集團的 行政訴訟의 立法化에 관한 硏究

趙淵泓 한국공법학회 1992 公法硏究 Vol.20 No.-

프랑스 越權訴訟과 우리 나라 民衆訴訟과의 比較

趙淵泓 호남대학교 인문사회과학연구소 1998 인문사회과학연구 Vol.5 No.-

特別權力關係와 法治主義

趙淵泓 湖南大學校 1983 호남대학교 학술논문집 Vol.3 No.-

Special power is different from the general power to which people are subject. It is formed by a special cause of law and is characterized by people's being subject to the inclusive power, such as the service relation, public facilities use, special supervisory, corporation on the public law. This special power was initiated to eliminate or relax the constitutional ism for the effective achievement of special administrative purposes in the absolute monarchy, Germary in the 19th century in the cause of bureaucracy in other words the authority of bureaucrats and the Procurement of free administrative domain. Later it was introduced into Japan and Korea from Germany. And it has been prevailing in the society of special power relationship in the name of carrying out the effective achievement of specia1 administrative objects and autonomy. But this theory should be blamed or corrected because it has been held to eliminate or relax constitutionalism for bureaucracy in the government of the people which adopts the substantial constitutionalism as an administrative pinecple. EspecialIy, today the societies of people's being subject to special power have been increased, and the matter of safeguarding human right in the domain has been closed up as a serious one. The theory of special polder should go together wi th not only the effect ivy achievement of special administrative purposes but also that of constitutionalism.

刑法上 期待可能性의 本質과 適用限界

趙淵泓 湖南大學校 1984 호남대학교 학술논문집 Vol.4 No.-

The ‘Zumubarkeit’ means the possibility of legal (lawful) acts. It is a central idea of the theory of normative responsibility which has been developed first in Germany in the 20 century. Out of consideration for the true nature of it, it should be considered as a guiding principle of the responsibility at large in Criminal law. Because ‘Zumubarkeit theorie’ started as an element of normative responsibility, but this theory contains the essence of the judgement of responsibility of lawful acts, and it has made the criminal responsibility more rational and scientific, it should be applied not only as an element of normative responsibility but also as a judgment of the ability of criminal responsibility, the psychological element of criminal responsibility, viz., deliberation, misfeasance, and the erasure, reduction, immunity of criminal responsibility. But the super-legal application of it to the case should not to be allowed, because there is no-bases of positive law in Criminal Law as the ‘rechtswidrigkeitsausschliessungsgrunde’(Article 20 of Criminal Law) and the ‘Schutzfunktion’ of the Criminal Law can not be maintained. So it transcends the limits of constructional jurisprudence.

組稅逋脫犯에 관한 硏究

趙淵泓 湖南大學校 1985 호남대학교 학술논문집 Vol.5 No.-

The contemporary states are welfare ones. According to the escalation of states functions, the importance of taxation is increasing more and more. Especially, As our country needs enormous development expenses for the national defense and the creation of advanced country, it's tax-revenue has still more important meanings. Although the increase of the nation's tax-revenue is required, the increase in tax-burden for it's own sake, for example, the new formation of tax-l tems and the burdens of the people. Therefore, through the perfection of the puntive law of the illegal evader of taxation which is caused by the imperfection of tax law, and the corruption of the tax-justice, the rationalization of the tax-administation, the fairness of tax-burdens and tax-justice should be materialized. As the current punitive law of tax evader contains not only the tolerance but also the severity which brings about the irrationality in the crimminal law theories, it is difficult to achieve the aims of tax-administation and crimminal policy. In this study, through the general research of the illegal evation of taxation, I will present it's concrete problems it's rectification-proposals.

美國의 公共訴訟과 우리나라 民衆訴訟의 原告適格에 관한 硏究

조연홍 호남대학교 1986 호남대학교 학술논문집 Vol.7 No.1

The distinctive features of the contemporary industrial Societies are massification-cultures as mass productions and mass-consumptions They gave a great many changes to not only economical fields but also socialrelations, human-impulses, controversies and law-systems. There are many cases that the activities and Relations of humen are derived from category, group, and class rather than a person or many as a person. So They should be protected not only the human rights of natural law in 19c. but also metaindividual, collective, diffuse rights of group as an important request of welfare state. In Contempeary Societies, a person can give a great damages to many of persons. In this case, It is clsearly impossible or difficult for us as a single person to confront effectively against the oppose party in order to protect from the damages. Accordingly, we must devise a new judicial procedure and relief method, because we cant relieve the mass-damages with the traditional judicial procedure as a two party affairs. In order to answer the purpose, many foreign countries are trying to improve the systems of the collective litigation or at their best in them simultaneously. It is necessary for our country to improve the collective litigation to relieve us from the damages of the invironm emtal conteminations, of the consumers and of mass-accident as minus-property in 1970s. In this paper, I will try to study only the standing which is the most important in the collective litigation by comparing the Korean Popularklge with American Public Action to recognize the approach between them and show the idea of the betterment.

