일본의 사법제도 개혁의 현황과 과제

민병로(Min Byung-Ro) 한국공법학회 2005 공법연구 Vol.34 No.2

In Japan, after the Meiji Restoration and the postwar reform, the third reform was planned under the ideas of neo-liberalism in the 1980s and genuinely proceeded since the 1990s. This reform was based upon political reform, administrative reform, promotion of de-centralization and de-regulation. In order to achieve the reform, the main task was the reform of judicial system. On July 1999, the Judicial Reform Council (JRC) was established in the Cabinet, which held deliberation meetings for sixty-three times. The JRC drew up a statement based upon the result of deliberation that was delivered to the Cabinet on June 2001. According to the statement, the reform of judicial system should be based upon plans of economic structure reform, such as political and administrative reform, promotion of de-centralization and de-regulation, and these should be combined with the principles of the Constitution. The main task of the judicial system reform will therefore be the re-construction of the country's shape. According to the JRC, the fundamental task of the judicial system reform should be based upon how the spirit of law and the rule of law achieve the law of nation flesh and blood of the country and its shape. Moreover, the reform should also find out what needs to achieve the individual' right and the people's sovereignty. In order to materialize the fundamental task of the judicial system reform, the JRC indicates three main criteria, such as the improvement of institutional base, the amplification of human resources and the establishment of nation base. The embodiment of the reform has been conducted to the introduction of Law School and Citizen Judge System, the establishment of Judicial Support Center, the revision of Administrative Case Litigation Law, the foundation of Intellectual Property High Court, the adoption of Labor Umpire System. This study aims to look at the reform of judicial system in Japan, and to examine its outcome in order to have some suggestion for the reform of judicial system in Korea.

시민사회단체의 현황과 제도적 개선방향 : 광주지역 시민사회단체 설문조사와 관련하여

민병로(Min, Byung-Ro) 전남대학교 법학연구소 2007 법학논총 Vol.27 No.2

Until recently, South Korea had the similar legal regulation over NGOs to Japanese. Namely, under the previous legal system, NGOs in South Korea had to establish an Incorporated Association or an Incorporated Foundation under the Civil Law, or to establish a special legal entity under Special Acts, to get an artificial person. But, due to the strict position for permission of an artificial person, most of small NGOs fell into “organizations without legal entity” against their will. To solve this problem, Japan made an NPO Act in 1998, which contains a special clause to grant many NGOs an artificial person. Furthermore, one of the three administration reformations in Japan enacted a “law on the new system of public legal entity” to re-establish the system of the pubic legal entity in 2006. South Korea also enacted a “law for supporting NGOs” in 2000. But, this law does not include an article to grant NGOs an artificial person. This study is intended to review issues of NGOs in South Korea from the institutional standpoint, based on the survey of NGOs in Gwangju city. This study came to a conclusion that the fundamental reformation of regulation system over NGOs and tax reductions to NGOs is necessary to support NGO’s activities.

