중국 법학교육과 법조인양성체제에 관한 연구

강효백(Kang, Hyo-Baik) 경희법학연구소 2005 경희법학 Vol.40 No.2

China has enforced a Juris Master (JM) program which is slightly changed to their actual situation by inducing the US Law School since 1996 as a link to judicial service market opening, business law specialist training, and reforming judicial systems depending on preparations for joining the WTO. Universities that first received the approval for establishing the JM program increased every year from 8 schools including Peking University and Renmin University of China. Now at this point of the end of 2005, there are almost 50 schools in all. However, unlike the US, China maintains the department of law in the university course, and continues the masters, doctor s degree course of law in the graduate school course for training scientific juridical specialists separate from the JM which entrance qualification is given only to those that did not major in law. Also, unlike Japan or Korea which abolishes bar examination as law schools are induced, the country is newly creating and enforcing an exam combining attorney, judicial officer, and prosecutor exams in 2002. You must pass the exam to become a starting attorney, judicial officer or prosecutor, but laws were made that one must obtain over a master s degree in law in order to be promoted to over middle class judicial officers. So a coexistence and connection between the JM and bar examination were created. China s precedent of developing mutually contradicted, overlapped law education and judicial officer training system as pluralism of policies is considered to be helpful to Korea which is about to induce, almost copy Japan s law school system and even procedures of changing to law schools, number of exclusive instructors, law school authorization, and concurrent bar examination and law schools.

한·중 환경기본법 비교

강효백(Hyo Baik Kang) 중앙법학회 2009 中央法學 Vol.11 No.2

Both the Environmental Policy Basic Law of Korea (1990) and the Environmental Protection Law of China (1989) are fundamental laws in an environmental field. Korea`s environmental basic law is a fundamental law and yet it is not superior in effect to other individual environmental laws; Rather, it is used as a guide in construing individual environmental laws and plays the role of presenting the direction in shaping legislative policies. In China`s legal source system, there is a unique legal source superior to general laws, the Environmental Protections Law is not a basic law but a general law and is construed to be positioned in basic law and to perform the functions of the law. Korea`s law is a policy law in principle and a regulation law to some exception, whereas China`s law is a regulation law in principle and a subsidiary policy law designed to aid the economic development. In China, Environmental Protection Law remains at the level of antipollution law, which is based on legislative principle that the disruptions are incidental expenses to economic development, and the provisions of the law are somewhat lacking in contents as well as in effectiveness and the law focuses on control of the pollution and compensation for the damage. The principles of Korea`s law is prevention and precautionary, polluter pays, sustainable development, public information and such others, whereas that of China is mainly, government pre-regulation and developer pays and has no provisions as for sustainable development. Korea is moving towards legal improvement while keeping away from proclamatory regulations in environmental law and consolidating the functional relation. China is reinforcing the guarantee of the environmental rights, relief system, correspondence to WTO system while promoting to enact the `Environmental Basic Law` that is true to its name, a basic law higher in legal source system.

