판례연구 : 일반 행정법상 당초처분과 감액처분의 법리 검토 -대법원 2012. 9. 27. 선고 2011두27247 판결을 중심으로-

류광해 ( Kwang Hae Ryu ) 홍익대학교 법학연구소 2013 홍익법학 Vol.14 No.3

검토 대상판결인 대법원 2012. 9. 27. 선고 2011두27247 판결은, 부당이득금 환수와 관련하여 당초처분을 감액하는 처분이 이루어진 경우 징수의무자가 다투어야 하는 소송의 대상은 ‘감액처분에 의해 감액되지 않고 남은 당초처분’이고, 제소기간도 당초처분이 기준이 되어야 한다고 판시하였다. 이러한 대상판결의 법리는 조세쟁송에서 감액경정처분에 대한 기존의 대법원 법리 및 기존의 과징금 부과처분이나 개발부담금 부과처분에서 밝힌 법리와도 동일한 법리이다. 그런데 이러한 대상판결의 법리는 처분서의 문언 내용에 따라 처분의 내용을 판단하여 야 한다는 대법원의 판례 자체에도 부합하지 아니하고, 감액처분시 행하는 새로운 납부기일과 불복고지로 갖게 되는 징수의무자의 신뢰에도 반하며, 그 법리가 이해하기 어려워 국민의 권익보호에 기여하는 법리로 평가되기도 힘들고, 소송요건 중 제소기간의 측면에서 볼 때 징수의무자의 본안판단의 기회를 보호하는 법리로 보기 어려우며, 감액처분을 통하여 행정청 스스로 위법하다고 평가한 당초처분의 처분사유를 가지고 당초처분의 적법성을 판단하는 것은 잘못이라는 점 등의 문제점이 있다고 평가할 수 있다. 반면 처분서의 문언에 충실하여 감액처분 처분서의 문언이 ‘일부 취소’임이 명백하지 아니한 이상 ‘새로운 처분’으로 보아야 한다고 보면, 위와 같은 문제점은 없어지거나 크게 완화된다. 그러나 이 견해에도 처분변경으로 인한 소의 변경이 이루어지지지 아니함으로서 당초처분에 대한 소가 각하될 위험성이 있다는 지적이나 당초처분에 기초한 압류처분 둥후속처분의 효력이 문제될 수 있다는 지적은 가능하다. 그러나 전체적으로 볼 때 대상판결의 법리보다는 처분서의 문언에 충실하게 해석하는 것이 처분의 해석의 측면에서나 국민의 신뢰와 권익보호의 측면에서 올바른 견해라고 생각된다. In Sep. 27. 2012, in case of amount obtained by unjust enrichment, the Supreme Court sentenced that the object of litigation between a beginning administrative measure and a follow-up reduced administrative measure is a beginning measure reduced by the follow-up measure, and that the starting point of period of litigation is a beginning administrative measure. The above precedent principle coincides with the principle that the Supreme Court sentenced in the case of tax, penalty and development charge litigation. But the above principle does not coincide with the Supreme Court`s another principle that the meaning of a administrative measure should be interpreted by the contents of administrative measure documents. And the above principle betrays the responsible person`s trust that is made by disposition agency who gives the person another deadline for payment or notifies the objection methods when he disposes the following-up reduced administrative measure. And the above principle is too difficult to be understanded by public people, so it does not contribute to the safeguard of the public`s rights. And in terms of period of litigation, the above principle does not protect the responsible person`s right of procedure on the merits of a case. And it is wrong to judge the beginning administrative measure`s legality by the resons that is confirmed illegal through the follow-up reduced administrative measure. So I think it is right that the object of litigation between a beginning administrative measure and a follow-up reduced administrative measure is a follow-up reduced administrative measure, and that the starting point of period of litigation is the follow-up reduced one.

