防災行政法의 體系化에 關한 硏究 = (A) Study on the unification of laws dealing with disaster management

다국어 초록 (Multilingual Abstract)

People live unsure lives due to the different kinds of disasters that may come upon them. In this material civilization they may die insignificant deaths because of other peoples mistakes.
It is difficult to plan for the unpredictable disasters which threaten our lives.
In order to ensure our safety and dignity and enable us to carry on safe lives we need to be prepared for disasters and emergencies as well as learn about our own safety and be conscious of it. Protecting people from disasters and encouraging a safety consciousness is the duty of the disaster management administration as well as their superiors. But after having gone through some disasters we realize that we are not as prepared as we should be. We are not punctual or as swift as we should be in response to a crisis and co-operation between administrations is inefficient. We are not at the same level other advanced nations are. Problems about responding to disasters lie in the areas of : coming to terms with, rescuing and recovering people, disaster administration, and the systems of organization.. People are not well educated about the principles of rescue, reaction, emergency medicine, or even common sense. There are over 70 different laws dealing with disaster management and the legislation is varied. Both the working and the organization of the administration are significantly flawed. There is not even a definition for disaster defined in the basic laws. These days both natural and man made disasters are defined separately and their related departments are also separate. Prevention, swift reaction time, good organization, institutional co-operation, use of the mass media, the inclusion of non governmental organizations, and using local people is very significant in the formation of a disaster management law. This law is the most important part of the administration. However as mentioned earlier we don't have a law to unify the separate disaster ordinances. As the system is so disjoint there is a lot of inefficiency and waste especially in the area of administration.
What is the number one problem?
Self-government.
If the jurisdiction is different from the area of the disaster then assistance is not given as swiftly or as efficiently as it could be. This is in great contrast to the police offices and the public prosecutors office which operate through out with co-operation. Even if the disaster management is set up the same way as other investigating institutions for protecting people's lives, bodies, and property ironically it still cannot face the reason for the disaster directly. In the recovery operation in a disaster the actual recovery is often delayed and furthermore disasters repeatedly occur in the same places. Especially in the case of natural disasters what causes delays in compensation and recovery are complicated administration procedures and other organic problems. This is because the relative laws are intermittent and not unified. A further problem is that disaster management law is not as refined as other areas of law. However in the name of risk management a lot of research and thesis are published under the laws for science administration.
The aim of this study is to try to establish a fundamental law for systematic interpretation, application, and administration for disaster management which is now composed of 70 different laws, the most important of which are separated by establishing special administrative laws similar to those used by the police. So I try to relate news items where administrative institutions suffer jurisprudence. We have examined the constitutional protection of fundamental rights and the constitutional rules of our state after considering the historical meaning and types of disaster management. After all we cannot discuss disaster management law without examining the theory and regulations of constitutional laws and after considering the current situation of the disaster management laws in our country. I ave also examined the laws of other countries.
We consider the value of local responsibility of disaster management organizations in the planning and prevention steps in the first section of the third chapter and in the second section which is where we try to connect the behavior of the organization and the valuation with jurisprudence. The third section deals with recovery where we examine the behavior, form, organization, valuation and the local responsibility in the administrative process.
In the fourth chapter I tried to clear the subject of this thesis referring to the systematization of the disaster management law necessary to establish a fire department and the necessity of a fundamental disaster management law. I researched records, actual places, and cases dealing with constitutional law, administrative law, and social security laws interpreted to relate to the disaster management law.
The research methods of this thesis are in the analysis of actual conditions, constitutional definitions, jurisprudence and the system of administrative law, and literal consideration of the actual conditions of other countries. I selected what we call moveable ways which connect reality with jurisprudence by interviewing public officials in their actual places trying to connect problem consciousness with the regulations and jurisprudence. I extended the breadth of this research to include constitutional definitions, jurisprudence, separate regulations, the social security law and risk management.
Finally the depth of this research was extended as far as special features, the function of special laws, the collection of jurisprudence, related cases and the system of disaster management in other countries.

