행정내부규율사항론(行政內部規律事項論)

이상천 ( Sang Cheon Lee ) 단국대학교 법학연구소 2010 법학논총 Vol.34 No.2

`Inner-Autonomous Items in Administration` has not had so much spotlight in Administrative Law. There have been no so deep study on it. The traditional study on Special Power Relations has not been discussed under the premise of the conception, `Inner-Autonomous Items in Administration`. It has been treated only as a kind of conception of results. Thus it has not taken a leading role in Administrative Law and has had little recognitions. But We should deduce the conception of items `Inner-Autonomous Items in Administration` from the view point of the whole legal order and by utilizing the conception of `Inner-Autonomous Items in Administration` we should take the conception. Thus we should study the concerned parts of Administration Law and make use of the theory on it to access administrative law. The way of recognizing it in functional way helps us solve the unsolved problems easily. The `Inner-Autonomous Items in Administration` is the core of administration. The study of `Inner-Autonomous Items in Administration` helps us find out the substance of Administration and by that analyse it more functionally. It is another way of access to the Administrative Law.

도시생태현황(Biotope등급)에 대한 公法的 檢討

李相千(Lee, Sang-Cheon) 한국비교공법학회 2016 공법학연구 Vol.17 No.2

공법 : 독도(獨島)에 대한 법제간(法制間) 융합적(融合的) 연구(硏究)

이상천 ( Sang Cheon Lee ) 한양대학교 법학연구소 2010 법학논총 Vol.27 No.2

Superficially, It was the fundamental basic theory of Kim Dae Joong`s government that the excessive strong doctrine for Dok-Do would hurt Korea`s interest in the disfutes surrounding the islands on WesternㆍSouthern Seas and result in damage of Korea in general. Korean government is still unwilling to argue for the positive policy for Dok-Do. The above reason can`t be answered for having rushed `New Agreement on Fisheries between the Republic of Korea and Japan` through National Parliament. Would it have been the compensation for Japan`s support in the time of so-called Korea`s IMF situation? I don`t know the true reason of it. It is true that we have given way to Japan too much through `New Agreement on Fisheries between the Republic of Korea and Japan`, and the economic distribution criteria in `medium waters` surrounding Dok-Do by the above agreement would be fixed forever. Nevertheless, Japan will never give up the argument of Japan` legal right for Dok-Do. If once the argument is transferred to the international judicial court in some balance of international powers and is sentenced to the advantage of Japan, we could lose even the control of medium waters. By this reason, we would know the accurate reason of the motive of `New Agreement on Fisheries between the Republic of Korea and Japan`. Japan would get more and more from Korea by only arguing for Dok-Do. As time goes by, Japan would try to get more from Korea in concern with Dok-Do. We could perceive Japan`s purpose toward Dok-Do during IMF situation. Even though they don`t succeed in getting Dok-Do, it wouldn`t hurt their interests. For they have no legal position about Dok-Do originally. We need the positive confrontation for Dok-Do against Japan. `New Agreement on Fisheries between the Republic of Korea and Japan` should be abolished gradually and nullified entirely at last. We should preserve the positive insistence that Dok-Do belongs to Korea, and it can command its own continental shelves and EEZ. The above insistence would never result in the damage of Korea` side even in consideration of the islands on Western·Southern Seas. Dok-Do is quite different from the other islands on Western·Southern Seas in size and purpose and so on. Thus Dok-Do takes quite different legal position in United Nations Convention on the Law of the Sea. We shouldn`t disregard Dok-Do as only simple `rocks`. The thought of getting interests from doing so is so naive one. Japan reconstructed Okinodorisima which is just only small `rocks`, and insists its continental shelves and EEZ. The low attitude about Dok-Do doesn`t suits to Dok-Do, and it is not reasonable. We need strong and positive policy about Dok-Do. To achieve the above goal, we should achieve the effective control over Dok-Do and need the small, but strong, efficient, professional governmental organ which is based on law of Parliament.

