호주제도 폐지 이후 신분등록제도의 입법방향

윤동원 충북대학교 법무대학원 2006 국내석사

In our civil law, particularly family law, there was a patriarchal family registry system (so-called “Hojuje”) which was introduced during japanese imperialism and colonialism in order to compel chosun-dynasty to follow the feudal system of japanese Emperor. Irrespective of this historical facts, we tend to regard this preexisted patriarchal family registry system (Hojuje) as traditional and worth conserving. But in the long argument, at the year of 2005, the Constitutional Court ruled that the patriarchal family registry system(Hojuje) runs counter to the Constitution. The 6-3 ruling will help the government and the ruling Uri Party obtain approval from the National Assembly for a bill to scrap the registry system. However, the constitutional court said the relevant laws remain valid until a revision is made within the limit of 2008 year. The court said some of the provisions on civil[family] law regulating the registry system are incompatible with the Constitution as they violate the rights of human dignity and gender equality in family affairs. From this point of view, it is high time that we should discuss and decide a new status registry system resulting from the constitutional court's decision abolishing the old patriarchal family registry system. it is necessary and possible for us to argue which type of status registry system is favorable and acceptable to us considering our sense of law and criteria of justice. As which we can find from inquiry into history of family system, the form and function of family varies according to the alteration of society, and at last the legal system regarding this issues changes altogether. We should pay attention to the basis and ground on which the constitutional court ruled this system as unconstitutional - gender equality, human dignity, personal rights, privacy and democratic relationship among family members. Starting from this issues, we can judge and decide the legal system of family law - a new status registry system.

주택법상 주택관리에 관한 위임입법의 문제점과 개선방안

김광영 충북대학교 법무대학원 2013 국내석사

This thesis is suggested for Housing Act's controversial point and the improvement scheme as the principle of law reservation and the principle of delegated legislation prescribed in the Housing Act. To correspond to rapid social change flexibly, the National Assembly legislates the Law that reaches to the nation's right and obligation importantly and the Law needs to be delegated to the Administration on definite contents not having legislate as the Law. Although the delegated legislation will be possible, but it isn't broken away from general rule of constitutionalism, sovereign power, and parliamentarism. In the present, Multifamily Housing management is a matter of concern and an interest of our nations because 64 percent of our nation's inhabitants is living in the Multifamily Housing and the Multifamily Housing is 71 percent of total house. The Housing Act managing Multifamily Housing was come under fundamental law as the public law. But in the Housing Act, qualification and terms of the members of a delegation of occupiers, the duration of warranty, the obligation of manager, management method to the delegation of occupiers, are being delegated. These delegated legislations will deviate from a limit of the delegation because these legislations isn't only definite authority in the higher law but also the delegated contents is a very comprehensive. Specially without definite authority in the delegation law, contents limiting the freedom of contract severely were being regulated by administrative rule and the administrative office is imposing penalty when the people violated the rules. This thesis investigated constitutional limit of the delegated legislation and legal characters of the supplementary legislation to resolve the same problems as above mentioned. And this thesis was suggested for improvement plans by the researching on the Housing Act's clause which violated delegated legislation's limit and the legislation system.

주민소환제도에 관한 분석 및 개선방안

이윤하 忠北大學校 法務大學院 2013 국내석사

the advent of local self-government is inevitable and the success of local autonomy depends on the quantity and quality of citizens participation. This study makes a survey of the system of citizens participation as the necessary condition for ideal local autonomy, especially draws importance and necessity of the recall and suggest the problem of the current system and improvement for ideal recall system. Without citizens participation in a contemporary society, representative democracy is in a serious state of crisis in a local self-government. the act of corruption, neglect of duties, misconduct in office conducted by elected representatives such as provincial governors and local council members picked by inhabitants who are not angels caused feud and conflict over all the society as well as the increase of administrative expenses through wasteful spending, but the control of citizens did not take place. To solve these problems, 'the law on the recall' established in May of 2006 should be amended its procedure and grounds for ensuring more citizens participation as well as preventing abuses. The recall applies to only the heads of local adminstration and local council members, but it is so restricted that superintendents of Office of Education who elected by direct election since 2007 and assemblymen picked by proportional representation should be included, because they have the same position and power. In addition, the recall is related to the overall estimation or reliance on public servants and therefore it is not meaningful to describe individual causes in the law. If the government restricts recall attempts by using abstractive and indefinite concept, it is distorted as the judicial process and the judicature is in a political turmoil. It depends on voters whether or not the official should be recalled. This is the basic intent which legislation precedents which do not restrict recall attempts and the key of the recall. Like other democratic system, the recall has a negative function as well as a positive function. Accordingly, in the process of recall, it is needed to examine obscure clauses synthetically and complement them so that it can minimize the possibility of abuses and encourage citizens participation. The recall to improve democracy and responsibility of local administration should take root in Korea and become an opportunity to establish local autonomy.

