附款의 本質論을 바탕으로 한 그 구제론적 法理體系의 재구성

이상천(Lee, Sang-Cheon) 한국비교공법학회 2013 公法學硏究 Vol.14 No.1

一事不再理原則의 行政에서의 적극적 전개를 위한 試論

李相千(Lee, Sang-Cheon) 한국비교공법학회 2014 공법학연구 Vol.15 No.2

「법률상(法律上) 이익(利益)」개념의 한계(限界)

이상천 ( Lee Sang-cheon ) 한국외국어대학교 법학연구소 2010 외법논집 Vol.34 No.1

The definition of 'interest in law' has been formed as material subjective right to the administration, and has been projected onto the laws on the litigation and trial of administrative disputes. Thus, it is apprehended as in side of material law or as in side of laws on the litigation and trial of administrative disputes. Perhaps the above way of apprehension will be lasting afterwards. The 'interest in law' has been in position for the status of private individual to administration. The theory of interest in law will be ever improved till the basic human rights be contained within interest in law. But it is doubtful that the present system of administrative relief will be lasting long. For the theory of interest in law itself is blocking the advancement of positive administrative relief and has contradictory legal logic in itself which is that the legistlation takes almost all the private interests into consideration. Actually, it's not true. The law is not competent in all sides. The theory of interest in law insists that the legal rights shoud be based on the legistlation of the assembly, which means that the assembly dicides the zone of legal interests by discretion. We call it legistlative discretion. The theory of interest in law is law-centered, i.e. legistlative descretion-centered definition. It is self-contradicting by containing some basic human rights into itself. Thus, it is not proper or reasonable legistlation that one who has interest in law has standing on the judicial litigation and administrative trial of administrative disputes. Someday 'interest in law' will be alternated with the definition of 'valuable interest worth protecting in law' under the system of administrative relief in the center of which the basic human rights exist. These ongoing controversies on the zone of protection for private individuals are just only the way of thinking about the basic human rights by constitutional law. We had come from the world of 'right', have stayed too long at the world of 'interest in law', and will be in the world of 'value'. It is just the time that we should start the rearrangement of the system of administrative relief. In the heart of the new one will be the basic human rights by constitutional law.

부진정일부취소소송의 성립가능성론에 대한 비판적 고찰

이상천 ( Sang Cheon Lee ) 이화여자대학교 법학연구소 2013 法學論集 Vol.17 No.3

In my thought, the crititical discrimination of burden and ‘the others except burden’ would be wrong. Generally the case law and most of the theories say that only ‘burden’ has a different being seperated from the main administrative act and ‘the other supplementary clauses except burden’ belong to that. Under this mistaken premises, the case law and most of the theories have spread widely. The concept of litigation of impure partial cancellation appeared for control of supplementary clause against reasonability. The mistaken ‘dogmatik’ needs another wrong ‘dogmatik’ to support the previous one. Consequentially, we should treat ‘administrative act with supplementary clause’ as total one act and couldn`t separate supplementary clause from the main administrative act. Reluctantly, the threories thought out the so-called ‘litigation of impure partial cancellation’ to be able to control only just the supplementary clause without touching the main administrative act. In general opinion, ‘the other supplementary clauses except burden’ have no character of disposal. Thus they couldn`t be treated legally as an object of lawsuit. For the object with no character of disposal couldn`t be an object of lawsuit and be written as the text of judgment. Thus the theory of litigation of impure partial cancellation has the error in itself that an object with no character of disposal is taken as the text of judgment. To avoid that criticism, it says that the total ‘administrative act with supplementary clause’ is under legal trial and it has no problem in itself by that. But the expression ‘the total administrative act with supplementary clause is being taken under the legal trial’ doesn`t go with all the theories on the object of lawsuit in administrative litigation. If we try to cancell only just the supplementary clause by the expression of the text of judgment, it would be always just the ‘litigation of pure partial cancellation’, and it shouldn`t differ from that. If ‘the other supplementary clauses except burden’ have no character of disposal, we should say that we could not take them as an elligible object of lawsuit. Thus the theory of litigation of impure partial cancellation couldn`t solve the problem of character of disposal. In connection with the matter of character of disposal, this thesis says only that the theory of litigation of impure partial cancellation couldn`t be taken legally. But it doesn`t mean that the theory of litigation of pure partial cancellation couldn`t be taken legally. On the basis of recognizing character of disposal to every supplementary clause, we could take the litigation of pure partial cancellation for all supplementary clauses.