통일한국의 토지소유제도론

李相千(Lee, Sang-Cheon) 동아대학교 법학연구소 2015 東亞法學 Vol.- No.67

통일한국의 토지소유제도론으로는 북한내 몰수토지에 대한 원상회복·보상론과 바람직한 토지소유형태론이 있다. 북한내 몰수토지에 대한 원상회복·보상론과 관련하여서는 독일 판례의 남북한헌법질서에로의 발전적 응용이 필요할 것이다. 보상론에 있어서는 원칙적으로 북한사회를 인정하되 개인의 재산권 보장의 문제까지 덮을 일은 아니고 보편성을 가진 우리의 헌법정신에 비추어 비례의 원칙에 합당한 조치는 있어야 할 것이다. 독일 기본법과 우리의 헌법의 효력범위에 관련된 규정상 차이는 통일한국이 북한에 실시할 토지소유제도론에 반영되어야 할 것으로 구체적으로는 우리 헌법의 효력범위가 북한에도 상시적으로 미친다고 보아야 하는 관계상 북한 토지개혁으로 인한 보상조치가 좀 더 적극적으로 필요하다고 하게 될 것이다. 구체적으로는 농지에 대해서는 토지개혁준용설을 근거로 한 보상이 합리적이고, 국유화된 산림지·도시토지에 관하여는 보상이나 국토개발과 더불어 제자리대토를 고집하지 않는 대물보상 등의 방법을 혼용한 처리가 타당할 것이다. 토지소유형태론에 있어서는 이미 성공을 거둔 남한의 토지사유제도를 북한에 이식하는 방향이어야 할 것인데 그 근거는 첫째, 우리 헌법상 자유시장 경제질서를 근간으로 하고 있는 헌법의 효력이 한반도 및 부속도서에 미치고 북한의 파탄난 경제체제에서 취할 가치를 찾아볼 수 없는 이상 보편성을 띤 남한의 헌법적 가치를 전제로 남한의 토지사유제를 바꾸지 않는 이상 통일한국으로서의 북한지역에도 토지사유제는 실시되지 않을 수 없는 것이고, 둘째, 현실론적으로 남한은 토지사유제를 바탕으로 한강의 기적을 이루었고 다소 문제가 되는 단점은 통제할 여력을 갖추었기에 다른 방안으로 토지사유제를 흔들 것이 아니며, 셋째, 토지사유제만이 자본주의와 부합된다고 할 것은 아니나, 적어도 자원의 최적배분을 시장의 손에 맡기자는 그 정신에 가장 철저한 것으로 그로 인한 문제점은 보완 수정할 것이지 검증된 토지사유제를 흔들 것이 아니라 낙후된 북한경제를 위하여 토지사유제가 제 기능을 하게 할 필요가 있고, 넷째, 토지소유제도는 사실 이념적 대립에 가장 영향받기 쉬운 理念論親和的개념으로 통일한국에 이르러서는 북한주민들의 주장까지 감안할 때 자본주의와 공산주의의 이념적 대립으로 치환되는 사태가 생길지도 몰라 남한의 토지사유제도를 통일한국의 지향점으로 삼아 통일을 수습한다고하는 방향설정이 필요하다는 점 등을 들 수 있다. In concern with controversial compensation, there is a view that no compensation is needed for those who left the North Korea, but such a compensation according to the principle of proportionality would be needed for them. By that the Unified Korea could be called ‘nation by rule of law’ There are several patterns in concerned with land ownership system, which are called ‘land public ownership system’, ‘land public lease system’, ‘land-value public ownership system’ etc. In concern with land ownership system as formation of land ownership pattern, the private ownership system of South Korea should be applied to the North Area. The base of the above opinion is as following. Firstly, the Unified Korea should not stand in the middle of both sides in view of land ownership pattern. South Korea have strong stance on its private ownership system. The middle stance would be very dangerous to swing the Unified Korea. It would make he Unified Korea fall tinto confusion. Secondly, the private ownership system should be called as core of capitalism. A lot of theories have been developed around it. To continue the economic development after unification of Korea, the private ownership system should have firm stance on the Unified Korea of future. Thirdly, the South and the North should have same land ownership system in time of the Unified Korea, and never have its own different land ownership system each other. Thus the North should have the private ownership system. If the North and the South have its own land ownership system each other differently, it could lead to the economic confusion and delay the economic prosperity of the Unified Korea. Fourthly, there is a difference between constitutional law of Deutchland and that of S. Korea. It should be reflected to the realistic compensation by the Unified Korea. In concrete, the compensation by the Unified Korea is more needed for the original land owners than in case of Deutchland.