現行 公職選擧法의 電子投票制度에 관한 分析 및 改善方案

김선희 충북대학교 법무대학원 2013 국내석사

The most basic judgment standard for the assessment of the election system depends on how much it contributes to exert the sovereignty of people. The convenience and rapidity of electronic voting are deemed to be the election system that can greatly contribute to exert the sovereignty of people. However, we have still used the paper voting system that is one of the most primitive voting methods. The consumptive and repetitive budget has been spent for complex procedures, difficulties in production and management of ballots, installation of ballot count locations, and absentee mail voting management. The need of electronic voting introduction may be considered along with a social change. The society has been increasingly diversified by the universalization of internet and smart phones, while the voting system has still maintained the conventional method. Thereby, it has produced various problems: decreasing turnout, high election expenses due to primitive voting and counting, occurrence of unintended invalid votes by a mistake of electors, the possibility of incorrect ballot count due to long-term ballot count, the rapidity of ballot count for the public right to know, and the need of direct democracy introduction. As the environment has been seriously destructed, the whole of global village has produced various policies for environmental protection. Therefore, it is required to consider the environmental aspect arising from ballots that are produced under the unpredictable state of turnout every elections. Due to these different needs, the developed countries such as U.S.A, England, and Japan are using a variety of electronic voting, including touch-screen electronic voting. Various countries in Southeast Asia, that are politically underdeveloped, are also planning to introduce electronic voting. As aforementioned, the touch-screen electronic voting system needs to be introduced by all means. But, its availability must be examined within the range of the basic principles of the constitution before introduction. Therefore, this paper studied that the election system would comply with the basic principles of the constitution. The provisions of the Public Official Election Act are judged to meet the constitutional compliance requirements for the introduction of electronic voting system due to the following reasons. Article 278 of the Public Official Election Act stipulates that the secret of voting must be guaranteed in the introduction of electronic voting system according to the principle of secret ballot. In addition, the Article emphasizes that electronic voting should be publicized through advertisement such as notice distribution and media source for voters to recognize electronic voting. Therefore, it focuses on harmonizing with the principles of universal suffrage so that voters from all walks of life can easily use the electronic voting system. Finally, the Article specifies that exact counting of the number of votes by political parties or candidates should be guaranteed, including verification of voting results, correction of vote error, prevention of invalid votes, accuracy of other votes, and attendance of political parties or candidates. Therefore, it stipulates the verifiability for the whole process of voting and counting and the fairness of election. As specified in the Public Official Election Act that takes precedence over the Rules on the Management of Public Officials Election that stipulate technical requirements about the electronic voting system, the Article is judged to define the principles of secret ballot and universal suffrage and the details of verifiability. However, the Public Official Election Act defines that technical requirements about electronic voting and counting should be regulated according to the National Election Management Commission Regulation. Main matters regarding conventional paper voting and ballot counting are specified in the Public Official Election Act. Therefore, it would be more desirable that essential matters in electronic voting and counting are specified as a special regulation in the Public Official Election Act rather than the National Election Management Commission Regulation, or enacted as a special law of electronic voting. It hasn’t been long since Bank ATM (Automated Teller Machine) was generally used in our society. There were many people who complained about inconvenience in the beginning. However, most people are feeling about the convenience of Bank ATMs installed near their homes. People, who don’t know how to use Bank ATMs due to information gap, use bank windows. As such, if we wait until the perfect election system is introduced from the beginning, we may not use electronic voting forever. It will be the best way to gradually introduce the new election system to reelection and by-election, continuously supplementing problems arising from the application of the system that uses both conventional paper voting and electronic voting. The method is to introduce the electronic voting system by the way that supplements a place with many passersby as a polling place in the absentee ballot system based on the integrated electoral list introduced in the reelection and by-election in the first half of 2013, and carries out both paper voting and electronic voting. At present the reliability of security for electronic voting through internet and so on has not been completely built. Even if the intention of electors may be hacked, forged, or falsified by electronic election, it would be more desirable to introduce the touch-screen electronic voting system gradually from reelection and by-election until the universal voting system is introduced even if voters may feel a little inconvenient at first. That is because all social phenomena cannot be developed without introducing and using by anybody.

