우주잔해의 국제법적 규제

서원상(SEO WON-SANG) 성균관대학교 비교법연구소 2008 성균관법학 Vol.20 No.2

The reason that we can not leave the international matter of space debris unsettled is because we have launched a multipurpose satellite,Ari-rang No. 1, which is currently undetectable and lost. Considering the legal analysis of space debris problem based on space law and public international law, it is practically difficult to solve out just by defining the responsibility either of the actor or of the launching state. If the space debris problem is not only a matter of an individual state, it should be managed by the participation and cooperation of the global community. Therefore, we should discuss whether there is a legal basis to lead the states to participate in the space activity. Secondly, if the precautionary elimination of space debris is pertinent to overcome the limits of an ex post facto responsibility, we should focus on discussing whether there is a legal basis to charge with responsibility on the developed countries where they have technical capacities to remove the debris. Because the space orbit is entitled to all human beings, the resolution of space debris problem demands a common responsibility as a whole. Thus, in order to resolve the problem, we may expect not only on treaties but also on applicable legal principles. In addition, these principles must be recognized by the states to form as international law. Therefore, it is evident that "common heritage of mankind" and "sustainable development" provide an essential key to solve the problem. However, it is still obscure that whether there is a possibility to impose differential and burdensome responsibilities between developed countries, the dominant actors, and developing countries, the peripheral actors. Under the principle of sovereignty and equality, international law conceded with sacrifice by modifying the classical definition of "sovereignty" into a modern terminology in order to settle current international disputes. Particularly, the typical examples are not only international economic law, human rights law, environmental law, and the law of sea after the World War Ⅱ, but also space law. Although, it is difficult to enforce obligations and responsibilities on all states in a short term, the principle of "common but differentiated responsibility" is expected to provide an important clue to lead a participation and mutual agreement from both developed and developing countries.

한국 헌법상 교육기본권에 대한 논의와 일본 헌법과의 비교

허종렬(Hur Jong-Ryul) 성균관대학교 비교법연구소 2005 성균관법학 Vol.17 No.1

Today I touch the content of 'discussion on educational fundamental human rights in Constitution of Republic of Korea in comparison to those in the Constitution of Japan'. Specially here do I deal with matters like these : Above all I treat relations of the parties concerned in educational laws and resources of educational laws as preliminary matters for touching theories and cases of educational law. Specially here do I explain that the Resources are composed with Our Constitution and Educational Fundamental Law as norms of higher ranks and other laws related to education as norms of lower rank, for example, the Elementary and Secondary Educational Law and Higher Educational Law and academic theories and cases of our Constitutional Court as resources of unwritten laws. Continually I discuss meaning of Articles related to education in the Constitution in the viewpoint of educational fundamental rights and duties, for example, pupils' rights to learn, parents' educational rights and those of teachers. Also here do I compare articles related to the educational rights and the duties in our Constitution with those of Japan Constitution. Specially I study the questions what are articles related to education that are in the our Constitution, but not in Japan Constitution and what are the opposite of the case. Perhaps I think that if there are gaps in discussions between korean academic circles and Japanese circles, it is because of gaps of korean and japanese constitutions.

낙태죄의 비범죄화에 관한 연구

임웅(Yim Woong) 성균관대학교 비교법연구소 2005 성균관법학 Vol.17 No.2

離婚으로 인한 財産分割請求權의 法的 性質과 相續의 認定 與否에 대한 法理 再檢討(下)