만성 부비동염에서 부비동 내시경수술후 기간별 추적 조사 -수술전 전산화 단층촬영 분류와 수술후 경과기간에 따른 분석-

김종남,홍순관,박미향 대한이비인후과학회 1998 대한이비인후과학회지 두경부외과학 Vol.41 No.2

건강진단 수진자의 당뇨위험요인 및 건강행태의 변화에 관한 5년 추적관찰 조사

김주자 순천향대학교 산업의학연구소 1998 순천향산업의학 Vol.4 No.1

This study was done to observe the change of risk factors and health behavior among health examines between baseline and 5 year follow-up examinations. For the study, 484 subjects who had regular health examinations on 1900 and on 1995 were selected. The subjects were divided into 3 subgroups, i.e., Normal, IGT-Ⅰ, IGT-Ⅱ groups depending on the criteria combined with fasting and 1 hour postprandial blood sugar. The results were as follows; 1. The subject was consisted of 383 male (79.1%) and 101 female (20.9%), 484 in total. Subgroups were consisted of 306 Normal group (63.2%), 159 IGT -Ⅰ group (32.9%) and 19 IGT-Ⅱ group (3.9%). The highest age distribution was in the 40-49 age group all three groups. Most of them were office workers for males and housewives for females. 2. The mean levels of risk factors at baseline were ccompared to the mean levels after follow-up. Age, fasting and 1 hour postprandial blood sugar levels, relaive body weight, triglyceride, total cholesterol were significantly increased after follow-ups, especially in the Normal group. And also the majority of risk factors were increasing according to the level of subgroups i.e., the IGT-Ⅱ, IGT-Ⅰ, Normal group in order, for both baseline and followup examinations. 3. The changes of various health behaviors were observed between baseline and follow-up examinations. Such habits as regular exercise, change of weight, smoking, liquor, coffee drinking significantly changed to more desirable health behavioral patterns during follow-ups, but consuming salty, greasy or regular meals, concept on one's body weight, and daily activity did not significantly changed. In conclusion, more intensive interventions such as screening, health education, etc., were needed for all subgroups.

치성 각화 낭종의 술후 재발양상과 추적관찰 기간의 제안

박세현(Se-Hyun Park),김남균(Nam-Kyun Kim),김기호(Ki-Ho Kim),강상훈(Sang-Hoon Kang),박형식(Hyung-Sik Park),김형준(Hyung-Jun Kim),차인호(In-Ho Cha),남웅(Woong Nam) 대한구강악안면외과학회 2008 대한구강악안면외과학회지 Vol.34 No.4

Post-operative recurrence of cystic lesion is a great concern for clinician, patients, and their family, especially in case of odontogenic keratocyst, which has aggressive behavior and high recurrence rate. The purpose of this study was to evaluation clinical characters of OKC, focusing of the recurrence rate and proposed critical follow-up period. 58 cases (aged 9 to 66, 33 males and 25 females) of OKC were reviewed for sex of patients, location, size, operative procedure type, radiographic findings, histopathologic findings, post-operative recurrence time, from 2000 to 2005 at Yonsei Medical Center, were selected. The computerized statistical analysis was carried out with SAS system. 18 of 58 cases (31.03%) were recurred and this study revealed no statistically significant difference in recurrence rate for sex, location, size, radiographic findings, histopatologic findings, operative procedure type, recurrence timing. 3 out of 18 cases (16.7%) showed one or more recurrence. This was statistically significant difference (P=.0264). In this study, 15 of 18 cases (83.3%) were observed recurrence during 4 years after removal of the OKCs, we suggest critical follow-up period during 4 years after operation.

Interest of Anorectal Manometry During Long-term Follow-up of Patients Operated on for Hirschsprung’s Disease

( Viet Q Tran ),( Tania Mahler ),( Patrick Bontems ),( Dinh Q Truong ),( Annie Robert ),( Philippe Goyens ),( Henri Steyaert ) 대한소화기기능성질환·운동학회(구 대한소화관운동학회) 2018 Journal of Neurogastroenterology and Motility (JNM Vol.24 No.1