소방업무의 법적 문제점과 개선방안

신정식 충북대학교 법무대학원 2013 국내석사

The fire department always tries to protect the citizens using a facility from fire by strictly enforcing that the owner of the facility installs fixed fire fighting equipment for the common good. However, sometimes owners do not comply with this requirement due to the economic burden even when they agree with the need to strengthen the safety equipment of the facility. When enacting fire-related provisions in a building code, retroactive regulations have often been issued without considering their future implementation. This study has been conducted on order to investigate problems in the fire services and to suggest improvements. Fire services are field oriented services which are one of the main emergency services. Fire fighters fight against dangerous situations at the scene of an accident by putting their own lives at risk to save the lives and property of others. Firefighters are supposed to arrive on the scene within five minutes of the alarm, and they have to be prepared to respond to disasters which can strike at anytime. They are also required to have expertise in various fields since they have the duty of performing life saving work in times of disaster. Improvements of legal issues concerning the fire service are as follows: 1. In terms of the improvement of retroactive codes: people who use multi-use facilities everywhere in the country have the right to a safe facility that meets strict safety standards. For that reason, the costs that the facility owners have to spend for the enhancement of fixed fire fighting equipment are justified for the protection of that right. In addition, it is desirable to revoke the business license of owners that do not meet these requirements rather than to disclose their names since that could violate their human rights. 2. In terms of the improvement of the execution of the legal process: the concept of the public interest is not judged by the firefighters who are on the scene. The public interest should be determined on the basis of specific conditions and circumstances, and the common good of society should be oriented in a way that will benefit the society as a whole. In order to limit personal interest, legitimacy should be granted to the concept of public interest, and at the same time, the conflict between public and private interests should be eliminated. 3. In terms of the improvement of emergency services: Often, the lives of emergency patients are threatened. Thus, they are in the need of special care until they arrive at a hospital since a slight negligence may be a cause of more serious problems. In the case of the deterioration of a patient's condition caused by negligence of duty or by not following the instructions and manuals for firefighting equipment, firefighters can be help responsible. For that reason, they should ensure their compliance with safety regulations and follow all relevant safety regulations. 4. In terms of rescue tasks and fallen firefighters: According to Article 5, paragraph 1, No. 1 of provisions relating to installation and operation of National Cemetery, firefighters who die in the line of duty, such as by rescuing citizens, fighting against fire or during simulation training, are eligible for burial in a National Cemetery. This provision should be revised to match the Fire Officers Act which includes firefighter deaths in the line of duty or education as eligible for interment at National Cemetery. Public administration has changed as fast as society changes. The legal and institutional framework of fire services have undergone significant changes in accordance with changes in society. Now, it is necessary to extend the scope of firefighters falling in the line of duty in order to allow them to perform their duties better at the scene of a fire. Furthermore the issuance of retroactive legislation should be considered carefully. Lastly, further research on the legal problems of fire services is necessary.

