21592/eucj.2023.41.363","url":null,"abstract":"The purpose of this article is to examine the UK’s response to on-going Ukrainian War through the frame of ‘lawfare’. The term lawfare is a compound word with law and warfare describing certain circumstances or cases where the law is used as a means for achieving strategic objectives like weapons in warfare. Given that both Russia’s justification for invasion as well as international community’s responses to Russia are based on various principles of international law, such an analysis will provide another insightful perspective to understand these complicated legal actions and discourses. To that end, this article first explores the concept of lawfare in international law and the notion of instrumentalising the law for justifying certain actions. Based on this understanding this paper will apply the frame of lawfare to the UK’s responses to Russia’s violation of international law. Here, the UK’s bilateral and multilateral conducts of lawfare will be addressed. Then, an appraisal and some reflections on the concept of lawfare will be followed.","PeriodicalId":232789,"journal":{"name":"European Constitutional Law Association","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127548441","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Study on the Legislative Participation of Local Governments in Switzerland and Germany","authors":"Ji-Woong Ryu","doi":"10.21592/eucj.2023.41.567","DOIUrl":"https://doi.org/10.21592/eucj.2023.41.567","url":null,"abstract":"The purpose of this study is to compare the legal systems of Switzerland and Germany to expand the participation of local governments in legislation in Korea. Today, opinions and participation of local governments are expanding through the strengthening of local autonomy and the expansion of decentralization. Currently, in Korea, local governments can indirectly present their opinions, participate in public hearings, hearings, etc. through the Local Autonomy Act, the National Assembly Act, and the legislative operation regulations, and these procedures remain objects, not subjects. In order to improve this, it is necessary to analyze the legal systems of Switzerland and Germany, where local governments and local government associations are actively participating as legislators and related parties in relation to autonomy, and review their implications for Korea. In the case of Switzerland, Kenton is widely recognized for his participation in legislation. To this end, the federal constitution stipulates in detail. Legislative participation is also recognized by expanding diplomatic affairs, and strong legislative participation is promoted through the right to request a referendum, and similar to Germany, federal senators can be formed as representatives of Canton to participate in parliamentary legislation. Looking at the characteristics of the legislative participation systems of Swiss and German local governments, the following characteristics are shown. First, legislative participation in the central government and the National Assembly is very actively recognized. On the other hand, in Germany, local governments and associations of local governments generally recognize limited and passive participation in legislation in the National Assembly. However, as a supplement to this, local governments are actively realizing legislative participation in the National Assembly through the exercise of members of the Federal Council or the right to vote. In Switzerland and Germany, the scope of affairs related to local governments is widely recognized for the scope of legislation that local governments and local government councils can participate in, but legislative participation is not limited to legislation, but even zero, rules, and plans are recognized. In order for local governments and local government councils to actively present their opinions on local autonomy and improve the legal system, including legislative participation by local governments It is thought that allowing the heads of local governments at the same national level to participate in actual state legislation and policies as State Council members could be a way to expand the institutional guarantees of local governments guaranteed under the constitution.","PeriodicalId":232789,"journal":{"name":"European Constitutional Law Association","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125605380","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A study on the direction of legislation to guarantee property rights","authors":"Jae-Tae Moon","doi":"10.21592/eucj.2023.41.509","DOIUrl":"https://doi.org/10.21592/eucj.2023.41.509","url":null,"abstract":"Recently, the problem of soaring real estate prices in Korea has emerged as a public concern. As a result, the National Assembly revised the law related to real estate to pursue a change in the existing economic order. The constitution of our country adopts democracy and is based on the principles of national sovereignty and capitalism. These constitutional principles apply to all sectors of the state. The constitution stipulates that 'the economic order of Korea is based on respecting the economic freedom and creativity of individuals and companies.' In other words, the constitution explicitly states that it is based on the private property system and private autonomy. The Constitution and Civil Law also have specific rules for guaranteeing property rights. There are also restrictions on people's property rights and regulations on public use. However, if the people are divided due to the legislative action of the National Assembly, great confusion can occur nationally. Currently, Korea is conducting a post-mortem review of whether the legislation of the National Assembly is unconstitutional. Grana has not introduced a pre-screening system. Therefore, it is necessary to fully review the controversial revisions of the law. To this end, I would like to examine the legislative process and interpretation of the restrictions on property rights in Germany and France. In addition, it reviews decisions on property rights of the Constitutional Court of Korea. Through this, it is necessary to derive a clear criterion for infringement of property rights against laws related to property rights restrictions.","PeriodicalId":232789,"journal":{"name":"European Constitutional Law Association","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131746027","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Division and Combination of Right to Defense and Right to Benefit: Focusing on Right to Trial and Right to Vote","authors":"Z. Yi","doi":"10.21592/eucj.2023.41.201","DOIUrl":"https://doi.org/10.21592/eucj.2023.41.201","url":null,"abstract":"The right to defense means the right to demand the omission or cessation of an act of external aggression by the state against the freedoms presupposed thereon. Depending on the type of freedom that is the premise of the right of defence, the state’s external aggression against it also differs in its type. An aggression against freedom of action appears as an aggression that hinders or deters the action; an aggression against freedom of state appears as an aggression that interferes with or intervenes in a certain state, in particular, an aggression against a legal status where a certain legal status is guaranteed appears as an aggression that deprives the legal status. Thus, the right to defense includes requesting the omission or suspension of the imposition of a legal obligation to hinder or deter a specific act, the legal involvement to