國家賠償法 제2조 제1항의 立法論上 問題點

이상천(Lee Sang-Cheon) 행정법이론실무학회 2010 행정법연구 Vol.- No.26

According to the present State Compensation Act Article 2(1), the definition of 'private persons entrusted with public duties' falls within the 'public officials'. Thus the 'private persons entrusted with public duties' take no civil responsibilities against both the government's and the victims' side as far as without purpose or gross negligence by the above Act Article 2(3). But the 'private persons entrusted with public duties' which has independence on organization and operation should take the civil responsibilities for their prvious deeds. Just the principle of liability with fault should be adapted for their deeds. If not so, it means the violation of equity, and it leads to the government's financial overload, and the reduction of carefulness to prevent accidents. For the above reasons, the principle of liability with fault should be adapted widely even in the area of 'private persons entrusted with public duties'. Firstly, the 'private persons entrusted with public duties' in the above 2(1) means the ones which has independence of low degree below average in relevance with the government. The ones which has independence of high degree doesn't go into it on the above 2(1). The ones which has independence of comparatively high degree from the government should be ruled by the principle of joint-malfeasance liabilities if possible. And in the cases as against the highly independed ones the principle of joint-malfeasance liabilities should be applied as far as it goes. Even though in the above cases the clauses of 'State Compensation Act' should be applied, it could be interpreted that the 'private persons entrusted with public duties' should answer for what they had done regardless of gross negligence or not. Secondly, for the intention of legistlation according to the legal view which the court and academic circles went after, the expression of 'private persons entrusted with public duties' is inadequate. The expression of 'the private persons who could be measured as entered into administrative organs, in concrete cases, entrusted with public duties' would have been better for that meaning. Thirdly, However if the 'private persons entrusted with public duties' had no assets to pay for their liabilities to the errors, the victims couldn't be saved. Thus it is recommended that the legal steps making up the shortage of their paying abilities should be taken. In contracting of trusting public services, the way of liabilities apportionment should be fixed and it is recommended that the above private persons should take out a policy on the liability for what they did. The matter of gross negligence or not is not the one of scale of the compensation sum. The size of compensation sum doesn't go with the degree of negligence. Even though the 'private persons entrusted with public duties' committed a slight error, the size of government's compensation sum could be gross. The expression that the private persons should be free from liabilities regardless of the degree of negligence would overload the State and local government's finance. Finally, 'State Compensation Act Article 2(1)' should be revised.

국내 벤처의 경영성과 영향요인 비교 분석에 관한 실증연구

이상천(Sang Cheon Lee),배성문(Sung Moon Bae),고봉상(Bong Sang Go) 한국전자거래학회 2008 한국전자거래학회지 Vol.13 No.4