부동산중개수수료 제도의 문제점과 개선방안

이청해 忠北大學校 法務大學院 2013 국내석사

The purpose of this study is to indicate a problem for closing costs system of licensed real estate agents as experts of real estate brokerage business, to establish healthy transactions in real estate through the system’s improvement plan, and to aim at the development of the real estate brokerage business. It can be said that the real estate brokerage system takes a large portion in the real estate market along with national economy’s growth. Although the real estate brokerage field takes a considerable range of national economy in scale and has close relationships with people’s lives, since the closing costs system has a lot of problems, it a sad reality. Meanwhile, as nation’s economy has developed, the scale of the real estate market has become bigger and more diverse and the cost of transaction also has become higher. So, the transaction has come to need a reliable institutional strategy between transaction parties themselves or between transaction parties and real estate brokers. But, since our country’s real estate brokerage system is still insufficient in many parts, confusion and falling behind of the real estate market have been brought about, and today’s phenomenon is that legal real estate transactions are not made. Accordingly, our government enacted Real Estate Brokerage Act, introduced the licensed real estate agent system, and reorganized the commission system several times to supplement imperfection. Nevertheless, public confidence of the real estate brokerage has not been better. Also, though 30 years have passed since the Real Estate Brokerage Act enforced, our country’s real estate brokerage market still not only falls behind compared with other similar types of businesses, but also amateur brokers are disturbing this market regardless of the enaction of the real estate brokerage system. The real estate brokerage is prescribed in the first section of the second article of 「Real Estate Brokerage Agent’s Task and Real Estate Transactions’ Report Act」like this, “By the prescription of the third article of this Act, real estate brokerage means those kinds of aiding actions regarding gains/losses changes from sales, exchanging, rental, and other rights between transaction parties about the brokerage objects.” 「Real Estate Brokerage Agent’s Task and Real Estate Transactions’ Report Act」, the name itself makes an impression of a hurriedly made law like it burdens the real estate agents with the duty to report the real transaction prices which our government needs, rather than the Act makes real estate agents have status and pride, and in terms of its contents, it stipulates that the real estate agents are described as just dealers not experts. The task range is too narrow for real estate brokerage to be raised as a specialized job. And, as the closing costs system falls behind, it is hard to its corporatizing as well as managing. Also, the brokerage contraction system and the real estate transaction network are not satisfactory, and there are several problems such as mass production of unlicensed brokers, lack of self-regulating rule of Association of Real Estate Brokers, and so on. Especially, the