European Constitutional Law Association最新文献

{"title":"Citizen Participation in Response to the Climate Crisis","authors":"M. Kang","doi":"10.21592/eucj.2022.40.315","DOIUrl":"https://doi.org/10.21592/eucj.2022.40.315","url":null,"abstract":"Climate change or climate crisis, the cause of global warming, is a problem directly related to the fundamental rights stipulated in our Constitution and can be dealt with from the perspective of environmental rights, equality rights, and social rights. More broadly, it can be discussed from the viewpoint of human dignity and value and the right to pursue happiness. In addition, the climate crisis issue can be approached from the perspective of democracy in addition to the aforementioned fundamental rights. \u0000In other words, in responding to the climate crisis, citizens are no longer an object, but a subject to share and solve problems with the state and local governments. Accordingly, the Korean government established the ‘2050 Carbon Neutrality Committee’ in May 2021, composed of related ministries, experts, and civic groups, to respond to the climate crisis that is becoming a global problem. However, it has been criticized in several respects. \u0000Therefore, I think the case of the Climate Civic Council in France, which is recognized as a representative example of citizen participation in responding to the climate crisis in the European Union, is that Korea's Carbon Neutral Citizens Council, which is being criticized as above, will respond better to the climate crisis and promote citizen participation in the future. It is judged that it will be a good reference for forming social trust by properly reflecting the voice.","PeriodicalId":232789,"journal":{"name":"European Constitutional Law Association","volume":"144 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":"116386861","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":"Comparison of preambles to constitutions around the world","authors":"Kuk-Won Jeong","doi":"10.21592/eucj.2022.40.147","DOIUrl":"https://doi.org/10.21592/eucj.2022.40.147","url":null,"abstract":"Preamble to the Constitution refers to a sentence or provision placed before the text of the Constitution, which consists of a part of the Constitutions. Preamble to the Constitution declares the historical origin and the basic principle of constitution, and also declares its constitutional commitment. The purpose of Preamble to the Constitution is to identify the subject and the procedure of Constitutions as well as the motive, purpose and ideology of Constitution showing the identify of Constitutions, but it is not included in the text along with appendix, and is not essential element of written constituions. However, the written constitutions around the world have the preamble. This study targets total 16 countries that have Preamble to the Constitution including our country. What we want to obtain through the comparison of Constitutions is the accurate understanding of practical application of Constitutions, which are the target of comparison, and its ultimate goal is to secure the optimized constitutional normative power by specify the similarity or difference of preamble shown from individual and concrete application of each country. The comparison method of preamble to achieve this goal can be classified into formal aspect and practical aspect. Preamble to the Constitution is positioned in the front of text, so the actual benefit of comparison is not that big. Therefore, the core contents should be identified through practical aspect comparison. In this case, it is important which factor should be based. This study compares and analyzes the contents of preamble to the Constitution based on, first subjects and procedures, second, history and future, third, justice, fourth, diversity, fifth, freedom and equality, sixth, peace and solidarity, and seventh, the Declaration of Federal Constitutions. In our country, whenever there is discussion on constitutional amendment, it is argued that the May 18 Democratization Movement and the June 1987 Struggle should be included in the Preamble to the Constitution. As the level of people’s awareness on Preamble to the Constitution gets higher, for example, there is an attempt to include the things which is difficult to add to the text of Constitution such as respectful treatment to civilian army activity. The comparison of Constitutions largely serves as a useful material for raising the awareness of Constitutions, contributing to the international reunification of Constitutions, and revising Constitutions. This study on the preamble to the Constitution around the world is thought to function as the criteria that can judge the effectiveness whether May 18 Democratization Movement and the June 1987 Struggle, which are being argued that it should be included in the Preamble to the Constitution, has such a value.","PeriodicalId":232789,"journal":{"name":"European Constitutional Law Association","volume":"52 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":"114707831","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 Protection of Fundamental Rights of Children with Health Impairments: Focused on the legislation of hospital schools","authors":"Gun Yee Bae","doi":"10.21592/eucj.2022.40.279","DOIUrl":"https://doi.org/10.21592/eucj.2022.40.279","url":null,"abstract":"Traditionally, expanding the infrastructure to guarantee children’s health right has been under the national responsibility. In addition, how to protect the learning right of children hospitalized for a long time, like paediatric cancer patients, has been recognized as a national project in the educational continuity dimension where the education of children should not stop due to external environments, in order for children’s growth ad development. Hospital school is an educational institution in hospital for the children with health impairments(the students who need to be