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재산권의 사회구속성과 공용수용의 체계에 대한 검토 - 소위 분리이론 의 한국한법상 수용에 대한 평가를 중심으로 -
김문현(Kim Moon-Hyun) 한국공법학회 2004 公法硏究 Vol.32 No.4
Recently the Korean Constitutional Court had made some decisions which are basically founded on 'Trennungstheorie.' Trennungstheorie is originated from the German Constitutional Court's decision which was made on the case so called 'Nassauskiesung.'Trennungstheorie Insists that 'lnhalts- und Schrankenbestimmung' and 'Enteignung' are different institution in nature. According to Trennungstheorie, 'Inhalts- und Schrankenbestimmung is general and abstract prescription about property which made by the National Assembly, but 'Enteignung' means deprivation of one's property which is prescribed in 'lnhalts- und Schrankenbestimmung.'As Trennungstheorie insists, the contents and limits of property schould be prescribed by the National Assembly, and the way and range of compenstion schould be also prescribed not by courts but by the National Assembly And only the Constitutional Court has the power to decide the law which is unconstitutional because of lack of compensation clause unconstitutional I also agree with the indication of Trennungstheorie that the guarantee of property means 'Bestandsgarantie.'But I don't agree with Trennungstheorie on some points of view. There are some differences between the Korean Constitution and the German Grundgesetz. The concept of formal 'Enteignung' cannot be accepted m the Korean Constitution And I think Art 23.Ⅲ does not mean 'Junktimklausel.' When something like 'Enteignung' is prescribed for public interests by a law which lacks compensation clause, it schould not be decided unconstitutional because of lack of compensation clause.
김문현(Kim Moon-Hyun) 한국공법학회 2005 公法硏究 Vol.33 No.4
Nowadays the Constitutional Court has become ‘the Stormcenter’ in political controversies in Korea. But it does not have established the levels of scrutiny yet. Sometimes it applied strict scrutiny to decide the constitutionality of the laws that restricted one's economic liberties. On the contrary it allowed a wide scope of discretions of the Legislations that were concerned with freedom of conscience.There may be disputes about whether the Constitutional Court should adopt the levels of scrutiny or a ‘sliding scale’ approach. I think it is necessary to adopt the levels of scrutiny mainly because to reconcile ‘Verfassungsgerichtsbarkeit’ with representative democracy. As J. Ely said,¹) in a representative democracy value determinations are to be made by the Representatives who are elected by the people in principle. The Constitutional Court may intervene when it is necessary to correct failings of the majoritarian political process and to protect freedom of minority by applying strict scrutiny.Freedoms in spiritual sphere, especially freedom of expression are concerned with political process. And freedom of conscience and freedom of religion are for the protection of freedoms of minority groups. The Constitutional Court should apply strict scrutiny when the constitutionalities of laws that are concerned with freedoms in spiritual sphere are challenged.
김문현 한국외국어대학교 지식출판콘텐츠원 글로벌경영연구소 2010 글로벌경영연구 = Journal of global business research Vol.22 No.2
The strength of Consolidated Tax Return is that a tax burden is not influenced by the types of an organization. The difference of consolidated objects between consolidated financial statements and consolidated tax return causes some complains at a practical level. The difference is unavoidable since these two systems have different purposes. This study aims to properly understand what Consolidated Tax Return is, and to review Korean Consolidated Tax Return. Korean Consolidated Tax Return applies only to the case of holding 100% share, which is not common in reality. Although aiming to prevent tax avoidance, it has limitations to be applied to a majority of corporations at a practical level. As seen in the cases of other countries, it is necessary to consider the share ratio lower than 100%.