Background/Aims Although many advances in the management of Hirschsprung’s disease have recently been achieved, postoperative outcomes of these patients remain difficult in a non-negligible number of cases. Therefore, this study aims at investigating characteristics of anorectal manometry and its relationship with postoperative outcomes during long-term follow-up in Hirschsprung patients. Methods Patients over 4 years of age operated on for Hirschsprung’s disease were interviewed to complete detailed questionnaires on bowel function. The patients who consented to undergo an anorectal manometry during follow-up were enrolled in this study. We investigated their clinical characteristics, manometric findings, and their postoperative bowel function. Results Nineteen patients out of 53 patients (35.8%) were enrolled, 68.4% who were male. Mean age of patients at manometry was 11.3 ±6.3 years. Twelve out of 19 patients (63.2%) were incontinent. The mean anal resting pressures of incontinent patients were significantly lower than continent patients (47 ± 12 mmHg versus 63 ± 11 mmHg, P < 0.05, t test). Due to neurological impairment, only 11 patients (57.9%) were able to perform a complete manometry. A dyssynergic defecation was found in 4 patients during strain tests. Maximum tolerated volume of the incontinent patients was significantly lower than that of the continent patients (97 ± 67 mL versus 181 ± 74 mL, P < 0.05, t test). Conclusion Anorectal manometry is an objective method providing useful information that could guide a more adapted management in patients with defecation disorders after Hirschsprung’s disease operation. (J Neurogastroenterol Motil 2018;24:70-78)

Temporal Characteristics of Volatile Organic Compounds in Newly-Constructed Residential Buildings

Seung Ho Shin,Wan Kuen Jo 대한환경공학회 2013 Environmental Engineering Research Vol.18 No.3

The present study was designed to examine the concentrations, emission rates, and source characteristics of a variety of volatile organic compounds (VOCs) in 30 newly-constructed apartment buildings by measuring indoor and outdoor VOC concentrations over a 2-year period. For comparison, seven villa-type houses were also surveyed for indoor and outdoor VOC concentrations over a 3-month period. Indoor and outdoor air samples were collected on Tenax-TA adsorbent and analyzed using a gas chromatograph (GC)/mass spectrometer system or a GC/flame ionization detector system coupled to a thermal desorption system. The long-term change in indoor VOC concentrations depended on the type of VOCs. Generally, aromatic (except for naphthalene), aliphatic, and terpene compounds exhibited a gradual deceasing trend over the 2-year follow-up period. However, the indoor concentrations of the six halogenated VOCs did not significantly vary with time changes. Similar to these halogenated VOCs, the indoor naphthalene concentrations did not vary significantly with time changes over the 2-year period. Unlike the halogenated VOCs, the indoor naphthalene concentrations were much higher than the outdoor concentrations. The indoor concentrations of aliphatic and aromatic compounds were higher for the villa-type houses when compared to those of apartment buildings. In addition, four source groups (floor coverings and interior painting, household products, wood paneling and furniture, moth repellents) and three source groups (floor coverings and interior painting, household products, and moth repellents) were considered as potential VOC sources inside apartment buildings for the first- and second-year post-occupancy stages, respectively.

Changes in bibliographic information associated with Korean scientific journals from 2011 to 2019

서윤주,조혜민,허선 한국과학학술지편집인협의회 2020 Science Editing Vol.7 No.1

Purpose: This study aimed to examine how the bibliographic information of 558 journals that applied for the Korean Federation of Science and Technology Societies funding in 2011 changed from 2011 to 2019, with the goal of informing the development of Korean scientific journals. Methods: Between May and October 2012, bibliographic information from 558 journals was obtained from PDF files for the print versions of one issue of 2011 and the journal homepages. In August 2019, the bibliographic information of the same journals was traced based only on the journal websites. We compared bibliographic information. Results: Excluding 14 journals that were discontinued or integrated with other journals prior to the follow-up in 2019, 544 journals were compared. Over the 8-year period, 121 journals underwent title changes. The number of journals with eISSNs (electronic International Standard Serial Number) increased from 214 (39.3%) in 2011 to 488 (89.7%) in 2019. “Aims and scope” descriptions were found for 291 journals (53.5%) in 2011 and 482 (88.6%) in 2019. The number of English-only journals increased from 163 (30.0%) to 227 (41.7%), and the number of journals with an open access policy rose from 92 (16.9%) to 315 (57.9%). Journals with DOI (digital object identifier) prefixes increased from 256 (47.1%) to 536 (98.5%). Conclusion: The increased frequency of the above bibliographic information is evidence of the globalization of local journals. However, even in 2019, some journals still lacked the necessary bibliographic information. For better dissemination and promotion of Korean scientific journals, editors and publishers should more critically consider the proper inclusion of information on journal websites.