WTO TRIMs협정에 따른 중국의 외국인 투자법제의 개선에 관한 연구

강효백(KANG HYO BAIK) 법무부 국제법무정책과 2004 통상법률 Vol.- No.59

국제인권규약 가입에 따른 중국헌법상 기본권조항의 현황과 개선논의 분석

강효백(Hyo Baik Kang) 중앙법학회 2010 中央法學 Vol.12 No.3

China signed and ratified ``International Covenants on Economic and Cultural Rights (A Covenant), signed ``international Covenants on Civil and Political Rights (B Covenant) and inserted human rights provisions through the revision of the Constitution of the China in 2004. With the powers to regulate human rights, a universal value of humankind, International Covenants of Human Rights is superior in its constitutional authority and effects to the Constitution of China and applies to Chinese human rights as it is to people in any other country. Also, there is no exception against the covenants in the source of the constitution of China who has agreed and signed for the covenant. However, the covenants conflicts with current Constitution of China which bases ``Socialism with Chinese Characteristics`` as its ideology. Such conflict is the main reason why China has not ratified B Covenant. While universality, identity, and superiority of human rights over a nation are considered the most important values by the Covenants the Constitution of China only reflects the viewpoint on human rights that support class-consciousness in giving human rights, allowance of the government to grant rights, and sovereignty-over-human rights approaches. The Constitution of China lacks in its regulation 14 provisions including rights to strike, right to life, freedom to choose and change residence, freedom of expression, prohibition of forced labor, etc. Although other constitutional provisions such as self-determination, freedom of religion and faith, right to education exist but such provisions often contradict to each other and the degree and range of effective protection are narrower and poorer in reality than ones specified than the Covenant. It can be mistakenly accepted that reservation of law in the Chinese constitution, since it provides no regulation on the method, purpose, and limitation to check the power of the state, is to give the lawmakers authorization to limit people`s basic rights and discretionary power to limit the power of the state. As a measure to mediate the conflict between the two sets of different constitutional provisions Chinese academia suggests ratification of B Covenant via reservation of certain provisions under current law, effective practice of A covenants and B covenants by using legal interpretation mechanism, and drastic revision human rights provisions that are currently effective. Eventually, a gradual development of standards to secure human rights of the constitution from establishment of the「Basic Human Rights Law」and revision of the constitution, which will be substantialized by reenforcement of basic human rights, firm establishment of judicial review of legislation and constitutional petition is expected.