民衆訴訟의 比較法的 硏究

趙淵泓 호남대학교 1994 호남대학교 학술논문집 Vol.15 No.-

Modern societies can be featured as industrial and popular ones accordingly collective disputes are attribute and acutuality in modern societies and almost countries in the world are trying to equipe completely the collective litigation system, our country, korea is not excrption. Now Minsitry of justice is trying to legalizate the colloective litigation system through of the civil particular law depatrment committee and the public law one of the law affairs advisory committee. In the Legalize the collective litigation system, they mutual agreed to introduce the Class Action of America and the Vervbandsklage of Germany , but especially one of the problems disputed in the work is the ground provision of it proposed by the members of the committee is as fallows, an poinion to provide it as a part of the joint litigation system, an opinion to provide it as a part popular litigation system, an opinion to provide the new ground provision etc. These opinions are derived from misunderstanding the popular litigation system in our administrative Proceeding law, which is same as foreign countries's collective litigation system in principle of law. We can find the same character between our popular litigation system and foreign countries collective litigation system through comparing them, namely, The legal principle of our popular litigation is objective subject litigation, The standing of our litigation demands injury in fact or legality. The proceeding formalities of our popular litigation are an appeal trial and a party one The effect of our litigation reaches ideological parties and potential ones. Aa above , we can find that popular litigation is some as, in quality not only Englo-American Public Action and class Action, but also Continental Verbandsklage of Germany and Recours pour exces de popular of France, accordingly,administrative proceeding act article 3, 45, 46 etc about popular litigation should be ground clauses of our collective administretive litigation, and also introducing the foreign systems should supplement in it

民衆訴訟의 實務的 接近과 展望

趙淵泓 호남대학교 1997 호남대학교 학술논문집 Vol.18 No.3

One of the impending subject of the code of judicial procedure in welfare state is to develop the collective litigation because of the needs to settle the collective dispute, to guarantee the people's right in welfare state, to settle judicial of the collective dispute, to make the technigue in the judicial procedure of the collective litigation and to generalize the pouplaitigation. The impending subject is not to introduce foreign collective litigation system, but to progress our popularlitigation system as a collective litigation system. From now on, we have emphasized to introduce the foreign one without studying our populalitigation system. But to introduce and use the unfamiliar foreign one will make the various difficult problems, the rule of trial and error, difficulty of rooting the foreign one in our law system, and the double collective litigation system with our one. Popularlitigation is the essentially subjective objective litigation. The litigation for common interest settling collective dispute, we are familiar with it and we had better imploy it. The question with the pouplarlitigation is that has the essence of the collective litigation as foreign one. Theessence of the foreign one is subjective one, collective one, legal one, on the contrary, the essence of our popularlitigation is object one, common interests one, non-legal one. But the object one is from calling the subject one for the right and legal interest one. and calling the object one for vertual interest and lawfulness one, the latter one is subjective objective litigation as foreign one. Commoninterest one, is to give standing without the mandating form damaged persons and the essence of standing is same as foreign one Non-legal one is from calling the legal one for the right and legal interest one, and calling the non-legal one for vertual interest and lawfulness one, the latter one is legal one as case or controversy' of foreign one. So, the subject one, colective one and the legal one of the foreign one is equal with the object one, commoninterest one and non-legal one of our popular litigation. The popularlitigation is not only one of the collective litigation, but also there ar difficult problems of it than those of the subject one in legal procedure. When we provisions of popuplarlitigation in the administrative legal procedure, the popularlitigation is very different from the subjective litigation in the essencial, standying and judgement validty, but there are few difference, between them in other procedure. That is to say, the essence of popularlitigation is the objective one, common interest one and non-legal one, but the studying of it is recognized without mending from damaged persons, in the trial of it, authorized detection is allowed widely and the conversion of proof responsiblity and reduction is recognized, finally, the world validity of the judgement is recognized not only in the protest litigation, but also in two party litigation.

