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權度爀 慶北工業專門大學 1967 論文集 Vol.4 No.-
The dominant factor in the development of the procedural aspect of American administrative law has been the provision of federal and state consitutions that no peson may be derived of life, liberty, or property without 'due process of law'. As interprted by the courts in the United states, the due-process slause imposes certain procedural demands on the American administration. whethr or not they are made mandatory by statute. It is through its exercise of powers of delegated legislation and adjudicaiton that the administration is able to determine private rights and obligations. TThereupon, a book on administrative law focuses upon delegated legislation and adjudication and deals with the deligation of legislative and judicial powers to the administration. To earlier American writers on administrative law, the subject was divided into the question of powers and remedies. They thought of administrative law as that part of the public law which fixes the organizzzzaation and determines the competence of the administrative authorities, and indicaate to the individual remedies for the violation of his rights. they were concerned mainly with the delegation of authority to the administration and the judicial control of administrative action. In recent years, has come the realization that of equal, if not greater, importance is the exercise of power by the administration itself, And with this realization has come the emphasis upon procedural safeguards to ensure the proper exercise of administrative authority. An emphasis found legislative articulation in the FederalAdministrative Procedure Act of 1946. The law lays down the basic procedures which must be followed by American administrative agencis. The heavy emphasis today is upon the administrative process itself-upon the procedures which the administration must follow in exercising its power of delegated legislation and adjudication. In this respect, administrative law relates more to producere and remedies than to substantive law. In order to make out American administrative law. this paper refers to the character, and gives an outline of the Federal Administrative Act established in 1946, and at the conclusion, considers the problem of that Act.
한미 자유무역협정(FTA)은 순응의 산물인가 아니면 선택의 결과인가? : 의약품 관련 지적재산권 분야를 중심으로
권도혁,류석진 세종연구소 2017 국가전략 Vol.23 No.1
This article argues that, contrary to recent studies, Korea-US FTA is a result of the proactive and voluntary choice by the Korean government with a case study of the drug-related intellectual property rights. Recent studies contend that Korea-US FTA is a result of Korean government’s reactive and enforced compliance to American pressures. Furthermore, they suggest that the agreement was to consolidate the security alliance between Korea and US against the rise of China. However, Korean government intended to develop pharmaceutical industry as a strategic industry and made strategic use of external(US) pressure in order to overcome the domestic opposition to industrial reform. Once President Roh’s cabinet set a goal to reform pharmaceutical industry, subsequent Korean governments persistently have put the policy forward, and have pursued institutional transformation through FTA. FTA was chosen and utilized as a tool for long-term policy plan about domestic pharmaceutical industrial restructuring, focusing on the issues of drug-related intellectual property rights. 지식사회에 접어들면서 지적재산권이 하나의 중요한 경제적 자원이 되었다. 미국계 초국적 기업들의 추동으로 세계무역기구(WTO)에서 무역관련 지적재산권 협정, 이른바 트립스(TRIPs)을 이끌어내었다. 특히 미국은 자유무역협정(FTA) 등을 통해서 상대국에 대해서 트립스 이상의 수준으로 관련법을 개정하도록 요구하고 해왔다. 실제로 한국도 미국과 FTA를 체결함으로써 이전보다 지재권 보호가 강화되었는데, 이 때 쟁점이 되었던 것 중 하나 의약품 관련 특허 문제였다. 이로 인해 신약 특허보다는 제네릭 제조가 대부분인 국내 제약업계가 큰 타격을 얻을 것으로 예견되었고, 약가가 상승해 소비자들도 피해를 볼 것으로 예상되었다. 때문에 한미 FTA 체결은 미국의 요구에 이끌려 국내의 손해를 감수한 협상으로서 부정적인 평가를 받기 일쑤였으며, 이는 한국이 대외통상정책의 결정 및 국제제도의 참여에 있어서 능동적이기보다는 순응적이라는 가정을 지지해주는 것처럼 보인다. 하지만 본 글은 기존 논의에서 유도되는 가정이나 당시의 비판적 견해와 달리, 한국이 한미 FTA를 자국의 이익을 위해 선택하였으며, 특히 국내 제약산업의 개혁이라는 목표에 대한 수단으로 선택한 측면이 있음을 밝힐 것이다. 즉 한미 FTA는 순응이 아니라 선택의 결과였다.
권도혁 한국동양정치사상사학회 2023 한국동양정치사상사연구 Vol.22 No.2
This paper analyzes the discourse of economic democratization. The long-standing political and social debate in Korea over economic democratization or economic democracy indicates that the concept is undergoing an ideological struggle for its legitimacy in Korean society. This research analyzes economic democratization from a political-ideological perspective, focusing on its constitutional interpretation. The specificity of the discourse of economic democratization in Korea is that it is based on its constitutional normativity, unlike the cases in other countries. Therefore, it shows how economic democratization is interpreted in Korean society by focusing on the economic democratization-related cases of the Constitutional Court, the highest constitutional authority in the Korean judiciary. The analysis shows that the Korean Constitutional Court understands economic democratization as part of the realization of social justice and economic order based on the implementation of the social state principle of the Constitution. And the practice of the social state principle means ensuring a just minimal humane life for the people. Furthermore, it shows that this way of understanding the Constitution regarding economic democracy is consistent with Yu Jin-Oh’s concept of the social state, which had a great influence on making the Constitution. However, I suggest that there was another interpretation of economic democratization in the history of Korean political thought that was not based on the current Constitutional Court or Yu’s understanding of the social state principle through Jo So-Ang’s political theory. It reveals the differences between Yu and Jo’s ideas on equality and economic democracy and argues how the meaning of economic democratization differs when interpreted according to the two positions. In doing so, it emphasizes that the current constitutional interpretation of economic democratization is not the only alternative or inevitable outcome.