Institute for Legal Studies Chonnam National University最新文献

{"title":"The Present Status and Tasks of the Three Labor Rights of Public Officials: With review of the Constitutional Court's decisions at the time of enforcement of ILO Convention No. 87 and No. 98","authors":"Lin Kim","doi":"10.38133/cnulawreview.2022.42.4.249","DOIUrl":"https://doi.org/10.38133/cnulawreview.2022.42.4.249","url":null,"abstract":"The Constitution of Korea has long laid down public officials’ right to independent association, collective bargaining, and collective action (the “Right”). Nevertheless, the Public Officials Union Act (the “POUA”) did not come into force until 2006. Despite the enforcement of the POUA, the Right were not practically guaranteed. Public officials raised the issue of unconstitutionality of the POUA from various perspectives to the Constitutional Court, but the Court defended the protection of the vocational public officials system and ruled that most of them were constitutional. In the process, public officials insisted that the international standards for the RIGHT of the ILO Conventions should be applied for these cases, but the Constitutional Court repeatedly refused to apply them since they were not effective in Korea territory. In other words, the Constitutional Court has established Korean standards that are far from international labor standards. Meanwhile, on April 20, 2022, the ILO No. 87 and No. 98 Conventions finally came into effect in Korea. In line with the enforcement of these Conventions, the National Assembly revised the POUA to expand the scope of public officials' union membership, and introduced a working hours exemption system. However, the provisions under the POUA related to the Right, which the Constitutional Court declared constitutional, will be issues in the future after the fundamental Conventions enters into force. I hope that the Constitutional Court will deeply understand international labor standards and ensure the Right to fit for us.","PeriodicalId":288398,"journal":{"name":"Institute for Legal Studies Chonnam National University","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128575700","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":"Liability for Autonomous Vehicles and Legal Maintenance of Traffic Laws: Focusing on a New Automated Vehicles Act in the UK","authors":"Saeyoung Park","doi":"10.38133/cnulawreview.2022.42.4.143","DOIUrl":"https://doi.org/10.38133/cnulawreview.2022.42.4.143","url":null,"abstract":"Self-driving cars will free humans from driving. Starting with the Level 4 self-driving ADS, is designed to control itself and drive even in emergency circumstances. From now on, the existing concept of a driver in charge of the dynamic driving task(DDT) of driving will be disappeared. The problem of attribution of responsibility for traffic accidents still remains, but the legal situation in Korea has not yet adequately prepared for the subjects or the scope of liability. At this point, the UK's new self-driving car law recommended in 2022 is worth considering. The UK government is investing heavily with the goal of commercializing Level 4 autonomous vehicles by 2025. A number of topics related to autonomous vehicles are dealed with this recommendation. The most remarkable thing in relation to the liability for accidents is that the two subjects of Level 4 autonomous driving vehicles. Depending on whether the person could engage in DDT, it is divided into a user-in-charge and NUIC operator, respectively, and each qualification and responsibility is different. The driver is exempted from driving-related matters in the event of an accident, and the responsibility rests with the manufacturer and operator. For the manufacturer(the developer ASDE) to be indemnified, it would have to be demonstrated by them that there were obviously other causes. It should be sought to fundamental changes in the traffic law system related to the driver's license system, signal violations, and the collection and storage of various traffic information.","PeriodicalId":288398,"journal":{"name":"Institute for Legal Studies Chonnam National University","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127548823","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":"Criteria for Judgment of Fraud in a assignment of Claims","authors":"Dawoon Jung","doi":"10.38133/cnulawreview.2022.42.4.329","DOIUrl":"https://doi.org/10.38133/cnulawreview.2022.42.4.329","url":null,"abstract":"If the debtor who is in excess of debt transfers the debt to a specific creditor, the act of assigning the debt may be a fraudulent act against other general creditors. A clear criterion is needed to determine whether a fraudulent act has been established. First, the primary criterion for judging of fraudulent is whether or not a lack of common collateral, an objective requirement, has been induced or deepened. Since this may be determined differently depending on the type of action, it is necessary to determine for each action type. Even if the lack of common collateral has been objectively aggravated by the assignment of claims, it may be reasonable to deny the fraudulent by taking into account the various circumstances of the debtor. Therefore, it is necessary to secondarily consider the comprehensive factors to determine whether fraudulent acts are established. In particular, in the case of preferential transfer such as the assignment of claims to specific creditors, the degree of fraud according to