정상현(Jung Sang Hyun) 성균관대학교 비교법연구소 2006 성균관법학 Vol.18 No.3

This article is connected with the former serials of the last term. It deals with the matters to divide matrimonial properties at the time of divorce, the object of properties to divide, concrete method and ratio of division and so on. Especially in judicial precedents, there is the matter concerned with the distinction to the portion of properties to be succeeded or not. By the way, that matter is able to be solved according to the conclusion that right of the claim for the division on matrimonial property is what for the substantial liquidation of co-ownership(husband and wife) or maintenance for a piteous party after divorce. The general views and judicial precedents have brought out of the standpoint that the right of claim for the division on matrimonial properties have double characters of the substantial liquidation of co-ownership and the maintenance for a piteous party after divorce. And they emphasize that the legal character of the right of claim draws an inference from two elements, liquidation and maintenance. On the other hand, they also insist that the amount of liquidation among the properties divided at the time of divorce is able to be succeeded, the amount of maintenance is not. But such interpretation has a big error. It cannot explain that how is the one right able to have the dual characters at the same time such as liquidation and maintenance, and that if the amount of liquidation is able to be succeeded and the amount of maintenance is not, whether the single right of claim for the division of matrimonial property on the whole is able to be succeeded or not. Even though the possibility of succession has been determined with due consideration of the liquidation or maintenance, according to various precedents continually be accumulated from year 1991, there are no precedents to decide separately the part of liquidation and the part of maintenance. Consequently, I think that the theories and precedents have to unify the one character for a liquidation or maintenance in concerned with the legal character of the claim for the division on matrimonial property, and that especially precedents should give a decision to separate plainly the part of liquidation and the part of maintenance at the time of division the matrimonial property. It is appropriate view that the legal character of the claim for the division of matrimonial property is to liquidate cooperating properties of married couple at the time of divorce on the ground of husband"s and wife"s contribution to properties. Therefore, I think that the right of claim should be succeeded, if the claimer is dead. Needless to say that the maintenance for wife who is wanted a economical ability after divorce should be considered separately such as a legislative policy for the protection of women. One step forward, I hope to point out several mistakes on the Article 839-2 of the Korean Civil Code. It provides that (1) one of the parties who has been divorced by consent may claim a division of property against the other party(para. Ⅰ), (2) if any consent is not made for a division of property as referred to in paragraph I, or if it is impossible to reach a consent, the Family Court shall, upon request of the parties, determine the amount and method of division, considering the amount of property acquired by cooperation of both parties and other circumstances(para. Ⅱ). (3) the claim for division of property as referred to in paragraph I shall be extinguished at the expiration of two years from the day of divorce(para. Ⅲ). However, it is too abstract for ours to decide an extent of properties be devised and to select a concrete method, standard and ratio for the division of matrimonial property. Therefore, I propose to make some changes a writing materials as like ""property acquired by cooperation of both parties "", ""the amount and method of division"" and ""o

세계화에 따른 노동법의 변화와 전망

이승길(Lee Seung-Gil) 성균관대학교 비교법연구소 2005 성균관법학 Vol.17 No.2

消費者團體訴訟

정규상(Chung Kyu-Sang) 성균관대학교 비교법연구소 2007 성균관법학 Vol.19 No.2

Consumer-related group litigation(""Verbandsklage"" in German) is directly relevant to two incompatible concept: the customer"s (citizen"s) legal protection of life. body. and private properties. and the corporation"s self-protection against the abuse of power to initiate an action. The unlawful use of right to commence litigation may cause the insecurity of either side by undermining the multiple consumers" claim to life. body. and private properties or even by ultimately causing the breakdown of the corporation. To minimize its liability. the Consumer Basic Act limits the institute of the group litigation to the group of people who are in charge of the protection of the customer rights as well as to the cases in which the lawful rights of life. body. and private properties of multiple customers is or can be trespassed. The restriction on the plaintiff proclaims the standing to sue in a consumer group litigation and the regulation of the applicable cases proclaims the real parties in interest. The Act constrains that only the institutors who based on the articles of the association always pursue the promotion of the customer rights as the primary goal. retain one thousand or more (or five thousand or more) members. and affiliate themselves with an organization with the record of actual performance for one or longer years (three or longer years). undoubtedly capable of protecting the customer rights. Currently, about 145 organizations are officially qualified for the requirements. The said Act also restricts the range of applicable cases to the ones necessary for the public benefits. including the protection of the legal rights of the customer and the precaution against further damages. For the protection of the corporate defendants and prevention of the suitors" abuse of group litigation. the plaintiffs are fundamentally forbidden to institute second suit once the judgment is given against the them. For the protection of the rights of the customers and the smoothness of their lawsuit process. on the other hand. the Group Litigation law acknowledges the institute against the transgression of customer"s rights as the property-unrelated actions. reducing the lawsuit fee to ￦20,000,100. Such accommodation is an institutional measure to protect the rights of both the customer and the corporation, although it needs to be more and more refined in specific points, especially in regard to the standing to sue and the validity of the judicial decision. Even more essential than any other accommodating measures, however, is the consolidation of the producer"s morality on the producers" side and the proper conception of the safe-guarding the customer"s rights on the customer"s side because the law system is elaborated to accommodate the people themselves.