WTO TRIMs협정에 따른 중국의 외국인 투자법제의 개선에 관한 연구

姜孝伯(Hyo-Baik Kang) 대한국제법학회 2004 國際法學會論叢 Vol.49 No.2

본 연구는 WTO TRIMs협정의 주요 내용 및 중국의 외국인 투자법제의 특정을 개괄하고 중국정부가 TRIMs협정에 근접하도록 개정한 외자법제의 현황 및 그 문제점을 분석하고 향후 동향을 전망한 것이다. TRIMs협정은 국제투자의 자유화를 위한 포괄적인 규범은 아니지만, 무역관련투자조치를 금지하는 최초의 다자간 투자규범이라는데 중요한 의미를 가진다. 중국의 개혁개방 초기, 기술과 자본의 축적이 미비한 상태에서 외자유치는 경제발전에 결정적 역할을 하였으며 화교자본과 선진외국자본이 원활하게 유입되게끔 하기 위해서는 외자유치에 관한 제도적 장치를 법제화하는 것이 시급하였다. 이에 중국은 ‘외국인 투자자의 권익보호’를 헌법 조항으로 규정하고 『합자기업법』, 『독자기업법』, 『합작기업법』 등 일반 법률보다 상위규범인 삼자기업법을 제정하는 등 외자유치정책의 법제화를 꾸준히 추진하였다. 그 결과 계획경제체제와 시장경제체제가 병행하는 양궤제 입법체계라는 중국특유의 법체계가 성립, 장기간 운용되어 왔다. 그러나 2001년 WTO 가입을 전후하여 중국은 내자와 외자가 동일한 시장경제체제하의 도전과 기회에 당변하는 법제 즉 양궤제에서 단궤제로의 방향전환을 모색 하여야만 하는 국변에 이르게 되었다. 특히 TRIMs협정은 WTO규칙의 중요한 문건의 하나로서 그 원칙은 중국의 외국인 투자법제에 반드시 준수되어야만 하는 것으로서 중국내 외자기업은 내국민대우원칙과 수량제한금지원칙 및 투명성 요구를 제도화하여 실행하여야 할 의무를 지게 되었다. 따라서 중국은 삼자기업법 중에서 TRIMs협정과 배치되는 조항, 이를테면 수출실적요구, 무역수지균형의무, 중국 내 우선구매의무 조항 등을 삭제하는 등 외자법제를 대폭 정비하였다. 그러나 중국 측 투자주체로서의 개인자격 참여의 제약 출자의 인정자본제 채택, 유한회사형태의 합자기업, 이사회에 과도한 권한 부여 등 여전히 TRIMs협정과 상치되는 외자법규들이 잔존하고 있다. 향후 중국은 현행 외자법제를 TRIMs협정에 더욱 근접하도록 외자기업의 내국민대우 기준을 투명하고 공평하게 적용되는 제도화를 추진하고 외자기업에 대한 차별을 엄격히 제한하는 한편 국내기업에 대한 역차별도 시정하는 내용의 새로운 법규 제정을 가속화하고 법에 따른 업무진행을 한층 강화할 것으로 예견된다. 중국은 세계통용의 투자규범과의 유기적인 통합을 이루는 투명하고 체계적인 외자법제를 발전시키기 위하여 관련법규를 정리 개편하는데 노력을 기울이고 있음이 분명 하지만 또 다른 한편으로는 TRIMs협정 가운데 개도국에게 허용한 예외조항과 유예 및 경과조치조항들을 발굴 최대한 활용하기 위한 움직임에도 주의를 기울여야 한다. 즉 중국은 TRIMs협정의 예외조항을 활용, 경제발전동력을 외자유치에 지나치게 의지하던 상황을 극복하기위하여 TRIMs협정에 직접적으로 저촉되지 않는 법규는 계속 유지하되 외자기업에 대한 내국민 대우 및 수량제한금지 원칙이 충분히 반영된, 투명하고 일목요연한 『통합외자법(가칭)』의 제정을 추진할 것으로 전망된다. This study summarizes the main contents of the WTO TRIMs Agreement and the major characteristics of China's Foreign Capital Laws, which the Chinese government has recently amended in accordance with the Agreement. It also analyzes the present condition and the problems of the law and its future prospects. Although TRIMs Agreement cannot be regarded as a comprehensive regime for the liberalization of international investments, it is the first multilateral investment treaty that regulates the trade-related investment measures. At the initial stage of the reform and opening where the accumulation of technology and capital was insufficient, the import of foreign capital played a decisive role in China's economic development. In order to induce effectively the capital of Chinese merchants overseas and that of advanced countries, the legislation of systematic mechanism on the import of foreign capital was urgently needed. In this regard, the Chinese government has stipulated 'Protection of Foreign Investors' Rights and Interests' as a constitutional provision and pushed forward the legislation of its foreign capital import policy on a steady basis by enacting Three Capital-Related laws, which include Equity Joint Venture Law, Wholly Foreign-Owned Enterprise Law, Contractual Joint Venture Law, all of which are superior to other general laws. As a result, the Dual Track System, a particular legal system of China's own, where planned economy and market economy co-exists, has been developed and used for a long time. However, by 2001 when China joined the WTO, it became necessary to change the policy direction from the Dual Track System to the Mono-Track System, a legislative system in which both domestic and foreign capital face challenges and opportunities. The TRIMs agreement, in particular, is one of the WTO's important sub-agreements and China's Foreign Investment laws must observe its principles. Therefore, foreign enterprises in China must abide by the principle of national treatment, the prohibition of quantitative restrictions, and the requirement for transparency. Accordingly, the Chinese government streamlined the foreign capital laws by deleting clauses such as the requirement for export sales performance, requirement for maintaining the trade balance, and domestic procurement requirement, all of which run counter to the TRIMs agreement. However, there still remain several foreign capital laws that contradict the spirits of TRIMS agreement. Those include the restriction of individual participation as a Chinese investor entity, adoption of optional capital system, and joint venture business in the form of a limited liability company, and excessive authority granted to the board of advisors. In the future, the Chinese government is expected to push forward the institutionalization that is more fairly applied to foreign enterprises in terms of the national treatment criteria in a transparent manner, stringently prohibit the practice of discrimination against foreign enterprises, while accelerating the legislation of new laws and regulations that will correct the reverse-discrimination against domestic businesses and reinforce the operation of business through the rule of law. It is apparent that China is putting an effort into reshuffling and reorganizing the relevant laws and regulations so as to develop the foreign capital laws into more systematic and transparent one and thereby achieve the organic unity of investment norms that prevail in the world On the other hand, attention must be paid to the exceptions clauses, postponement, and interim measures clauses permitted to developing countries in order to make the best use of them. In other words, China is expected to push forward the legislation of a transparent and clear-at-a-glance 'Integrated Foreign Capital Law/tentative),' which fully reflect the principle of national treatment and quantitative restrictions while the country continues to keep the laws and