objective factors cannot be said to be high. Therefore, it is necessary to strictly apply other comprehensive considerations. One of these factors to consider is the recently revised Japanese civil law regulations.","PeriodicalId":288398,"journal":{"name":"Institute for Legal Studies Chonnam National University","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134408955","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 Permissibility of Amnesty, etc. to Cooperators in the Investigation of State Crimes Against Human Rights","authors":"Jae Yoon Kim","doi":"10.38133/cnulawreview.2022.42.4.89","DOIUrl":"https://doi.org/10.38133/cnulawreview.2022.42.4.89","url":null,"abstract":"The concept of ‘Transitional Justice’ is used in relation to how to deal with crimes against humanity or state crimes against humanity rights committed in war or dictatorship after the end of the war or dictatorship. The key tasks of ‘Transitional Justice’ are the achievement of reconciliation･social integration and the pursuit of justice. To achieve these key tasks, the ‘Justice Model’ and the ‘Truth-Reconciliation Model’ can be chosen. The Justice Model focuses on the criminal responsibility of the perpetrator. In this model, the criminal court is the central body and judges serious human rights violations such as genocide, crimes against humanity and state crimes against human rights. The Truth-Reconciliation Model, on the other hand, seeks reconciliation by discovering the truth of serious human rights violations through official government investigations. In this model, the Truth and Reconciliation Commission(TRC) is the central body. At this time, the Truth and Reconciliation Commission pursues the cleansing of individuals, community- building, and consolidation of political change. In this paper, first, it was examined whether there is a need for amnesty, immunity, or mitigation according to the Truth-Reconciliation Model when the perpetrators of state crimes against human rights actively cooperated in the investigation process(Ⅱ). In addition, as a comparative law research method, cases in foreign countries in which amnesty, immunity, or mitigation were implemented or not implemented were reviewed(Ⅲ). And the contents and problems of the reconciliation provisions of Fact-Finding Act on Suspicious Deaths in the Military, the Past History Reorganization Act, and the 5･18 Fact-Finding Act, which were introduced in domestic law, were examined(Ⅳ). Based on these discussions, in the future, when introducing a reconciliation regulation that recognizes amnesty, immunity, or mitigation to cooperators in investigations of state crimes against human rights in Korea, what form and content should be included and specific introduction methods were suggested(Ⅴ).","PeriodicalId":288398,"journal":{"name":"Institute for Legal Studies Chonnam National University","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117140146","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":"Consumer Protection in the Cultural Industries","authors":"Jongmok Park","doi":"10.38133/cnulawreview.2022.42.4.65","DOIUrl":"https://doi.org/10.38133/cnulawreview.2022.42.4.65","url":null,"abstract":"If the contents of a sound source or book, which can be said to be products of the cultural industry, violate the Copyright Act (plagiarism), can the consumer who purchased the product cancel the product purchase contract or claim damages? Wouldn't it be possible to constitute the same legal principles that consumers who purchased products from general industries as they can cancel the contract or claim damages if the purchased product is a violation of the law? Considering the role of consumers in the growth of the cultural industry, it is necessary to recognize their rights as consumers of the cultural industry. We reviewed whether the rights of cultural consumers could be recognized under the current law. As a result of reviewing the provisions of the Framework Act on Consumers, various cultural industry-related laws, copyright laws, and civil laws, Even if copyright violations are admitted, Considering the specificity of consumers of cultural products and the characteristics of the legal structure, it is difficult to find a basis for consumers to cancel contracts or claim damages under the current law. If the current law cannot solve the problem, a policy should be established to allow consumers to exercise their rights.","PeriodicalId":288398,"journal":{"name":"Institute for Legal Studies Chonnam National University","volume":"74 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131711935","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 Development of Judicial Precedents of the Supreme Court on the Interpretation of Definition of the term ‘Farmland’ in Farmland Act and Some Issues Concerned Explanatory and Critical Notes to the Decision of ‘the Supreme Court 2021.8.19. sentence 2020두30665’","authors":"Ji Su Kim","doi":"10.38133/cnulawreview.2022.42.4.211","DOIUrl":"https://doi.org/10.38133/cnulawreview.2022.42.4.211","url":null,"abstract":"This article is aimed to survey the development of judicial precedents of the Supreme Court on the interpretation of definition of the term ‘farmland’ in Farmland Act and give some critical comments to the decision of ‘the Supreme Court 2021. 8. 