인간의 존엄과 미출생 생명의 헌법상 지위

민병로(Min Byung-Ro, 閔炳老) 한국공법학회 2007 공법연구 Vol.35 No.3

본고에서는 최근의 생명과학기술의 발전으로 인해 헌법학이 직면하고 있는 미출생 생명의 헌법상의 지위에 대해서 고찰하였다. 즉 미출생 생명이라 할 수 있는 수정란의 생성 및 잔여배아(embryo)의 폐기, 태아(fetus), 체세포배아복제 등의 문제에 대해 생명의 시기를 언제로 볼 것인가? 또한 생명권과 인간의 존엄을 결합하여 볼 것인가, 아니면 분리하여 볼 것인가 등의 헌법적 문제에 대해 검토하였다. 기존의 독일의 통설과 판례는 듀리히(D?rig)의 객체공식(Objekt formel)에 근거해서 미출생 생명에 대해 인간의 존엄성과 생명권을 결합시켜 고찰함으로써 생명과학기술의 발전으로 인한 헌법상의 문제에 대해서 충분한 설명을 하지 못하였다. 이를 극복하기 위해 나온 튜리(M. Tooly)의 Person론이나 엔겔하트(H. Engelhardt)의 수정된 Person론도 자기의식이 존재하지 않거나, 최소한의 사회적 상호작용에 참여하지 못한 태아나 중증장애인 등에 대해서 인격이라 할 수 없게 되어, 헌법상의 인간 존엄성의 주체가 될 수 없다는 논리적 귀결에 이르는 문제점을 지니고 있었다. 따라서 본고에서는 독일의 최근의 학설처럼 미출생 생명의 헌법상의 지위는 인간의 존엄과 분리시켜서 생명권으로부터의 파악이 필요하다는 점을 확인하였다. 다만, 필자는 생명을 ‘생물학적 의미의 생명’과 ‘인격적 의미의 생명’으로 구분하고, ‘인격적 의미의 생명’의 시기에 대해서는 수정란이 자궁에 착상하여 원시선이 나타나는 14일 전후가 아니라, 개체의 자기동일성 즉 인격이 형성되는 뇌생 이후의 시기로 보아야 한다는 점과, 뇌생 이전의 ‘생물학적 의미의 생명’은 장래 세대의 보호를 위해 객관법적 보호대상이 된다는 점을 제시하였다. This study contemplates current issues on unborn life’s position in constitutional law which has been caused by the development of biotechnology. There is especially an argument on which period we should consider the beginning of life and whether we should provide human embryos with human dignity and right to life altogether, or with them separately. In Germany, the common view and the judicial precedents for unborn life have accepted D?rig's Objekt formel that considers human dignity and right of life altogether. However, D?rig's view on unborn lives does not seem to account for the constitutional problem of development of biotechnology. Although Tooly's Theory of Person and Engelhardt's revision of the Theory of Person attempt to overcome the constitutional problem due to the development of biotechnology, their view concludes that fetus or seriously-handicapped person without self-consciousness and social interaction is not the subject of human dignity in the constitution. That view is personally unacceptable. An acceptable view from H. Dreier argues that unborn life should only be considered their right to life, separating it from human dignity in the constitution. However, even though H. Dreier's overall view is acceptable, his view of the beginning of life from about fourteen days differs from my personal point of view that the beginning of life should be accounted for the period of brain formation in about twelve weeks. This study will deal with the issue.

일본국헌법 개정에 관한 고찰 -중의원 헌법조사회 보고서를 중심으로-

민병로(Min Byung-Ro) 성균관대학교 법학연구소 2005 성균관법학 Vol.17 No.1

After the defeat of the World War Ⅱ, Japan enacted its constitutional law under the Untied Nations' occupation. The enacted constitution denies the sovereignty of the Emperor and Sovereign power resides with the people. The current constitution which has not experienced any enactment after the establishment of 3 main principles; sovereignty with the people, guarantee of the fundamental human rights, pacifism. Among the 3 principles, the pacifism(article 9), which declares the abandonment of war, the prohibition to have the right of war capability, the right of belligerency, has been the revised by the constitutional revision group. However, although the right to have war capability is still not permitted by the article 9, the Japanese government has interpreted that the article 9 only prohibits the invasion of other countries, but not for self-defense. Thus the Japanese government should have minimum military forces for self-defense. The Japanese government asserts that the self-defense force, which was established in 1950s, is not the troop but the minimum scale organization for defense, so that the limit of self-defense should be dependent upon the international situation, the level of military technique, etc. and it should be decided by the Diet. Despite the concerns of inside(unconstitutionality) and outside(revival of militarism), the Japanese government has consistently strengthened the self-defense force. Moreover, the Japanese government has dispatched self-defense forces for the contribution of world peace after the end of cold war. It is possible as the cooperation with US forces by using the concept of rear side support. In addition, after 9.11, the Japanese government made it possible for the self-defense force to act in the non-battle field zone under the cooperation with the world's effort to prevent from terrorism and dispatched the self-defense force to Iraq in 2003. Now the Japanese government is trying to revise the article 9 to make self-defense force as formal troop that make it possible to exercise the right of collective self-defense. This means that the Japanese government could abrogate the permanent pacifism and build strong militarism. This is out of the limit of revision of constitution and against the promise of pacifism after the defeat of World War Ⅱ.