19세기 조선에서 서양과학과 천문학의 성격: 청조 고증학의 영향을 중심으로

전용훈 ( Yong Hoon Jun ) 한국과학사학회 2013 한국과학사학회지 Vol.35 No.3

Based on an analysis of Chubosokhae 推步續解 (A Follow-up Commentary on the Astronomical Calculation, 1862) and other documents written by Nam Pyong-ch`ol 南秉哲 (1817-1863), in this paper, I examine the following aspects of his work: (1) the achievement of his astronomy and natural studies, (2) his attitude to western science and his evaluation of it, (3) the influence of evidential studies of the Qianjia 乾嘉 period (1736-1820) of Qing China and its relationship with Nam`s natural studies, and (4) the object and meaning of natural studies from his Confucian perspective. Nam`s study of astronomy, most of all, showed the highest level of consistency and systematization on the technical side. He had full confidence in western science because western astronomy was equipped with good accuracy and efficiency in calculating the movement of celestial bodies and making an annual calendar with it. Nam`s amity with western astronomy was deeply related to that of Chiang Yung`s 江永 (1681-1762), a Chinese scholar of evidential study. Nam also learned the evidential methodology from scholars of evidential studies of the Qianjia period and he always examined astronomical proofs when he discussed astronomical theories. No matter how his natural study assumed evidential character, however, it was never an independent field of modern science. Natural study to him was a secondary field of Confucian study, which was always a pursuit of being an ethical sage. Western science, therefore, had only a technical value, while Confucian study possessed the excellence of ethical and cultural value.

가업승계를 위한 상속세 개편 방향

윤병섭 ( Byung-seop Yoon ) 한국중견기업학회 2020 중견기업연구 Vol.7 No.2

본 연구의 목적은 당면 현안인 가업승계를 위한 상속세 개편 방향을 논의함에 있다. 정부는 원활한 가업승계 기반 구축을 위하여 지난 10여 년간 가업상속세제 부문을 개정하였으나 여전히 미흡하다. 가업승계는 단순한 부(富)의 이전이 아니라 체화된 노하우 및 기술승계로 기업경쟁력을 유지하고 기업 존속으로 일자리를 유지·창출해 국가경쟁력 강화에 기여한다. 장수기업은 고용창출 능력이 크고 사회적 기여도가 높으며, 세금을 성실히 납부해 경제성장을 돕는다는 이타(利他)의 마음을 지닌, 즉 사회 공기(公器)로 인식하고 있다. 장수기업 중심으로 가업승계 세제지원이 이루어질 수 있도록 상속세제를 검토하여야 한다. 상속세 개편 방향을 다음과 같이 제언한다. 첫째, 상속세 부담이 있는 OECD 18개국의 상속세 최고세율 평균 26.6%를 고려하여 현재 50%의 상속세 최고세율을 25%로 하향 조정하여야 한다. 가업상속공제는 직전 연도매출 1조 원으로 확대하고 가업영위기간별 공제한도를 현재보다 상향해서 공제해야 한다. 둘째, 상속세 납부 후 사후관리 기간을 7년에서 5년으로 완화해야 한다. 자산유지를 7년간 80%·5년간 90% 유지를 처분자산 전부 가업관련 재투자 시 면제해야 한다. 셋째, 주식으로 가업을 승계할 때 중견기업 최대주주등 보유주식 할증률 20%를 폐지해야 한다. 넷째, 가업승계를 상속보다 증여로 할 수 있도록 과세특례 제도를 확대해야 한다. 다섯째, 상속세를 과세할 때 최근 납세 환경변화를 고려하여 OECD 17개국이 채택하는 취득과세형 방식으로 변경해야 한다. 취득과세형이 유산과세형보다 공평 과세에 부합하다. The purpose of this study is to discuss the current issue of inheritance tax reform for family business succession. The government has revised the family business inheritance tax system over the past decade or so to establish a smooth foundation for family business succession, but it is still insufficient. The succession of family business is not just a transfer of wealth, but rather a strengthening of national competitiveness by maintaining and creating jobs through embodied know-how and technology succession. Long-lived companies are perceived as having a high capacity to create jobs and high social contributions, and a altruistic mind to help economic growth by faithfully paying taxes. The inheritance tax system shall be reviewed so that tax support for family succession can be provided centering on long-lived businesses. The direction of the reorganization of the inheritance tax is suggested as follows. First, considering the average 26.6% inheritance tax rate in 18 OECD countries with inheritance tax burden, the current 50% inheritance tax rate should be lowered to 25%. The deduction for family business inheritance should be extended to 1 trillion won in sales in the previous year and deducted by raising the deduction limit for each period of family business. Second, the period of follow-up management after the payment of inheritance tax should be eased from seven years to five years. Retention of assets should be exempted when the entire disposal asset is reinvested in the family business. Third, when inheriting the family business with stocks, the premium rate of 20% of shares held by the largest shareholder of high potential enterprises companies should be abolished. Fourth, the special taxation system should be expanded so that family business succession can be given rather than inherited. Fifth, when taxing inheritance tax, it should be changed to the acquisition tax-type method adopted by 17 OECD countries in consideration of recent changes in the taxation environment. Acquisition tax types are more equitable to taxation than legacy tax types.