real estate market becomes diverse according to the change of time. However, the closing costs system is still in the structure of the past. By analyzing the problem of the closing costs which can be said as the core of the real estate brokerage and studying the improvement plan, it is intended to provide the foundation for advancing of the real estate brokerage system. In this study, through theoretical consideration of the closing costs system, concept and legal nature were argued; transition process of the closing costs system was investigated. And, the closing costs were compared with other businesses parts’ commission system related with the real estate. Also, from investigating present condition of closing costs rate’s regulation, thinking about matters to be referred in our laws, the calculating problem in the closing costs system, the maximum regression rate system, setting-up the limited amount of brokerage except houses, commission of goodwill value, and brokerage commission dispute problem were studied. The solution is that improvement through the revision of the Real Estate Brokerage Act, closing costs system’s improvement, brokerage payment’s liberalization and realization strategy, improvement of setting-up the limited amount of brokerage except houses, improvement of brokerage commission dispute’s settlement. And, based on these, this study was conducted. 본 연구의 목적은 부동산중개업전문가인 공인중개사의 부동산중개수수료제도에 대한 문제점을 지적하고 그 개선방안을 통하여 건전한 부동산거래를 확립하고 부동산중개업의 발전을 기하고자 하는데 있다. 국가경제의 성장과 더불어 부동산중개업제도는 부동산시장에서 차지하는 비중이 매우 크다고 할 수 있다. 부동산중개분야가 규모면에서 국민경제에 차지하는 비중이 크고 일반 국민의 삶과 아주 밀접한 관계를 가지고 있음에도 불구하고 부동산중개수수료제도가 많은 문제점이 있어서 안타까운 현실이다. 한편, 국가경제가 발달함에 따라 부동산시장의 규모가 거대화․다양화되어 가고 있으며, 거래금액도 고액화 되어가고 있으므로 부동산거래는 거래당사자 간 또는 거래당사자와 부동산중개업자간에 신뢰할 수 있는 제도적 장치가 필요하게 되었다. 그러나 우리나라의 부동산중개제도는 아직 많은 부분 미흡하여 부동산거래시장의 혼란과 낙후성이 초래되고 있으며, 합법적인 부동산거래가 이루어지지 않고 있는 것이 오늘의 현상이다. 이에 따라 정부는 부동산중개업법을 제정하여 공인중개사제도를 도입하고 부동산중개제도의 운영상 나타난 미비점을 보완하고자 여러 차례에 걸쳐 수수료체계 등을 정비하였지만 아직도 부동산중개업의 공신력은 별로 나아진 것이 없다. 또한 부동산중개업법이 시행된 지 30여년 지났지만 우리나라의 부동산중개서비스시장은 아직도 다른 유사업종에 비교하여 낙후되어 있을 뿐만 아니라 공인중개사제도가 도입은 되어 있음에도 불구하고 비전문가들이 중개시장을 어지럽게 하고 있는 실정이다. 부동산중개란 「공인중개사의 업무 및 부동산 거래신고에 관한 법률」 제2조 제1호에 “이 법 제3조의 규정에 의한 중개대상물에 대하여 거래당사자간의 매매․교환․임대차 그 밖의 권리의 득실변경에 관한 행위를 알선하는 것을 말한다.”라고 규정하고 있다. 「공인중개사의 업무 및 부동산 거래신고에 관한 법률」은 그 명칭부터가 공인중개사로서의 위상 및 자긍심을 갖게 해주는 것보다는 정부가 필요로 하는 실거래가 신고의무를 공인중개사에게 부담시키려고 급조된 법률 같은 느낌을 주고 있고, 그 내용상으로도 전문직업인으로서 공인중개사가 아니라 업자로서 공인중개사로 규정되어 있는 법률이다. 중개업을 전문화된 직업으로 육성하기에는 업무범위가 너무 협소하고, 부동산중개수수료율체계가 낙후되어 있어서 경영압박은 물론 기업화도 어렵게 하고 있다. 또한 중개계약과 관련한 법령의 흠결, 부동산거래정보망의 미비, 무등록중개업자의 양산, 중개업협회의 자율적 규율성의 부족 등 여러 가지 문제점이 있다. 특히, 부동산시장은 시대의 변화에 따라서 다양화되어 가고 있는데 반해 부동산중개수수료제도는 아직도 과거의 틀을 벗어나지 못하고 있는 실정이다. 부동산중개업의 핵심이라 할 수 있는 부동산중개수수료에 대한 문제점을 분석하고 개선방안을 연구하여 부동산중개제도 선진화를 위한 기틀을 제공하고자 한다. 본 연구에서는 부동산중개수수료제도의 이론적 고찰을 통하여 그 개념과 법적성질을 살펴보았고 중개수수료제도의 변천과정을 조사하였으며, 부동산 관련한 타 업종의 수수료제도와 부동산중개수수료제도를 비교분석해 보았다. 또한, 외국의 부동산중개수수료율 규제현황을 조사하여 우리 법제에서 참고해야 할 사항을 연구해 보면서 부동산중개수수료제도 중 중개수수료 산정상의 문제, 상한역진요율체계, 주택 이외의 중개수수료 한도액설정, 상가권리금에 대한 중개수수료, 중개수수료분쟁의 문제에 대하여 연구하였다. 이러한 분석의 토대 위에서 공인중개사법의 개정과, 중개수수료 체계의 개선, 중개보수의 자율화와 실현방안, 주택 이외의 중개수수료 한도액 설정의 재검토, 상가권리금에 대한 중개수수료 개선책, 중개수수료 분쟁의 합리적 해결방안 등을 도출하고자 노력하였다.