19. sentence 2020두30665’. The author would like to indicate some issues on definition of the term ‘farmland’ and try to find some possible way out. The 1st chap. is introduction, and the 2nd chap. will look into the purpose of Farmland Act & basic ideology concerning farmland according to stipulated provisions in the text, will indicate the indistinction of meaning of definition of the term ‘farmland’ and its historical development, and try to confirm the tradition of present condition test of ‘farmland’. The 3rd chap. is a main chap. of this article, will survey the development of judicial precedents of the Supreme Court on the interpretation of definition of the term ‘farmland’. Main contents are as follows: judicial decisions on ‘farmland’ or not according to the Farmland Reform Act 1949, decisions which affirm or deny the ‘farmland’ on farmland preservation charges, decisions on unlawful diversion of farmland, and decisions on being ‘farmland’ as a required condition of issuance of qualificationc certificates for acquisition of farmland. The 4th chap. will search the subtle changes of three recent judicial decisions. Main contents as follows: the critical comments on the last decision i.e. ‘the Supreme Court 2021. 8. 19. sentence 2020두30665’, including the details of the case, judgments of first trial & second trial, reversal of the Supreme Court, results of reversal, and author’s critical review on it. The 5th chap. is conclusion of this paper, will point out some important points why men contest at law whether being farmland or not, and suggest some possible alternative ideas.","PeriodicalId":288398,"journal":{"name":"Institute for Legal Studies Chonnam National University","volume":"87 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121472852","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":"Qualification as impeachment evidence of protocol concerning interrogation of a criminal suspect, prepared by a prosecutor","authors":"soo-young Min","doi":"10.38133/cnulawreview.2022.42.4.113","DOIUrl":"https://doi.org/10.38133/cnulawreview.2022.42.4.113","url":null,"abstract":"Article 312 of the criminal procedure Act has been amended. Now the protocol concerning interrogation of a criminal suspect, prepared by a prosecutor is admissible as evidence only when the defendant agrees the contents of his own statement are truthful. However, even if the evidence is not admissible as evidence by the hearsay evidence rule, it can be used for impeachment. In this respect, this study examined whether the suspect-interrogation protocol by prosecutor, which is inadmissible by the hearsay rlue could be used as evidence of impeachment against the defendant's statement. It is stipulated in Article 318-2 of the Criminal Procedure Act that ‘A document or statement otherwise inadmissible as evidence under Articles 312 through 316, shall be admissible, if it is produced to challenge the admissibility of a statement of a criminal defendant or a person other than the criminal defendant at a preparatory hearing or a trial’. According to this, protocol concerning interrogation of a criminal suspect, prepared by prosecutor which is inadmissible by the article 312(1), can be used for impeachment. Also as stipulated in Article 318-2 of the Criminal Procedure Act, not only the witness’s but also the defendant’s statement can be impeached. It may cause some issues about the defendant’s right to remain silent, but the debate over whether the defendant's statement can be impeached or not takes place from a completely different perspective. The defendant has a constitutional right to refuse to state. So, he can be silent. But also he can and should be asked about the statement he did in the courtroom. Impeaching the defedant's statement is helpful for fact-finders to find fact, and it is the way to go the principle of court-oriented procedure.","PeriodicalId":288398,"journal":{"name":"Institute for Legal Studies Chonnam National University","volume":"102 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115175147","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 Internment of Children under the Immigration Control Act and Human Dignity","authors":"Jinseong Kong","doi":"10.38133/cnulawreview.2022.42.3.39","DOIUrl":"https://doi.org/10.38133/cnulawreview.2022.42.3.39","url":null,"abstract":"The Immigration Control Act requires undocumented children subject to a deportation order to be interned until the repatriation is possible. The purpose of this paper is to examine whether the internment of foreign children under the Immigration Control Act violates the human dignity rights under Article 10 of the Constitution. \u0000Since children are still physically and mentally immature and are therefore in a vulnerable position compared to adults, the Constitution Law orders special protection for children. \u0000However, if the internment conditions of a child under Immigration Control are severe enough and are below minimum survival conditions, such internment conditions infringe on the child's human dignity. As a key indicator of the severity of internment conditions, it is possible to consider whether the internment form is appropriate for children, whether the per capita area in a detention room is too narrow for children, and whether outdoor exercise and outdoor activities are guaranteed every day. \u0000In fact, current norms regarding internment in immigration administration do not guarantee that children are interned in detention rooms that are appropriate for them. Opportunities such as outdoor exercise and activities appropriate for children are not guaranteed every day. As a result, children