우리나라 치료감호법의 문제점과 개선방안

성경숙(Sung Kyung sook),김성돈(Kim Seong don) 성균관대학교 비교법연구소 2008 성균관법학 Vol.20 No.2

A great attention has been drawn recently to the offences committed by mentally disordered offenders, which make many serious social problems and give rise to public criticism. Eventhough these offenders are deemed to have no responsibility for their behaviours proved as results from mental illness, we have demanded constantly efforts to protect our society from the possible danger posed by the mental disordered who are not legally punished. Nowadays, we should change out point of view regarding mentally disordered offenders from the objects of penal commitment to be treated and protected for the sake of human dignity. This study attempts to identify problems in this area and find measures of improvement concerning the psychiatric institutions in Korea through the interpretation of law and actual analysis. Especially, on Forensic assessment about the competence of the mental disordered, contains the materials on treatability and dangerousness that is firmly decision making by risk assessment and custody standards in America. The disciplines most associated with research on treatability and dangerousness are important factors to examine the competence of mentally disordered offenders to detain in rehabilitative treatment or transfer from prison to hospital and community based treatment. Despite the significant reform in rehabilitative treatment, there still remains several problems. So it is suggested that some proposals be advanced in this field. For example, the treatment department for mentally disordered offender and drug abusers and alcohol addicts should be separated. We will focus that much efforts are given to protect society from dangerousness as well as secure the rights of mentally disordered offenders. Ultimately, the most successful empirical efforts in this study will be those that do not simply determine which laws work, but which laws work best and why.

판례로 본 국제적 지적재산권 침해 소송의 준거법 : 최근의 하급심 판결을 중심으로

문선영(Moon, Sun-Young) 성균관대학교 비교법연구소 2008 성균관법학 Vol.20 No.3S

Recently, as part of the influence of globalization, many international intellectual property rights infringement cases have been brought in Korean courts. In international civil cases relating to the infringement of intellectual property rights, many difficult legal issues arise beyond those that are present in cases regarding general tangible property. Among other things, choice of applicable law is an essential issue in the international protection of intellectual property in that it can directly influence the means, extent and contents of protection of intellectual property. Although there have been many cases regarding this issue in foreign countries, in international intellectual property rights infringement cases our courts have generally applied Korean law only, and choice of law issues have rarely been ruled on by the courts or asserted by the litigants. However, the significance of choice of law issues in intellectual property rights infringement cases has increased internationally, and many requests have been made for the Korean courts to establish some principles in respect of this issue. Especially this year, unprecedented number of cases regarding choice of law issues in international intellectual property cases have been brought before the lower courts. Therefore, this study analyzes distinguishing features on international intellectual property infringement cases and attempt to identify standards for judging the choice of law in such cases.

한국은행의 조직 및 기능과 그 법적 문제점에 관한 고찰

고동원(Ko, Dong Won) 성균관대학교 비교법연구소 2009 성균관법학 Vol.21 No.1

The role of a central bank in a country is great and important. Typically, a central bank conducts monetary and credit policy and through that, pursues price stability in a country. In addition, a central bank performs the function of a lender of last resort, which is very important especially during the period of financial and economic crunch, as seen in Korea during the latter half of 2008. In some countries, the function of a central bank expands into financial stability or financial market stability, which becomes a hot issue in Korea during the recent financial crisis. In Korea, the Bank of Korea acts as a central bank, and conducts monetary policy, including the function of a lender of last resort. But, yet, it is generally understood that the Bank of Korea Act does not confer to the Bank of Korea the function of financial stability as one of its establishment purpose, although that issue has been raised since the recent economic and financial crisis. This article is to review some legal issues in relation to the various functions of the Bank of Korea under the Bank of Korea Act, and to suggest some recommendations from the legal perspective. First, the current Bank of Korea Act provides that it only applies to banks and bank holding companies, but does not include special banks (such as the Korea Development Bank and the Industrial Bank of Korea) and other financial institutions (such as a credit union's association and a savings bank's association), as its applicable financial institutions, although those banks and financial institutions are subject to the Bank of Korea Act in certain areas according to their respective establishment laws. Thus, it is recommended that for more clarification, those special banks and financial institutions be included in the scope of the applicable financial institutions under the Bank of Korea Act. Second, since the scope of the permitted foreign exchange business under the Bank of Korea Act is not clear, it is controversial whether the Bank of Korea may engage in such foreign exchange business permitted by the Foreign Exchange Transaction Act. So, it is desirable to clarify the scope of the foreign exchange business permitted under the Bank of Korea Act. Third, the scope of the financial institutions subject to open market operations, currently prescribed by the Bank of Korea's regulations, should be clearly inserted in the Bank of Korea Act. Fourth, the system for sharing of financial information among the Bank of Korea and other relevant financial government departments and regulators, including the Ministry of Strategy and Finance and the Financial Services Commission, should be improved. For example, it should be considered to set up an independent financial information sharing council or agency, which will facilitate financial information sharing more efficiently, and further to include the Financial Supervisory Service and the Korea Deposit Insurance Corporation as one of financial information sharing institutions, respectively.