hospitalized for more than three months due to their chronic diseases, or continue to need medical support like outpatient treatment, and thereby have difficulty with school life and learning). In accordance with ｢Act on Special Education for Persons with Disabilities｣, it is defined as a special school under Office of Education, or a dispatch class of general school(special class). In order to guarantee the learning right of children with health impairments, who should have compulsory education, it is required to recognize the operation of hospital school as an essential national project. Nevertheless, whether to open a hospital school depends on a hospital’s policy, and dispatching a special education teacher to a hospital school relies on the educational finance of a local government. There is a possibility that the children are able to set the required number of school days through distance education in hospital and to complete their curriculum. However, face-to-face class in hospital school makes it possible to provide the individual guidance through interaction with children, which is impossible in distance education, and to serve as the preparation process to return to their original classes after discharge. From the standpoint of child students, it is a very important way to guarantee their learning right. Opening and closing a hospital school should not be determined according to the current hospital policy. Instead, it is required to legislate on hospital school as an essential institution secured for treatment and education at the time when a hospital with a certain wards is open or when a medical institution for children is designated. In accordance with ｢Act on Special Education for Persons with Disabilities｣, an educational institution is classified into a special educational institution(special school and special class) and a special education support center. In the current system, such institutions like hospital school where education is provided in a separate space of medical institution have no classification. From the standpoint of school institutions, hospital school is the class of itinerant education, but is an institution in hospital. For this reason, it is necessary to consider the safety and operation criteria of both hospital and educational institution. To do that, there are limitations in following the system in accordance with ｢Act on Special Educa","PeriodicalId":232789,"journal":{"name":"European Constitutional Law Association","volume":"50 198 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":"125949472","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":"Les caractéristiques de la procédure législative en France","authors":"Hakseon Jeon","doi":"10.21592/eucj.2022.40.39","DOIUrl":"https://doi.org/10.21592/eucj.2022.40.39","url":null,"abstract":"L’initiative des lois appartient au Premier ministre ainsi qu’aux députés et aux sénateurs. Les initiatives du Premier ministre sont appelées ‘projets de loi’, celles des parlementaires sont dénommées ‘propositions de loi’. Les propositions peuvent être déposées par un ou plusieurs députés ou par un ou plusieurs sénateurs, à la condition que leur adoption n’ait pas pour conséquence une diminution des ressources publiques ou la création ou l’aggravation d’une charge publique. Les projets de loi de finances et les projets de loi de financement de la sécurité sociale doivent être déposés d’abord à l’Assemblée nationale ; à l’inverse, les lois ayant pour principal objet l’organisation des collectivités territoriales sont soumises en premier lieu au Sénat. \u0000Le Conseil constitutionnel est notamment chargé de contrôler la conformité des lois votées par le Parlement à la Constitution. Ce contrôle a lieu d’office pour les lois dites organiques, à savoir les lois expressément visées comme telles par la Constitution et qui ont pour objet d’appliquer des dispositions constitutionnelles. Pour les autres lois, dites ordinaires, ce contrôle n’est effectué qu’à la demande de certaines autorités : le Président de la République, le Premier ministre, le Président du Sénat, le Président de l’Assemblée nationale et, soixante députés ou soixante sénateurs. \u0000La Constitution française prévoit le référendum pour l'adoption d'un projet de loi. Le Président de la République, sur proposition du Gouvernement pendant la durée des sessions ou sur proposition conjointe des deux assemblées, publiées au Journal officiel, peut soumettre au référendum tout projet de loi portant sur l'organisation des pouvoirs publics, sur des réformes relatives à la politique économique, sociale ou environnementale de la nation et aux services publics qui y concourent, ou tendant à autoriser la ratification d'un traité qui, sans être contraire à la Constitution, aurait des incidences sur le fonctionnement des institutions. \u0000Le référendum d’initiative partagée (RIP) est une forme particulière du processus législatif français, associant le corps électoral à une proposition de loi (c’est-à-dire un texte législatif déposé par un membre du Parlement), via un recueil de soutiens. Des seuils d’un cinquième des membres du Parlement dans un premier temps, puis d’un dixième des électeurs sont nécessaires, afin d’initier un examen parlementaire, ou à défaut un référendum.","PeriodicalId":232789,"journal":{"name":"European Constitutional Law Association","volume":"77 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":"125382808","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 research on historical changes and characteristics of presidential election system","authors":"Do-Hyub Kim","doi":"10.21592/eucj.2022.40.109","DOIUrl":"https://doi.org/10.21592/eucj.2022.40.109","url":null,"abstract":"Depending on whether it is a presidential system or a parliamentary system, there may be differences in the electoral system. However, it is clear that the ultimate purpose of elections is the realization of democracy. \u0000Therefore, democracy