陷穽搜査의 違法性 判斷基準 및 統制方案

박정희 충북대학교 법무대학원 2002 국내석사

생명보험에 있어서의 고지의무

윤광실 충북대학교 법무대학원 2002 국내석사

實效性있는 條例制定을 위한 法制 整備

김한기 충북대학교 법무대학원 2002 국내석사

연대보증제도의 운영현황과 개선방안

김종렬 충북대학교 법무대학원 2006 국내석사

After IMF situation, there have been a lot of cases, which the people standing surety for other's loan, become bankrupt occurring one after another in Korean society, thereby rising a serious problem with the joint and several guaranty. Before, Korea was generalized with banking practice that made a loan only if a surety is the 'security'. In this situation, as the cold wave of the IMF hit Korea, there were sudden increases in bankrupts, thus the cases that was dismissed for being a credit defaulter due to secured debt and committed joint suicide by a family due to living difficulties at all appeared in succession. Especially, because of 'Korean humanity', an acquaintance, a classmate and a colleague might give security for the joint and several guaranty. So, there were a lot of cases that a debtor's bankrupt continued to a surety, thereby extending to breaking of family as well as individual. Therefore, it brought about a large number of serious social problems such as that, by being unreliable to each other, the credit society could be floating and people fell into the bottomless pit of distrust. Even some researcher called the system 'the economical guilty-by-association system' or 'the hostage system' and had negative view on that itself, insisting that to have a risk of economical sinking by a surety without any counter-presentation is the infringement of pursuit happiness power and reputational right in accordance with the Constitution. The joint and several guaranty strongly press a surety in points of that it is not allowed supplementarity and discreet benefit unlike a simple guaranty. This system is surely for a creditor (financial agency), but both positive and negative function is coexisted in the same way as other system. While this is necessary to be used as an inevitable way to secure financial credit in a debtor's place, as above, there are also a lot of problems exposed in the system operation. Of course, the important task is to promote the systemic conditions for full satisfaction of debt by major debtor. This study aims to seek a plan to minimize operational problems, and, at the same time, to keep positive functions of the system. To do that, we analyzed the operational realities of the joint and several guaranty for credit transaction, and then, suggested systemic improvement plans for the problems from the system. Problems of the joint and several guaranty, which is not only today's matters, are appeared as serious social problems especially after the IMF situation. The system that financial institutions prefer it specially is very emphatic on the right of a creditor, namely financial institution, and really stingy to the protection of a surety in the aspect of that it has no the best right of defense, that of search, and no discreet benefit.The most apparent difference compared to other countries' legislations is that there is no stipulation to protect sureties in the contents. Considering this, theories and precedents are to provide the protection by interpretation but the extent of protection is considered to be minimal compared to other countries and it is considered that there is limit in it. That is, limiting the range of guarantee liability considering the intention of relevant person should be done within the range of the theory of the interpretation of declaration of intention thus there must be limitation. Also, although the principle of faith is functioning not only as the criterion of the interpretation of legal actions but also as a means to control the contents, there are many potentiality to be criticized such as that the application of the principle of faith in limiting the liability of guarantee may hurt the soundness of law or that the judgement may be made by the will of judges. Considering all these aspect, it can't be denied that the sureties under the civil law of our country is in quite unfavorable position compared to the sureties in other countries. Here, as can be seen in other countries' law, the right of argument about notification and the right to argue about search should be acknowledged partially based on the cases and it is desirable that the case that the reported loss by the succession of guarantee debt that is a system operated only in Asia area such as our country and Japan disappears. Also, like in the civil law of Swiss, it is desirable the system that requires the agreement of spouse to make a guarantee contract is introduced and systemized. The joint and several liability on guarantee system has more negative functions rather than positive functions from the standpoint of consumers considering various aspects thus some people even consider it as a system that has to be improved or has to disappear but is a very useful system for businessmen or individuals with insufficient security giving the benefit of economic activities thus it is considered that a measure to supplement should be prepared to activate the system. To review adverse effects of joint and several liability on guarantee system by now, there are many cases that the problems arouse because the guarantees were provided just emotionally bound to the humanism without properly perceiving the legal responsibility. But since the perception on joint and several liability on guarantee system has been changed a lot as people experienced IMF, if the positive functions are vitalized and actively utilized, the system is considered to be able to play a key role in activating the people's economy. As the method to improve the problems owned by the joint and several liability on guarantee system, the role and function of credit guarantee insurance system are needed to be strengthened. And if the system of credit guarantee insurance is to be operated effectively, the funds from corporations or government are needed to be enlarged and stable management of the funds remains as a task. Also, to settle the system of guarantee insurance, the guarantee insurance company should be changed to a public enterprise and continuous financial support from government is needed. If joint and several liability on guarantee system is removed and no guarantee credit base loans can be operated though the establishment of credit infrastructure, it will be the best policy but it should be practically difficult considering the reality of our country. Here, with active improvement of the weakness of credit information infrastructure on government level, it is desirable that appropriate sureties provide the guarantee and the loans based on credit is activated to make the opportunity to advance the settlement of the society of trust of the advanced countries' level.