중국 신재생에너지법제의 현황과 문제점

강효백(Hyo Baik Kang) 중앙법학회 2011 中央法學 Vol.13 No.2

China ranks 1st in energy consumption and relies entirely on energy importation therefore it is important for China to secure an optimum sized energy source in order to maintain its 8-9% of annual economic growth. Since fossil fuels or nuclear energy cause serious environmental problems or have the potential to cause such problems, it is difficult for China to opt these fields as their long term energy measure. Accordingly, China has pushed ahead with legislating policies supportive of developing sustainable renewable energy as their future energy source in order to further develop their economy and enhance the lives of their people, and in 2005 the Renewable Energy Law was legislated and enforced. The main purpose of the Renewable Energy Law is for the central government to provide economic incentives for renewable energy. In order to accelerate the development of and market formation for renewable energy, this law has constructed 5 big institutional strategies: total amount target policy, a policy that requires all electricity produced to be purchased obligatorily, feed in tariff, cost sharing policy and a policy for securing capital for specialized items. This law requires more renewable energy to be consumed, no allocation of renewable energy supply, support for construction and access of transmission networks, tax breaks (value added tax, corporate tax and etc.) to be given, support for research and development and boost self-reliance in terms of technology and facilities. The Chinese government revised this law in 2009, gave preferred dividends to transmission network companies, actualized the policy guaranteeing the purchase of all renewable energy generated and defined the funds for renewable energy generation. However, Chinese legislation on renewable energy is exposed to many problems such as being generally inadequate, mutually paradoxical and repetitive between regulations of equivalent importance and regulations superior and inferior to one another, standardized regulations unsuitable to the differing characteristics of the different types of renewable energy, regional regulation inertia depending on the regional characteristics, lack of connectivity with other related regulations and more. However the Chinese central government has set enhancing the share of renewable energy in the mid long-term as a major task for the country and is spurring changes in renewable energy legislation. Such attempts are worth referring to for Korea`s renewable energy policies and legislation.

중국 국가급 경제기술개발구의 특성과 전망: 경제특구와의 비교를 중심으로

강효백 ( Hyo Baik Kang ) 국제지역학회 2004 국제지역연구 Vol.8 No.2

내국민대우원칙에 따른 중국 외자기업법제 개편논의와 전망

강효백(KANG HYO BAIK) 법무부 국제법무정책과 2006 통상법률 Vol.- No.71

The WTO system made all membership countries to follow the international trade regulations system, and the fundamental measures of China on joining WTO is to complete its market economy law system to match the needs of market economy and WTO demands. China's foreign investment law still includes articles that are contrary to national treatment and basic principles of WTO despite the revision in year 2000 and 2001. Also, there were no change or actual improvements done on the collision and contradiction between laws, and those with their superior ordinances as well as disharmony between foreigners investment enterprise and company laws, and other civil, mercantile laws. This situation is negatively and passively influencing China's politic issues called as creation of a healthy, clear foreign investment inducing environment. However, in August 2006, the Standing Committee of the National People’s Congress commenced the discussion on the amendment of the Income Taxes Act that unifies the enterprise income taxes of domestic and foreign enterprises and this law is expected to take effect as of 2008. Such movement for unifying the income taxes of foreign and domestic capital corporations is directly related, in terms of depth and timing, to the long-debated topic of the amendment of China's foreign investment law system. The concern with the China's foreign investment law is the fact that, rather than treating foreign investors with disadvantage and prejudice, the domestic enterprises are being held in unfavorable positions because the foreign investments are being granted with too much privilege. Therefore the process of the national treatment became essential in revolutionizing the China's foreign investment law system. China, which has become the country in possession of the most foreign exchange, changed their attitude from what they used to passively and reluctantly seek for the need of amending the National Treatment as a mandatory WTO measure to what they now try to actively rationalize the need for an amendment that complies with the National Treatment while the academia is pursuing a balanced combination of the China's Transcendental National Treatment and the WTO's National Treatment. Even if the Income Taxes Act that unifies the income taxes of foreign-domestic enterprises is introduced, considering the positive roles that foreign enterprises are responsible for and the priority that the WTO grants to developing countries in terms of their investment, a Unified Corporation Act that will effectively demonstrate the national treatment in a short period of time seems difficult. Considering the fact that the WTO National Treatment is in gradual progress and that China is familiar with procedural unified law translation by disperse lawmaking, the Code of Foreign Investment Unification theory seems like a more reasonable and feasible amendment method than the mono-track system amendment theory or the standard corporation act amendment theory. Taking into account WTO international trade regulations, world trends of economy globalization, and the Chinese macro-economy, China, hereafter, is expected to concentrate all efforts in improving the environment of hosting foreign capitals by heading towards the ‘national treatment for global convenience’ rather than the ‘ultimate treatment for the Chinese tradition.’ Meanwhile, the country is viewed to change from 'code system' to 'mono-track system' after changing its China's foreign investment law system from 'dual-track system' to 'code system'.