can be said to depend on the electoral system, and the election of public officials based on the correct electoral system is very important. \u0000Among these public office elections, the presidential election in particular is more important than other elections. \u0000For this reason, this study, which examines the historical change process of the presidential election system and the peculiarities of the times, is very meaningful. \u0000As a result, the early presidential system was changed to a parliamentary system of government, and then the parliamentary system of government was changed to a presidential system. In addition, the presidential system also repeated the indirect and direct election systems. \u0000For this reason, the will of the person in power played an important role, which can be seen as a violation of democracy. \u0000In the process of changing the presidential election system several times, the age of those who can vote has been reduced from 21 to 18, political conflict between regions has increased, and the election day has been set on Wednesday. And the election deposit was reduced from 500 million won to 300 million won. \u0000I hope that moreresearch on the electoral system will lead to more democratic elections.","PeriodicalId":232789,"journal":{"name":"European Constitutional Law Association","volume":"253 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":"116393501","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 Hanbok Promotion Bills","authors":"Wan-Sik Hong","doi":"10.21592/eucj.2022.40.175","DOIUrl":"https://doi.org/10.21592/eucj.2022.40.175","url":null,"abstract":"The hanbok is an umbrella term which is used to refer to traditional ethnic Korean clothes. According to the Cultural Heritage Protection Act, the cultural heritage means artificially or naturally formed national, racial, or world heritage of outstanding historic, artistic, academic, or scenic value, which is classified into the tangible cultural heritage and the intangible cultural heritage. The “hanbok”, Korean clothing is a very significant element of the Korean cultural heritage and tangible and intangible cultural heritage. The ancient hanbok consisted of a jeogori(top), baji(pants), chima(skirt), and the po(coat). These basic structural features of the hanbok remains unchanged to this day. However, modrenized hanbok is patterned after the hanbok worn in the Joseon dynasty. Koreans wear hanbok for formal or semi-formal occasions and events such as weddings, festivals, celebrations, and ceremonies these days. In 1996, the Ministry of Culture, Sports and Tourism established “Hanbok Day” to encourage to wear the hanbok. In 2022, the Ministry of Culture, Sports and Tourism designated “Hanbok Life” as a national intangible cultural heritage. The Hanbok Promotion Center is one department of the Korea Craft and Design Foundation (KCDF). But for the more positive promotion of the hanbok should the Hanbok Promotion Center be the independent Foundation. And more important thing is that the Hanbok Promotion Act should be enacted.","PeriodicalId":232789,"journal":{"name":"European Constitutional Law Association","volume":"1 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":"130438576","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":"Discussion on the right to use the name trademark: Focusing on trademark disputes between idol groups and their former agencies","authors":"D. Lee, Sunki Hong","doi":"10.21592/eucj.2022.40.213","DOIUrl":"https://doi.org/10.21592/eucj.2022.40.213","url":null,"abstract":"Currently, a big wave of Korean culture is heating up the world, which indeed contributes to growing economy of Korea. In addition to the income earned from sales of music records and movies, the marketing business using the names of celebrities also forms a big size of market. As a result, there were often legal disputes arising from the rights of trademarks including the stage name or group name of celebrities. In particular, just before the end of the exclusive contract, the agency registered the celebrity's name as a trademark, thereby provoking a legal dispute between the former agency and the celebrities. In this study, we discussed whom the trademark rights, including celebrities’ names, should belong to. In the first session, we introduced two examples for disputes in regard to the trademarks including the idol group names. To express our critical opinions on this, it was discussed that the current trademark law could infringe on the personal rights guaranteed by the Constitution. Furthermore, our opinions to reasonably compromise these conflicts between the legal rights were proposed as follows. First of all, we suggest that it is necessary to legislate the publicity right, so that the personal right of celebrities can be protected as the property right is. Because the process of enacting a new law is very difficult, we proposed another idea to revise the current law. Thus, we noted that some provisions of the Trademark Act and the Unfair Competition Prevention Act are needed to be revised for preventing the infringement of the personal rights, and also proposed our opinions on how to revise these provisions.","PeriodicalId":232789,"journal":{"name":"European Constitutional Law Association","volume":"12 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":"131908406","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":"General Principles of the European Court of Human Rights on the Limitation of Freedom of Assembly: Focusing on the Navalnyy and Gunko v. Russia case","authors":"Inhwa Choi","doi":"10.21592/eucj.2022.40.245","DOIUrl":"https://doi.org/10.21592/eucj.2022.40.245","url":null,"abstract":"Restrictions on freedom of assembly should be proportional and the least intrusive means to achieve a legitimate purpose should be given priority. Freedom of assembly should be enjoyed as freely as possible. Freedom of political