본 연구는 국내 벤처기업의 경영성과를 결정하는 요인들을 통합된 연구 틀 안에서 규명해보고자 하는 목적으로 실시되었다. 이를 위하여 창업자/팀, 조직/자원, 전략/창업과정, 산업환경, 지원시스템을 경영성과 영향요인으로 정의하였으며 영역별 측정변수를 독립변수로, 경영성과를 종속변수로 하는 벤처 경영성과 통합 모형을 구축하고, 우수벤처와 열등벤처의 경영성과 영향요인을 실증적으로 검증하였다. 분석 결과, 우수기업의 경우 창업자 자신의 산업전문능력과 시장규모의 확대가 경영성과에 더 민감한 요인으로 작용하고 있으며, 열등기업의 경우 자원조달능력 및 경영 전략 역량이 민감한 요인으로 나타났다. 또한 우수기업과 열등기업을 나누는 핵심요인은 창업자의 능력 및 정부정책의 일치성으로 나타났다. 본 연구 결과는 표본수의 부족, 측정 척도의 미비 등 실증 연구의 한계를 가지고 있지만 통합된 연구 틀 안에서 우수 벤처기업의 핵심 성공 요인을 제시하는데 그 의미가 있다. The purpose of this study is to identify the determinants of new venture performance in the view of integrated research framework and to investigate key determinants of superior and inferior ventures. We propose the integrated new ventures performance model which is composed of entrepreneur, organization/resources, industrial environment, strategy/foundation process and availability of supporting systems as corresponding variables to new ventures performance. The superior venture performance is affected mainly by entrepreneur’s managerial ability and industry expertise, but the inferior by resources and management strategy. Though this study has limitation of small sample, limited questionnaire and performance measure, it has contribution of identifying key determinants of new venture performance with the integrated frame of study.

DUSTs OFDM의 성능분석

이상천(Lee Sang Cheon) 한국통신학회 2006 한국통신학회 학술대회논문집 Vol.2006 No.7

「법률상(法律上) 이익(利益)」개념의 한계(限界)

이상천 ( Lee Sang-cheon ) 한국외국어대학교 법학연구소 2010 외법논집 Vol.34 No.1

The definition of 'interest in law' has been formed as material subjective right to the administration, and has been projected onto the laws on the litigation and trial of administrative disputes. Thus, it is apprehended as in side of material law or as in side of laws on the litigation and trial of administrative disputes. Perhaps the above way of apprehension will be lasting afterwards. The 'interest in law' has been in position for the status of private individual to administration. The theory of interest in law will be ever improved till the basic human rights be contained within interest in law. But it is doubtful that the present system of administrative relief will be lasting long. For the theory of interest in law itself is blocking the advancement of positive administrative relief and has contradictory legal logic in itself which is that the legistlation takes almost all the private interests into consideration. Actually, it's not true. The law is not competent in all sides. The theory of interest in law insists that the legal rights shoud be based on the legistlation of the assembly, which means that the assembly dicides the zone of legal interests by discretion. We call it legistlative discretion. The theory of interest in law is law-centered, i.e. legistlative descretion-centered definition. It is self-contradicting by containing some basic human rights into itself. Thus, it is not proper or reasonable legistlation that one who has interest in law has standing on the judicial litigation and administrative trial of administrative disputes. Someday 'interest in law' will be alternated with the definition of 'valuable interest worth protecting in law' under the system of administrative relief in the center of which the basic human rights exist. These ongoing controversies on the zone of protection for private individuals are just only the way of thinking about the basic human rights by constitutional law. We had come from the world of 'right', have stayed too long at the world of 'interest in law', and will be in the world of 'value'. It is just the time that we should start the rearrangement of the system of administrative relief. In the heart of the new one will be the basic human rights by constitutional law.