interfere with or intervene in a specific state, and the legislation depriving a specific legal status. Unlike the right to defense, which can demand negative action from the state, the right to defense is distinct from the right to benefit, which can demand positive action from the state. The positive actions that can be demanded from the state according to these rights to benefit are essentially legislative, and according to the content of these legislations, the types of the right to benefit are classified into protection rights, procedural rights, and social rights. Restrictions on the right to defense that can demand negative actions are made in the form of positive actions, and restrictions on the right to benefit that can demand positive actions are made in the form of negative actions. Therefore, the principle of proportionality, which is a constitutional principle required for the restriction of constitutional rights, is embodied in the principle of prohibition of excessively abundance and the principle of prohibition of excessively deficiency according to the type of restriction on constitutional rights. Both the prohibition of excessively abundance and the prohibition of excessively deficiency contain four parts of the proportionality principle. And the principle of balance of legal interests, which is the core principle of the principle of proportionality, becomes the most essential partial principle while justifying restrictions on constitutional rights when applying the principle of prohibition of excessively abundance or the principle of prohibition of excessively deficiency.","PeriodicalId":232789,"journal":{"name":"European Constitutional Law Association","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133472054","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A constitutional study on the Provisions of Prohibition of marriages between consanguineous couples in civil law: Critical Review of Constitutional Court 2022 Decisions","authors":"Joonbok Lee","doi":"10.21592/eucj.2023.41.475","DOIUrl":"https://doi.org/10.21592/eucj.2023.41.475","url":null,"abstract":"On October 27, 2022, the Constitutional Court made a constitutional decision on the Prohibition of marriage within 8th degree blood relative. But, the provision that regards incestuous marriages as uniformly invalid was decided as unconstitutional. This latest decision marks the first major change. However, since the prohibition of marriage between close relatives within the 8th degree of relationship is still valid, the scope is defined according to the scope of kinship under the civil law without reflecting social and temporal changes or international norms. Of course, I think it is fortunate that the provision that regards incestuous marriages that violate the Civil Act as uniformly invalid is decided as unconstitutional. Perhaps the recent decision of the Constitutional Court is in line with the international trend and is the beginning of a change that can faithfully implement the basic rights of the people. Therefore, this study analyzes the recent Constitutional Court decision to examine the legal and institutional meaning of the prohibition of incest marriage and marriage, and grasps implications through comparison and consideration with foreign legislative examples. And the decision of the Constitutional Court is reviewed in terms of the possibility of violating personality rights and the right to pursue happiness as universal human rights, and the possibility of violating the free marriage partner choice. In addition, including a review of the civil law amendment bill currently pending in the National Assembly, opinions are presented on the direction in which the provisions of the civil law for which the Constitutional Court has issued an order to urge legislation can be reasonably amended.","PeriodicalId":232789,"journal":{"name":"European Constitutional Law Association","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-04-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116185078","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Qualitative improvement of bills through consultation between the legislative branch and the executive branch in the legislative process","authors":"Kwoncheol Lee","doi":"10.21592/eucj.2022.40.341","DOIUrl":"https://doi.org/10.21592/eucj.2022.40.341","url":null,"abstract":"<jats:p />","PeriodicalId":232789,"journal":{"name":"European Constitutional Law Association","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127525563","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Developments of Legislative Impact Analysis in France: with reference to “Youth Impact Clause”","authors":"C. Kwon","doi":"10.21592/eucj.2022.40.1","DOIUrl":"https://doi.org/10.21592/eucj.2022.40.1","url":null,"abstract":"The present paper attempts to deal with the effects of a given legislation in practical as well as academic perspectives, commonly called as legislative impact analysis, or legislative assessment as in case of pilot works in Korea. Yet the law and practice in this particular area differs from nation to nation, as the case of France exemplifies in this article. \u0000It is to be noted that various works on the works relating to the legislative impacts were largely incorporated in an act of the National Assembly in March 2021. That is the Framework Act on Administration which targets the current laws and regulations if necessary to improve the legal system in the administrative field, obviously including the subject matter. On the other hand, France has been conducting legislative evaluation in a reserved manner by stipulating the subject in a broad way, that is in the revised constitution in 2008. \u0000Thus the writer proposes in the present paper to focus on the following two points : First, considering French legislation, legislative procedures, and the relationship between the government and the National Assembly, attempts were made to pinpoint the characteristics and meaning of the impact analysis system and the possible significance. The French impact analysis is limited to the government-submitted legislation. \u0000Therefore it is characterized by the fact that it is prepared directly by the relevant department of the Government that submitted the bill. Criticism has always been targeted for lack of fairness. However, the impact analysis system should be understood not only in the form of government but also in the context of legal system and legislative procedures. In other words, horizontal comparison of the two systems, France and Korea for that matter, is difficult because it has a structural difference from the post-legislative impact analysis, as specified in the Framework Act on Administration in case of Korea. \u0000Second, among the points raised in the discussions on the French impact analysis, frequently pointed areas concern the so-called “Youth Impact Clause” introduced in 2016. In addition to the existing impact analysis method, special attentions were given to young people, and to the basis of the legislative analysis. At the beginning of the implementation of the Youth Impact Assessment System, the Ministry of Youth Affairs did not put forward active an opinion as expected. Above all, the issue was preempted rather by the general observation, such as “today’s youth-future generation” than the specific and technical points in legislation.","PeriodicalId":232789,"journal":{"name":"European Constitutional Law Association","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130239354","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}