assembly in particular should be strongly protected. Freedom of assembly also has the meaning of communicating information with each other and forming mutual intentions by allowing others to enter the public sphere. It also has the function of protecting minorities and opposition parties that cannot be represented by the general public's will. However, freedom of assembly presupposes a duty of acceptance, such as having a problem with the right to move and colliding with the interests of others. \u0000The state has an active obligation to actively protect peaceful assembly and this active obligation requires the state to protect against individuals or groups who attempt to interfere or block participants in peaceful assembly. The state is also obligated to guarantee the basic rights of those who did not participate in the assembly. \u0000The right to the freedom of peaceful assembly under the European Convention on Human Rights is also a fundamental right of democratic society. Among the justification requirements for the European Court of Human Rights' restrictions on freedom of assembly, ‘necessary in a democratic society’ is a matter of profit sentence as a review based on the principle of proportion. Therefore, it can be seen that the European Court of Human Rights examined whether the basis for the judgment was appropriate and sufficient for the claimant's claim for arrest and conviction for administrative crimes. The The requirement of ‘necessary in a democratic society’ is a ‘contextual approach’, which requires careful argument in that it is possible to make an appropriate judgment only after considering the overall contents such as content, context, and proportionality of sentence along with the submitted evidence. \u0000Freedom of assembly is a basic right that is important for realizing democracy and should be guaranteed as much as possible because various intentions of the people are expressed. In the proportionality examination of whether restrictions on freedom of assembly are necessary for a democratic society, as shown in the case of Navalnyy and Gunko v. Russia, European Court of Human Rights should examine whether these restrictions are in response to strong social needs, and whether they are appropriate and sufficient.","PeriodicalId":232789,"journal":{"name":"European Constitutional Law Association","volume":"48 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":"132932550","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 Directness Requirement in Constitutional Complaint","authors":"Sooin Yun","doi":"10.21592/eucj.2022.40.371","DOIUrl":"https://doi.org/10.21592/eucj.2022.40.371","url":null,"abstract":"The directness requirements required in relation to constitutional complaints which are legal norms, are conceptually separate from the exhaustion of other remedies that require prior relief procedures, but in Korea, regulatory control is divided into courts and the Constitutional Court. \u0000The conventional Constitutional Court's decision has recognized exceptions to the directness requirement based on whether or not the executive action is discretionary, since the directness of the base law is exceptionally recognized if the execution action is a binding action. However, the Constitutional Court has recently been confused about the criteria and scope of exceptions to directness requirements, such as acknowledging the directness of the grounded law based on expectability, if a specific enforcement act is scheduled, that is, even if it is uniquely stipulated. \u0000The directness requirement in the petition is not a prestigious requirement in the Constitution and Constitutional Court Act, but it is a legal requirement to effectively realization the basic rights of the people by separating functional power between the court and the Constitutional Court. Therefore, the Constitutional Court should consider the ideology of guaranteeing the basic rights of the people in setting the requirements for recognition of directness, but should present more predictable and clear standards that can harmonize the efficiency of the constitutional trial with the people's right to trial.","PeriodicalId":232789,"journal":{"name":"European Constitutional Law Association","volume":"31 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":"134153716","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":"German Approach to the Energy Crisis Resulting from Russia’s War on Ukraine Through “Treuhandverwaltung”","authors":"Jae-Hoon Lee","doi":"10.21592/eucj.2022.40.73","DOIUrl":"https://doi.org/10.21592/eucj.2022.40.73","url":null,"abstract":"The Ukrainian-Russian War caused an energy crisis in Germany. Germany imports large amounts of natural gas from Russia. Germany's dependence on Russia for natural gas supply has been a long-standing situation. For Germany, this situation was not a big problem before the Ukrainian-Russian War. However, after the Ukrainian-Russian War, the Western Bloc imposed economic sanctions against Russia. And in response, Russia also started sanctions against the Western Bloc. Russia used natural gas as a weapon to pressure Germany, but this was not limited to simply reducing or banning exports. Russia intended to liquidate Gazprom Germania GmbH, a German company belonging to the Gazprom Group. If this company went liquidated, Germany's natural gas supply and demand would be seriously disrupted, so Germany implemented trust management as an administrative measure to prevent liquidation of this company. The purpose of this paper is to review Germany's response to the energy crisis caused by the Ukraine-Russia war by examining specific cases and individual legal systems of Germany's trust management system.","PeriodicalId":232789,"journal":{"name":"European Constitutional Law Association","volume":"5 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":"126111152","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}