도시생태현황(Biotope등급)에 대한 公法的 檢討

李相千(Lee, Sang-Cheon) 한국비교공법학회 2016 공법학연구 Vol.17 No.2

國家賠償法 제2조 제1항의 立法論上 問題點

이상천(Lee Sang-Cheon) 행정법이론실무학회 2010 행정법연구 Vol.- No.26

According to the present State Compensation Act Article 2(1), the definition of 'private persons entrusted with public duties' falls within the 'public officials'. Thus the 'private persons entrusted with public duties' take no civil responsibilities against both the government's and the victims' side as far as without purpose or gross negligence by the above Act Article 2(3). But the 'private persons entrusted with public duties' which has independence on organization and operation should take the civil responsibilities for their prvious deeds. Just the principle of liability with fault should be adapted for their deeds. If not so, it means the violation of equity, and it leads to the government's financial overload, and the reduction of carefulness to prevent accidents. For the above reasons, the principle of liability with fault should be adapted widely even in the area of 'private persons entrusted with public duties'. Firstly, the 'private persons entrusted with public duties' in the above 2(1) means the ones which has independence of low degree below average in relevance with the government. The ones which has independence of high degree doesn't go into it on the above 2(1). The ones which has independence of comparatively high degree from the government should be ruled by the principle of joint-malfeasance liabilities if possible. And in the cases as against the highly independed ones the principle of joint-malfeasance liabilities should be applied as far as it goes. Even though in the above cases the clauses of 'State Compensation Act' should be applied, it could be interpreted that the 'private persons entrusted with public duties' should answer for what they had done regardless of gross negligence or not. Secondly, for the intention of legistlation according to the legal view which the court and academic circles went after, the expression of 'private persons entrusted with public duties' is inadequate. The expression of 'the private persons who could be measured as entered into administrative organs, in concrete cases, entrusted with public duties' would have been better for that meaning. Thirdly, However if the 'private persons entrusted with public duties' had no assets to pay for their liabilities to the errors, the victims couldn't be saved. Thus it is recommended that the legal steps making up the shortage of their paying abilities should be taken. In contracting of trusting public services, the way of liabilities apportionment should be fixed and it is recommended that the above private persons should take out a policy on the liability for what they did. The matter of gross negligence or not is not the one of scale of the compensation sum. The size of compensation sum doesn't go with the degree of negligence. Even though the 'private persons entrusted with public duties' committed a slight error, the size of government's compensation sum could be gross. The expression that the private persons should be free from liabilities regardless of the degree of negligence would overload the State and local government's finance. Finally, 'State Compensation Act Article 2(1)' should be revised.

국내 벤처기업의 업령(業齡)에 따른 성과 결정요인

이상천(Sang Cheon Lee),고봉상(Bong Sang Go),용세중(Se Jung yong) 대한산업공학회 2004 대한산업공학회 추계학술대회논문집 Vol.2004 No.11

법인처벌론(法人處罰論)으로서의 조직고의론(組織故意論)

이상천 ( Sang Cheon Lee ) 법조협회 2015 法曹 Vol.64 No.4

In any case, the action of a natural person who is a member of a corporate should be analyzed legally in the sense that it is one of the corporation``s activities. The constitutional court says that the corporate’ liability in relation with the meaning of joint penal provisions is not on the premise of its natural person’ crime. Thus the legal character of corporate liability is not a kind of vicarious liability but its own. If so, the theory of enterprise punishment within the framework of traditional theory of criminal law should be shown necessarily in consideration of the corporate’s own character. In the area of environmental administration, it is not a proper way of protecting environment from enterprise activities to place a greater emphasis on punishing natural person than on the corporate itself. A business organization has its own way of thought, and it exists apart from that of a natural person, a member of the corporate. There has been the theory of collective knowledge and the theory of organization model to control business activities by imposing criminal penalty on the corporate itself in United States of America. Besides, there has been the theory of business organization liability in Japan. The above theories say all the same thing that the corporate itself should and could bear the criminal liability. A nature person has little significance in influencing business activities and should be subject to the corporate’s command which is under the sovereignty of Jaebul, the group of enterprises. The focus should be on punishing the corporate itself in the area of environmental administration in which only the corporate itself reveals itself in the sense that its nature person has little significance in business activities. Actually as possible as can be, it is needed to develop the theory actively that the criminal punishment should be imposed on the corporate itself than on the natural person. And the theory should not hurt the principle of self liability in concern with imposing criminal punishment on the corporate itself. Under the establishment of the definition of organization knowledge we could regard it as a subjective illigal factor which should be needed for composing crime in case of a natural person. In conclusion, ‘organization knowledge’ should be composed as a tool of protecting our natural environment efficiently from the corporate’s enterprise activities.