行政上 團體訴訟의 展望

趙淵泓 湖南大學校 1995 호남대학교 학술논문집 Vol.16 No.1

Recently, the collective litigation systems of civil and administrative case have been legalized in Korea as other countries the Civil Procedure Act Revision Special Department committee and the Public Law Research Special Department committee are going to make a collective litigation system through introducing strong points of class Action in America and Verbandsklage of Germany in this paper. I am going to point out something about Verbandsklage and prospect of legalizing it. First, what is to be ground provisions of the Verbandsklage, Second, what is to be the organization model having standing of Verbandsklage, Third, Present, is there nothing the functional Verbandsklage in our administrative proceeding Action. Although, we can recognize easily the strong point of Verbandsklage, through the essence of it, that it is superior by far, in getting the money, materials, information of litigation than class Action or public Action of America that gives a person standing of lawsuit, we are going to point out as a question that first, P.L.R.S.D.C thinks the ground provision of Verbandsklage is same as it of joint lawsuit and establishing it separately from the Popularklage the collective litigation in our administrative procedure law. Second, the model of organization as a standing that is essence of Verbandsklage our political party is analogous to above, because, above is a corporation same as our political party. Third, An election case by a political party in our country can be though as a bud of Verbandsklage. So far, in Germany, mother country of Verbandsklage, they approved minimum ones by special legalization they are necessary in private law, and Verbandsklage in administration is in review in federal state, but environmental case and nature protection case are legalized in state. Seeing the state of things in Germany, we think that progress of legalizing, it can not be faster in our country than in Germany especially, Verbandsklage of administration in Germany is under discussion phase, we should keep in mind. But we should hasten the legalizing it regardless of Germany's things because the necessity of Verbandsklage is urgency in any other countries we prospect that we can legalize it easily modeling the election case by political party because political party has standing as a corporation in election case of popularklage in our administrative procedure law.

法治行政原理의 現代的 照明

조연홍 호남대학교 1999 호남대학교 학술논문집 Vol.20 No.1

The 19C, Political doctrine is liberalism, so constutionalism was the method of liberalism, but the contents of constitutunalism was different acording to the political bacground of each countries the principle of constitutional admimistration was acquined through mordern revolution by citizen (bourgeois class), but the contents of constitutional administration principle are different between cotinetal law systems and Englo-Ameircan Law system. The former is based on the unequality between the goveror and governed, the latter is hasd on the equality between the governor and governed. Because they have different background after the 19c, revolution, the former couldn't outcast the monarch (the king), but the latter could outcast the monarch through the 19c. revolution and the former must have recevied the King's political requirement aquinst the citizens through the constitutinal compromise between them, but latter hadn't the king and needed not receive the Kimg's requirement only could have the lule of law for the citizens' equality. The 20c, political doctrine was welfare state, and every countries in the world were needed it in order to remove the poverty from capitalism and liveralism, especialy Englo-American law system countries were devorded in practiing the liberalism through 19c, so matters of proletarans were serious, they must have had the welfare state systems and rule of law should receive not only leveralism but also wel3838fare systems in it as a technics of practicing the welfare state, they were the administrative law, administrave commission board and administrative tribunal etc. So the contents of constitutionalism between cantinental one and Englo-American one are approched each others. The contens of constitutional adminstration principle of contimental law system conteries are first, the juridical creative power of parlamentary law, second, juridical reservation of administration, third, juridical superior of administion etc, and ones of Englo-american law system countires are common law, common court, administrative law and administrative tribunal etc. the former are perfuntory ones through 19c. but are achived as substemcial ones after world warⅡ, but the latter were substantial ones from 19c. Nevertheres, all are absurd from contempary legislative systems and legal thought. when the constitutionalism is practiced without derivative legal theories, it will infirnge the human rights, in order to cutiing it, contemperay constutional system must be supplemented many derivative legal theories. as below. First, the juridical creative power of parlamentary law (common law), administrative regulation. Second, jurdical reservation of adminstration must be supplemented with the administative procedural and welfare law. Third, juridical superior of adminstration must be supplemented with the trust protection principle, equality principle before the law and comparative principle between public interests and private interests.