道路建設(도로건설)로 인한 被害(피해)의 法(법)的 救濟(구제)를 위한 小考(소고)

이상천 ( Sang Cheon Lee ) 한양대학교 법학연구소 2014 법학논총 Vol.31 No.2

Road building is destined to take the following steps. Which is enumerated in order as step of basic planning of road building, step of road line decision, step of road zoning decision, step of taking road sites to road zoning decision, step of construction of road building, and finally step of declaration of using road. It is true that road works sometimes positively and sometimes negatively. The construction of road building hurts our living environment. Thus we need the legal way of deterring road construction according to every step during building road. Firstly, it is a way of deterring road construction that every decision to the step of road building situation should be tested thoroughly. By that the road building could not go ahead. The above administrative decisions have the character of discretion, but something which should be taken into consideration in making decision should be taken into consideration and vice versa. If not so, we should say that the decision have the failure in procedure and it can be cancelled via objection. Secondly, it matters which of the two would be suitable for deterring road construction, ‘suspension of execution’ or ‘provisional injunction’. When road zoning decision precedes construction of road building, it would be legally impossible to block road building entirely. For the effect of administrative act should not be deterred by way of civil law. Meanwhile we could apply for provisional injunction due to the problems occurred during road building, which doesn’t hurt the effect of administrative act. But in case of constructing road before road zoning decision, the deed of road building is purely just an action in fact by civil law but an administrative act. So we should say that it is entirely suitable for provisional injunction. In this case the construction of road building should be thoroughly tested because it didn’t pass the gate of scaling between public interests and private interests. Thus unlikely in common cases ‘onus probandi’ should be converted to the authority concerned in that case. The authority concerned should have the burden of proof that the road building doesn’t hurt civil’s private interests in natural circumstances or living circumstances. And the public interests due to deterring the road building should be included to the interests which is protected by provisional injunction. In the end, it is necessary to take preventive action by legislation. It is highly recommended that every step according to administrative works should be taken to control administration more efficiently. By taking preventive action by legislation, it could spread its application area to the sphere of action in fact like road building. By that it contributes to having the authority concerned take serious action in planning to construct roads etc. And by that it contributes to enhancing the realization of the public interests and civil interests etc.

부진정일부취소소송의 성립가능성론에 대한 비판적 고찰

이상천 ( Sang Cheon Lee ) 이화여자대학교 법학연구소 2013 法學論集 Vol.17 No.3

In my thought, the crititical discrimination of burden and ‘the others except burden’ would be wrong. Generally the case law and most of the theories say that only ‘burden’ has a different being seperated from the main administrative act and ‘the other supplementary clauses except burden’ belong to that. Under this mistaken premises, the case law and most of the theories have spread widely. The concept of litigation of impure partial cancellation appeared for control of supplementary clause against reasonability. The mistaken ‘dogmatik’ needs another wrong ‘dogmatik’ to support the previous one. Consequentially, we should treat ‘administrative act with supplementary clause’ as total one act and couldn`t separate supplementary clause from the main administrative act. Reluctantly, the threories thought out the so-called ‘litigation of impure partial cancellation’ to be able to control only just the supplementary clause without touching the main administrative act. In general opinion, ‘the other supplementary clauses except burden’ have no character of disposal. Thus they couldn`t be treated legally as an object of lawsuit. For the object with no character of disposal couldn`t be an object of lawsuit and be written as the text of judgment. Thus the theory of litigation of impure partial cancellation has the error in itself that an object with no character of disposal is taken as the text of judgment. To avoid that criticism, it says that the total ‘administrative act with supplementary clause’ is under legal trial and it has no problem in itself by that. But the expression ‘the total administrative act with supplementary clause is being taken under the legal trial’ doesn`t go with all the theories on the object of lawsuit in administrative litigation. If we try to cancell only just the supplementary clause by the expression of the text of judgment, it would be always just the ‘litigation of pure partial cancellation’, and it shouldn`t differ from that. If ‘the other supplementary clauses except burden’ have no character of disposal, we should say that we could not take them as an elligible object of lawsuit. Thus the theory of litigation of impure partial cancellation couldn`t solve the problem of character of disposal. In connection with the matter of character of disposal, this thesis says only that the theory of litigation of impure partial cancellation couldn`t be taken legally. But it doesn`t mean that the theory of litigation of pure partial cancellation couldn`t be taken legally. On the basis of recognizing character of disposal to every supplementary clause, we could take the litigation of pure partial cancellation for all supplementary clauses.