‘더반 합의’ 하에서의 탄소배출권거래제도의 構想에 관한 經濟法論的 小考

李相千(Lee, Sang-Cheon) 동아대학교 법학연구소 2012 東亞法學 Vol.- No.54

‘더반 합의’를 비롯한 국제정세는 탄소배출권을 중핵으로 하는 교토체제에서 벗어나려는 것으로 보인다. 오히려 탄소관세가 중심이 되고 탄소관세를 피하기 위해 탄소배출권은 나름대로 보조기능을 수행할 정도일 것이다. 아마도 탄소배출권은 국제적 유통성이 중시될 것이 아니고 자국의 탄소규제에 봉사하는 정도의 개념으로 자리잡을 것 같다. 탄소배출권거래제도의 구상과 관련하여, 우선 법본질론적 입장에서 탄소배출권을 보면 원초적으로 공법적 규제를 많이 받을 수밖에 없는 개념이라 할 것이고, 따라서 유통성의 강화로 그 거래에 비중을 둘 것이 아니라 당초의 예정된 기능대로 ‘탄소배출을 할 수 있는 권리’ 라는 본연의 개념에 충실한 방향으로 입론되어야 할 것이다. 둘째, 탄소배출권의 기능상 산업경제에 직접적 연관파급효과를 미치게 될 것이고 산업의 신경이라 할 전력의 수급에도 직접적 영향을 미친다 할 것이므로 전력수급의 중요성에 비추어도 그 현업기관에 탄소배출권의 거래를 담당하게 함이 타당할 것이다. 셋째, 자본시장법상 탄소배출권 그 자체는 금융상품이 될 수가 없는 것이다. 입법례상 탄소배출권 자체를 금융투자상품으로서 금융규제의 대상으로 하고 있는 경우는 거의 보이지 않는 것은 환경보호라는 목적적 개념인 탄소배출권거래제가 투기대상으로 되는 것을 방지하기 위한 것이기 때문일 것이다. 우리의 경우도 현행 자본시장법상으로는 탄소배출권 자체를 금융투자상품이라 할 수는 없는 일이고, 이러한 결론은 탄소배출권거래제도를 입론함에 있어서 당연히 고려되어야 할 것이다. 한국거래소는 탄소배출권거래를 억지로 금융상품으로 만들지 않는 한 거래할 수 있는 기관도 아니다. 이상의 이유로 무리하게 현행법에도 없는 다른 입법을 해 가면서까지 한국거래소로 하여금 탄소배출권의 거래를 담당하게 할 것은 아니라 할 것이다. 오히려 탄소배출권의 현실적 기능을 직시하면 산업의 신경이라는 전력수급조절을 맡아온 전력거래소가 탄소배출권의 거래를 담당하고, 그 실무적 경험등을 토대로 지속가능한 산업경제의 조절작용을 해 나가게 하는 것이 타당할 것이다. The ‘Carbon Emission Credit Trading System’ is no more omnipotent under The “Durban Declaration on Climate Change”. The international situation is slowly coming out of ‘Kyoto-mechanism’ It’s time for carbon tax to be centered, and The ‘Carbon Emission Credit Trading System’ will carry just the subfunction to avoid carbon custom. Perhaps the international fluidity of Carbon Emission Credit in Carbon Emission Credit Trading System will be not so important, but be likely to remain as a subsidy. Concerned with the construction of Carbon Emission Credit Trading System, Firstly, in view of legal essentiality, Carbon Emission Credit should be established more under the influence of ‘public law’ rather than under that of private law. Secondly, In view of the function of ‘Carbon Emission Credit’, it would get to the industrial economy, and turmoil the system of balance of elctricity. Thirdly, the Carbon Emission Credit itself could be no more a financial commodity, Thus there is no reason for KPX to make treat it. In consideration of the real function of Carbon Emission Credit, the KPX should take th duty of trading Carbon Emission Credit. It would be natural for KPX to take the duty of trading Carbon Emission Credit, and it leads to harmonious supply and demand of electricity and peace in industrial.

공법 : 항고소송(抗告訴訟)과 국가배상(國家賠償)과의 기능적(機能的) 조화(調和)를 위한 시론(試論)

이상천 ( Sang Cheon Lee ) 한양대학교 법학연구소 2010 법학논총 Vol.27 No.4

In consideration of property continuance security in face of the phase of nontypical situation it is needed that we should elevate the practical use degree of Appeal Litigations. And the system of Administrative Remedies should be repaired to make it possible that State Compensation is managed more comprehensively than Appeal Litigations. Firstly, the Administrative Remedies should be divided into the two; one group which contains Appeal Litigations and State Compensation and the other ones which is destined to be treated according to the designated way via law or contract. it is unreasonable to divide them as Actions in Administrative Law and Compensation for Damage. The previous way of division enables the Administrative Remedies not to omit necessary remedies. Secondly, the leading idea of Appeal Litigations should be the continuance security of property. The concrete ways of fulfillment of it are the enlargement of Legal Interests in Administrative Law, the development of new unknown kinds of Appeal Litigations, the wide recognization of illegality conception in Appeal Litigations. Thirdly, the scope of remedies through State Compensation concerned with Reflexive Interests should be extended. It should be different from that of Appeal Litigations. Especially it is recommended that the requisite of protecting private inerests in duty performance is not necessary in the shape of State Compensation. it shoud be estimated as the reference material in measuring liability. Hitherto, the Actions in Administrative Law and Compensation for Damage which contains State Compensation and Compensation for loss has been discussed unconnectedly. Thus the Appeal Litigations and State Compensation have been treated unconnectedly each other in a degree. And There have been some deficits in the fulfillment of the constitutional idea of property continuance security in case of informal phase. By that, we have had no comprehensive consideration of the two. It is true that there have been some fragmentary discussions about the connection the two, but we have not taken into consideration the two mixingly in one. The two serves for just the one purpose of administrative remedy in case of informal phase. In this essay some problems of the two have been discussed. The Appeal Litigations should take the duty as the first remedies, and State Compensation should take the duty as the second ones. I hope that we could have great steps toward the legal theoretical development in Administrative Remedies via mixing the above two in case of informal phase.