U-Home 시스템 구축현황과 발전방안에 관한연구 : 브랜드 아파트를 중심으로

민병로,김영대 호남대학교 대학원 2008 호남대학교 대학원 논문집 Vol.6 No.-

Recently ubiquitous computing (Ubiquitous computing) on engineering and social scientific research results in the accumulation phase of the city informatization, and the definition of Internet-based information retrieval and electronic transactions in cyberspace is a dimension beyond individuals and take advantage of things, homes and cities, The transfer of space-based information and provide continuous control of space that will enable a comprehensive intelligence service highly qualified in the direction of failures. Environment is ubiquitous, like water or air space to a computer or network to the user place without consciousness, regardless of the environment can freely access the network says. These ubiquitous in the environment, industrial development direction for all human values and his followers part of a big focus for development and meaningful change that can it. Housing is a human form and enjoy a living thing, or any form of social and cultural features are intelligently symbolic value that will change. Here the role of design will be taken increasingly large portion of the current design is bigger than the perspective of consultation with the management will expand the concept. We will be living at the upcoming residential space in the near future, ubiquitous experience will be a significant change in paradigm. That is gradually changing in several parts already started and will be coming closer to us. The house through a network of wired and wireless consumer or the environment can have a home network to manage the environment and the already established part of our daily life, but from the experience. A space of the past is as simple and residential space in the hierarchy of human society and human life pattern is more complicated and complex features of living space with residential space, space is the changing needs of human beings and the more harm repeatedly As human as you imagine living space is going to be changed. In addition, residential space is just a convenience for individuals seeking Furthermore, the space could meet the emotional satisfaction of going to be changed. In this environment is ubiquitous, we will usher in a new utopia as our awareness. However, the ubiquitous convenience and satisfaction, an ideal environment for residential space, but we have issues of personal privacy. Environmental issues and these might be alienated from the people who care about the problem will be. The problem of e-established ethical consciousness and respect for the privacy of others is called social values that will be formed. To that end, the policy will need to build and social atmosphere. In addition, the latter problem that may occur alienated people living in the part of the ubiquitous paradigm in order to minimize this service is not just for a handful of truly ubiquitous the meaning must be prepared to hold on. In addition, it is essential that policy can be corroborated. Ubiquitous national policy has led and made enough progress in establishing policies and careful consideration should be very careful.

司法權의 槪念과 憲法訴訟 : 일본에서의 논의를 중심으로

閔炳老 한국공법학회 2003 公法硏究 Vol.32 No.1

The judicature is on a level with the legislation and the executive as one of national power in the modern state where the division of power is enforced. And usually the judicial power is belong to the court, the independent state organ, as one of state powers distinguished from the legislative power and the executive power. It is prescribed, in the Constitution of the Republic of Korea that "Judicial power shall be vested in courts composed of judges." (one of clauses Article 101), and "The courts shall be composed of the Supreme Court, which is the highest court of the State, and other courts at specified levels." (two clauses of this Article), so the existence of judicial power and its reversion corresponding to the legislative power and the executive power are clarified. However, these Articles do not clarify anything about contents of judicial power or jurisdiction. Therefore, judicial power in a substantial meaning should be clarified. By that, the distinction between judicial power and executive power, expansion of object in 'Verfassungsbeschwerde', supplementation of 'abstrakte Normenkontrolle', taxpayer' suit in administration procedure act, extention of 'verfassungsrechtlichen Organstreitigkeiten' could be possible. Therefore, recent discussions concerning the concept of the jurisdiction developed in academic circles in Japan in relation to the activism of the judicial review to clarify such a problem is mainly examined in this paper. It is said that the administration procedure act of Republic of Korea was mainly influenced by that of Japan. And the provision of judicial power in the Japanese constitutional law is similar to the Koreans. So we can make the first step forward the solution of present question by the close examination of the discussions on the concept of judicial power and judicial review in Japan.