목차 (Table of Contents)

• 목차 = ⅰ
• Abstract = ⅶ
• 第1章 序論 = 1
• 第1節 硏究의 目的 = 1
• 第2節 硏究의 範圍와 方法 = 3
• 第2章 防災行政法의 一般論 = 7
• 第1節 防災行政의 類型과 歷史的 考察 = 7
• Ⅰ. 災難의 意義와 種類 = 7
• Ⅱ. 防災行政의 過程과 類型 = 12
• Ⅲ. 防災行政의 歷史的 考察 = 19
• Ⅳ. 防災行政法의 意義와 性格 = 22
• 業2節 防災行政法의 憲法的 根據 = 25
• Ⅰ. 基本權保讚義務論 = 25
• Ⅱ. 우리 나라의 憲法規定 = 46
• 第3節 現行 우리나라 防災行政法制 = 51
• Ⅰ. 國家의 保謹義務와 防災行政法制 = 51
• Ⅱ. 國內災難에 대한 防災行政法 = 53
• Ⅲ. 海外災難에 대한 防災行政法 = 95
• 第4節 外國의 防災行政法制 = 97
• Ⅰ. 日本 = 97
• Ⅱ. 美國 = 110
• Ⅲ. 英國 = 120
• Ⅳ. 프랑스 = 128
• Ⅴ. 獨 逸 = 131
• Ⅵ. 스위스 = 138
• Ⅶ.較 檢討 = 140
• 第3章 防災行政法의 內容과 法理檢討 = 143
• 第1節 計劃 · 豫防段階에 있어서 防災行政法의 內容과 法理檢討 = 143
• 제1항 計劃 · 豫防段階에 있어서 防災行政組織 = 143
• Ⅰ. 民防衛協議會 = 143
• Ⅱ. 災害對策委員會 = 145
• Ⅲ. 安全對策委員會 = 146
• 제2항 計劃 · 豫防段階의 防災行政의 行爲形式 = 148
• Ⅰ. 計刻段階에 있어서 防災行政의 行爲形式 = 148
• Ⅱ. 豫防段階에 있어서 防災行政의 行爲形式 = 160
• 第2節 對應段階에 있어서 防災行政法 = 201
• 第1項 對應段階의 防災行政組織 = 201
• Ⅰ. 災難의 申告와 狀況管理 = 201
• Ⅱ. 災難 · 災害의 對應緝織 = 205
• Ⅲ. 緊急救助體系 = 211
• Ⅴ. 防災行政組織間의 共助로서 行政應援 = 219
• 第2項 對應段階에 있어서 防災行政의 行爲形式 = 221
• Ⅰ. 災難現場에서의 應急措置 등의 下命 = 221
• Ⅱ. 防災行政法上 人命救助行爲등의 事實行爲 = 224
• Ⅲ. 컴퓨터에 의한 氣象豫報 · 自動警報 둥의 行政自動化作用 = 227
• Ⅳ. 待避命令 · 障碍物除去 등의 行政上義務履行確保手段 = 228
• 第3節 收拾 · 復舊段階에 있어서 防災行政法 = 232
• 第1項 收拾, 復舊段階의 防災行政組織 = 232
• Ⅰ. 自然災害의 경우 = 232
• Ⅱ. 人爲災難 = 236
• 第2項 收拾 · 復舊段階에 있어서 防災行政의 行爲形式 = 237
• Ⅰ. 權力的 行政作用으로서 營業停止處分등과 特別災難地域宣布 = 237
• Ⅱ. 災難復舊支援과 行政私法論 = 241
• Ⅲ. 災難 등을 야기시킨 者에 대한 行政上 義務履行確保手段論 = 244
• 第4節 防災行政法上 行政救濟에 관한 法理檢討 = 253
• 第1項 保護請求權의 主觀的 公權性 = 254
• Ⅰ. 裁量權의 收縮理論 = 254
• Ⅱ. 防災行政法上 國家의 責務와 行政介入請求權 = 256
• Ⅲ. 行政行爲發給請求權 = 261
• 제2항 損害塡補 = 262
• Ⅰ. 消防援助者에 대한 補償 = 263
• Ⅱ. 豫防接種被害補償 = 265
• Ⅲ. 民防衛隊員의 災書등에 대한 報償 = 268
• Ⅳ. 산불管理統合指針에 의한 산불鎭火 參與者에 대한 報償 = 268
• Ⅴ. 災害從事命令으로 인한 負傷 등에의 補償 = 269
• Ⅵ. 災難現場에서의 職務以外로 他人에 대한 救濟와 義死傷者保護法 = 271
• 第3項 行政爭訟 = 272
• 第4項 憲法訴訟 = 284
• 第4章 防災行政法의 體系化論 = 286
• 第1節 防災行政法의 問題點 = 286
• Ⅰ. 防災行政組織法上의 間題點 = 286
• Ⅱ. 防災行政作用法上의 問題點 = 288
• 第2節 防災行政基本法의 立法論 = 294
• Ⅰ. 防災行政法의 體系化 = 294
• Ⅱ. 防災行政基本法의 立法方向 = 295
• Ⅲ. 立法論으로서 防災行政基本法의 內容 = 299
• 第5章 結論 = 300
• 防災行政基本法의 立法案 = 304
• 參考文獻 = 343