유엔인권이사회의 보편적 정례검토제도 -한국의 실행과 평가를 중심으로-

박병도 ( Byung Do Park ) 법조협회 2009 法曹 Vol.58 No.8

The Universal Periodic Review(UPR) is a significant innovation of the Human Rights Council which is based on equal treatment for all countries. The UPR was established when the Human Rights Council was created on 15 March 2006 by the UN General Assembly in resolution 60/251. This mandated the Council to undertake a universal periodic review, based on objective and reliable information, of the fulfillment by each State of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all States.” The UPR also includes a sharing of best human rights practices around the globe. On 18 June 2007, one year after its first meeting, members of the new Council agreed to its institution-building package(A/HRC/RES/5/1) providing a road map guiding the future work of the Council. One of the key elements of this package was the new Universal Periodic Review. All the 47 members of the Council will be reviewed during their term of membership. On 21 September 2007, the Human Rights Council adopted a calendar detailing the order in which the 192 UN Member States will be considered during the first four-year cycle of the UPR(2008-2011). The reviews will take place during the sessions of the UPR Working Group which will meet three times a year. The first and second and third sessions took place in April and May and December 2008, respectively. The Working Group on UPR held its second session from 5 to 19 May 2008. The review of the Republic of Korea was held at the 6th meeting on 7 May 2008. At its 10th meeting held on 9 May 2008, the Working Group adopted the present report on the Republic of Korea. On 28 February 2008, the Human Rights Council selected the following group of rapporteurs(troika) to facilitate the review of the Republic of Korea: Peru, Egypt and Jordan. At the 6th meeting, on 7 May 2008, H. E. Kim Sung-hwan, Vice-Minister of Foreign Affairs and Trade introduced the national report, reaffirming Korean strong commitment to promoting and protecting human rights at home and abroad. The Republic of Korea is sincerely fulfilling its voluntary pledges and commitments and underlined its policy to fully cooperate with the United Nations mechanisms and to play a constructive role. In the course of the discussion, the following recommendations were made to the Republic of Korea: 1.To work on the implementation and dissemination of observations of treaty bodies; 2.To ratify the Convention of the Rights of Persons with Disabilities without reservations; 3.To strengthen efforts to uphold the Act on the Foreign Workers Employment in order to ensure the effective protection of the rights of foreign workers in the country; 4.To enact a crime of torture as defined in article 1 of the Convention against Torture; 5. To review its resident registration system to safeguard the right to privacy and limit the uses registration numbers to those strictly necessary for the provision of public services); 6. That marital rape, child abuse and domestic violence be criminalized, perpetrators are prosecuted and sanctioned, human rights training be provided for officials dealing with instances of domestic violence and child abuse, and that child-sensitive procedures be adopted during criminal proceedings involving children.