can be interned in closed detention rooms with iron bars with in the same space alongside adults who are strangers to them, and outdoor exercise and activity hours appropriate for their age cannot be guaranteed on a daily basis. \u0000This way, considering the norms on internment in immigration administration that allow children to be subjected to severe internment conditions without considering their vulnerabilities and the severe reality of internment that occurs accordingly, the internment clause for repatriation under the Immigration Control Act seems to treat children as simple objects for immigration administrative. \u0000Therefore, the internment clause under Immigration Control Act is assessed to infringe on the human dignity of a child.","PeriodicalId":288398,"journal":{"name":"Institute for Legal Studies Chonnam National University","volume":"145 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131774500","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":"Prohibition of human trafficking and positive obligations of the EU States: Analysis of the ECtHR case of Rantsev v. Cyprus and Russia","authors":"H. Jun","doi":"10.38133/cnulawreview.2022.42.3.321","DOIUrl":"https://doi.org/10.38133/cnulawreview.2022.42.3.321","url":null,"abstract":"Human trafficking is a widespread global problem that has received increasing attention in recent years. It is considered one of the most serious crimes in today's world. Those affected are often degraded to mere goods for the purpose of economic gain, which represents a serious violation of human rights. This article deals with the extent to which Art. 4 ECHR prohibits human trafficking and which positive obligations result from this for the contracting states. It can be said that a combination of the positive obligations developed by the court from Art. 4 ECHR can probably provide a good basis for effective and appropriate victim protection. Since it was not included in any of the written elements of the crime, it must be assumed that it is to be interpreted as a separate element. The difficulty here lies in the distinction between slavery and human trafficking and the subsumption of a fact under the definition. Particular attention was paid to the positive obligations of the contracting states, which were significantly specified. Despite criticism from the literature that the ECtHR would impose obligations on member states that they had not entered into and had not accepted in any protocol, it can be said that with a view to the development of trafficking in human beings for the future, positive obligations for member states are not unjustified. It is probably difficult to comprehend as a fact and to present it as a concrete norm. Because the problem of treating humans as a means to an end will not disappear easily. Therefore, the positive obligations of the state arises not only for its own citizens but also for the worker from abroad.","PeriodicalId":288398,"journal":{"name":"Institute for Legal Studies Chonnam National University","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128952697","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 Article 6 of the European Convention on Human Rights: The Right to a Fair Trial: Focusing on the European Court of Human Rights' Case on the Recognition and Enforcement of Foreign Judgments","authors":"Hyeong-Seok Lee","doi":"10.38133/cnulawreview.2022.42.3.293","DOIUrl":"https://doi.org/10.38133/cnulawreview.2022.42.3.293","url":null,"abstract":"The European Convention on Human Rights is a document that guarantees human rights by limiting the scope to Europe. In the Convention on Human Rights, various human rights are derived and guaranteed by the interpretation of the European Court of Human Rights as well as human rights under the Convention. Among the human rights guaranteed by the Human Rights Convention, there is a right to trial. The right to a trial is the right to a fair trial, the right to a trial within a reasonable period of Consisted. Recently, as movement between countries has become easier, the right to a trial has become an issue not only in domestic judicial procedures but also in the recognition and enforcement of foreign judgments. The basic purpose of the right to a trial is to obtain relief from the right through a fair and expeditious trial in an independent court for those who want to settle personal disputes and disputes between innocence and innocence of those charged with criminal trials through judicial procedures. The right to receive such a trial has the character of a subjective right, but it can be seen that the state's discretion is wide due to the nature of the state power called judicial power. Due to the nature of the state power of judicial power, there is also a wide room for the discretion of the state. The European Court of Human Rights interprets the right to a trial under the Human Rights Convention more broadly, and recognizes the right to the recognition and execution of foreign judgments as precedents. In this paper, the meaning of the recognition and enforcement of foreign judgments, which have been formed by the precedents of the European Court of Human Rights, and the guarantee procedures and limitations in contracting countries are to be reviewed.","PeriodicalId":288398,"journal":{"name":"Institute for Legal Studies Chonnam National University","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115080282","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}