히말라야 約款의 效力에 관한 比較法的 考察

김영주(Kim Young ju),최준선(Choi June sun) 성균관대학교 비교법연구소 2007 성균관법학 Vol.19 No.3

The Himalaya clause typically appears in the ocean carrier"s bill of lading. The Himalaya clause is any clause in a bill of lading that seeks to extend to a non-carrier, such as a stevedore, a terminal operator, a drydock company, any defense, immunity, limitation, or other protections the carrier receives under the Hague and Hague-Visby Rules or other domestic laws. This clause arose as the result of a decision of the English Court of Appeal in the case of Adler v. Dickson (The Himalaya), but the problem of the Himalaya clause is that a person may benefit from the terms of a contract into which he has not entered. At the English law, traditionally, it would not suffice simply to say that the third party was to be protected, or that he was to be deemed to be a party to the contract. But the Himalaya clause was considered in the Eurymedon and The New York Star, where it was held to be capable of protecting the third party. United States law on the topic of the Himalaya clause began when the 5th Circuit was confronted with A.M. Collins v. Panama Railway. Collins allowed a third-party, a railroad, to benefit from the limitation contained in the bill of lading. But the U.S. Supreme Court in Robert Herd v. Krawill Machinery overruled Collins, and put a stop to third parties benefiting from exculpatory clauses in bills of lading to which they were not a party. A more liberal understanding of Himalaya clause has been demonstrated by the U.S. Supreme Court in its decision of 2004, in James N. Kirby Pty. Ltd. v. Norfolk Southern Railway Co. Under the German law, the validity of the Himalaya clause was based on the contract for a third party. A Stevedore or a terminal operator can undoubtedly rely on a bill of lading clause extending the carrier"s limitations of liability to third parties, because section 328 of the German Civil Code explicitly permits contracts for the benefit of a third party. Therefore, the obstacle that the English third-party beneficiary rule creates in Commonwealth countries simply does not exist. France has solved the problems related to the Himalaya clause by enacting exemplary legislation governing the liability of stevedores. The Law of June 18, 1966 of France. at art. 53 establishes the basis of the stevedore"s liability, while proving five exceptions which may nevertheless be overcome if the plaintiff proves that the loss or damage was due to the fault of the stevedore or of his employees. In Korean civil law, like Germany, it is the contract for a third party, section 539 of Korean Civil Code. that is a useful legal ground of the acceptance of the Himalaya clause. Therefore. under the Korean law a Himalaya clause is valid as the contract for a third party. The contract for a third party may solve the problems related to the Himalaya clause cases. Recently, the Himalaya clause was upheld in the 2007 Da 4943 decision by the Korean Supreme Court. The Hague-Visby Rules do not deal with the Himalaya problem effectively because of its coverage of servants and agents of the carrier (such servant or agent not being an independent contractor). Although the Hamburg Rules do not include the exclusion of an independent contractor, it can"t solve the Himalaya problem completely. But UNCITRAL"s new convention draft instrument dealing with ""door-to-door"" contract of carriage perfectly solve the problem of the Himalaya clause. Nowadays, the validity of the Himalaya clause is recognized in most jurisdictions. So, it is clearly an important issue that requires an international solution. Therefore, we must keep an eye on the Himalaya clause and its acceptance.