중국 국유상업은행 지배구조에 관한 법적 연구

노은영(Roh, Eun-Young),강효백(Kang, Hyo-Baik) 경희대학교경희법학연구소 2012 경희법학 Vol.47 No.2

중국은 덩샤오핑의 개혁개방을 시작으로 시장경제 체제를 받아들인 후, 장쩌민과 후진타오 정권을 통하여 경제의 외연을 넓히며 세계 경제에서 중국의 영향력을 확대시켜 왔다. 하지만 평균 9%성장이라는 경제성과에 비하여 중국 금융시장의 발전은 더딘 편이었다. 중국 경제성장의 견인차 역할을 한 삼자기업법이 70~80년대에 제정되었던 것과 달리 금융시장의 근간이 되는 『인민은행법』과 『상업은행법』은 1995년에 와서야 비로소 제정된 것만 보아도 짐작할 수 있을 것이다. 그러나 2001년 WTO 가입을 기점으로 금융시장의 점진적인 개방을 약속한중국정부는 자국 금융 산업의 경쟁력 강화에 주력하게 되었고, 그 결과 최근에는금융영역에서도 중국의 영향력을 확대시키고 있다. 중국 정부가 자국 금융 산업 경쟁력 강화를 위하여 추진한 정책 중 대표적인것이 바로 4대 국유상업은행의 지배구조에 대한 개혁이다. 그리고 2002년 6월 인민은행이 『주식제 상업은행 지배구조 지침』과 『주식제 상업은행 사외이사 및 외 부감 사 지침』을 연이어 발표하며 국유상업은행 지배구조 개혁을 위한 법률적기반을 마련하였고, 2003년 공산당 16기 3중 전회를 통과한 『사회주의 시장경제체제 개선에 관한 결정』을 통하여 은행의 지배구조 개선을 국가적 차원의 정책 으로 추진하기 시작하였다. 본 논문은 은행지배구조에 대한 중국의 선제적 법제준비 사례를 연구함으로써 중국 금융 제도에 대한 이해를 높이고 중국식 사회주의 법률체계가 은행지배구조와 관련한 정책 및 법제에 어떻게 반영되었는지를 분석하는 데 목적을 두고 있다. After initially accepting market economy by Deng Xiaoping’s revolutionary opening, China has been strengthening economic influence within world economy, expanding economic frontiers by political regime of Jiang Zemin and Hu Jintao. However, in comparison with economic growth at an average rate of 9%, Chinese financial market was slow in growth. This can be induced from the fact that the enactment of 『People’s Bank of China Law』 and 『Commercial Banking Law』 as the base of the financial market were enacted only in 1995, while Three Capital-Related Laws was enacted already in 1970s and 1980s taking the role of growth engine for Chinese economy. However, starting from entry into WTO system in 2001 with the promise of gradual opening of financial market, Chinese government focused on strengthening competitiveness of domestic financial industry. Resultantly, China is recently expanding influence in financial area as well. The most outstanding policy among the measures taken by the government to strengthen the competitiveness of domestic financial industry was the governance restructuring on four state owned commercial banks. And in June of 2002, PBOC established the legal base for state owned commercial banks’ governance restructuring, by announcing 『Share based commercial banks’ governance guideline』 and 『Outside directors and external audit guideline for share based commercial bank』 successively, In 2003, China proceeded improvement of banks’ governance as national level policy by 『The decision on improvement of socialist market economic regime』 adopted at Communist Party 16th period 3rd Central Committee. The purpose of this study is enhancing understanding on Chinese financial system as well as analyzing how Chinese style socialist legal system was reflected in the policies and legal system related with bank governance, by studying China’s anticipatory legal system preparation case on bank governance.