중국경제법의 개념 및 범주에 관한 쟁론

강효백 한국동북아학회 2016 한국동북아논총 Vol.21 No.2

Unlike an usual capitalist country, China has an economic law, which, being one of the seven categories that constitute the country's legal system, is a legal terrain, where its application and study is active and vibrant in the entire processes in legislative, executive, and judiciary bodies. Establishing concept of the economic law and demarcating its category in particular are a key issue fiercely debated in China's legal circles. Opposition growth was seen in the main theories with regard to the concept of economic law such as economic administrative law theory, corporate law theory, economic management law theory from the socialist commodity economy period in the 1980s to state cooperation theory, public society theory, marcro-control theory, perpendicular and horizontal relationship unification theory, necessity of state intervention theory since the establishment of socialist market economy route in the 1990s. Together with these theories, various views such as competition law theory, dichotomy theory, trichotomy theory, quartchotomy theory, multichotomy theory with regard to the application scope of the economic law and those subject to the regulations have continued to develop dialectically. While the concept of China's economic law after 2010 is defined as "a law that adjusts the state intervention in economic activities and socio-economic relationship occurred during management processes," the necessity of state intervention theory that has gone through the theoretical evolution such as systemizing the economic relationship that requires state intervention-appropriate intervention-discretionary intervention holds a prevailing position. The concept and scope of the economic law that China's cabinets like the National People's Congress, which is China's highest institution of power as well as legislative organ under China's constitutional laws, and the Ministry of Education, and Academy of Social Sciences proclaimed are also in accord with the theory that necessitates the state intervention. In short, one markedly conspicuously characteristic of China's distinct socialist state's legal system can be seen in its comprehensive concept and broad categories that even includes some parts of the business laws. 일반적인 자본주의 국가와 달리 중국의 경제법은 7대법 영역중의 하나로서 입법 행정 사법 전과정에서의 적용과 연구가 활발한 법률영역이다. 특히 경제법의 개념정립과 범주획정은 중국법학계의 치열한 핵심논제로서 변화와 발전과정에 있다. 1980년대 사회주의상품경제시대의 경제행정법설, 기업법설, 경제관리법설로부터 1990년대 사회주의시장경제 노선확립 이후의 국가협조설, 사회공공성설, 거시조정설, 종횡(縱橫)관계통일설, 국가개입필요법설 등 경제법의 개념에 관한 주요학설들이 대립 성장하여왔다. 이와 함께 경제법의 적용범위와 규율대상과 관련하여 경쟁법설, 2분법설, 3분법설, 4분법설, 다분법설(多分法說)등 다양한 견해들이 변증법적 발전을 거듭하여왔다. 2010년대 이후 중국경제법의 개념을 “국가가 경제활동에 대한 개입과 관리과정에서 발생한 사회경제관계를 조정하는 법률이다.”라고 획정하는 한편, 국가개입-적정개입-신중개입을 필요로 하는 경제관계를 시장주체, 시장규제, 거시조정, 사회보장관계 등 4분법설로 체계화하는 등 이론의 진화과정을 거친 국가개입필요법설이 통설적 지위를 차지하고 있다. 헌법상 중국권력최고기관이자 입법기관인 전국인민대표대회를 비롯한 교육부, 사회과학원 법학연구소 등 중국관방이 공포한 경제법의 개념과 범주 역시 국가개입필요법설에 합치하고 있다. 요컨대, 일부 상법영역까지 포함하는 중국경제법의 개념의 포괄성과 범주의 확장성은 중국특색적사회주의 법률체계의 현저한 특징이라고 총평한다.

한·중 배타적 경제수역·대륙붕법제 비교연구: 한국의 대륙붕법 입법의 필요성을 겸론하여

강효백 한국동북아학회 2014 한국동북아논총 Vol.19 No.3

유엔해양법 협약상 배타적 경제수역과 대륙붕은 상호 별개의 해양관할수역으로 양립되어 있다. 해양법 제5부 배타적 경제수역은 상부수역의 생물자원의 이용 보존 등 어업권에 관한 사항을 집중적으로 규율한 반면, 해양법 제6부 대륙붕은 해저와 하층토에 부존된 천연자원의 탐사 및 개발 등 광업권에 관한 사항을 전문적으로 규정하였다. 중국은 「배타적 경제수역 및 대륙붕법(1998)」을 제정하였으나 한국은 「배타적 경제수역법(1996)」만 제정하였고 대륙붕의 범위 및 경계획정 방법을 규정하는 대륙붕법 대신에 해저자원을 석유와 가스로만 한정한 「해저광물자원개발법(1970)」을 시행하고 있다. 한-중양국은 배타적 경제수역 경계문제를 「한중어업협정(2000)」을 체결하여 잠정적으로 해소하였다. 향후 한국은 중국과의 대륙붕경계획정협상에서 제주-이이도해역의 제4광구를 비롯한 황해와 동중국해의 다양한 해저자원개발에 대한 우리의 권리를 명확히 주장할 「대륙붕법」을 마련하는 것이 바람직하다. In the UN Convention on the Law of the Sea, exclusive economic zone and continental shelf are defined separately as marine jurisdictional waters. While the Part V of Maritime Law on EEZ focuses on regulation of issues like the use and conservation of biological resources in top water zones, the Part VI on continental shelf specifically regulates the details of mining rights such as exploration and development of ocean floors and subsoil blessed with natural resources. While China established Exclusive Economic Zone and Continental Shelf Act in 1998, Korea only passed Exclusive Economic Zone Act in 1996 and, instead of Continental Shelf Law that stipulates on the boundaries of continental shelf and delimitation of boundaries, currently enforces Submarine Mineral Resources Development Act that restricts the definition of submarine resources to oil and gas. Having signed Korea-China Fisheries Agreement in 2000, the two countries tentatively settled the boundary issues of EEZ; however, it would be desirable for Korea to lay down continental shelf Act which will provide the country with the basis when asserting its rights on development of the various maritime resources in the Yellow Sea and East China Sea including the fourth mining field in Jeju-Ieodo waters.

[특별대담] 대한민국은 “用中用美 해야 한다”

강효백 (사)한국이주·동포정책개발연구원 2020 이주와 통합 Vol.11 No.-

윤석열 신정부가 나아가야 할 한 · 중 외교 기본노선 현대중국이 G2로 웅비한 비결 - 계왕개래(繼往開來)

강효백 (사)한국이주·동포정책개발연구원 2022 이주와 통합 Vol.17 No.-

한중 양국이 필사적으로 후쿠시마 오염수 방류를 막아야 하는 이유

강효백 (사)한국이주·동포정책개발연구원 2022 이주와 통합 Vol.18 No.-

중국 토지수용제도의 현황과 문제점

강효백 경희대학교 법학연구소 2008 경희법학 Vol.43 No.1

In china, various policies have been framed, such as strengthened calls for regional government account ability, social security cost for farmers as to compensation, employment rights and guarantees of livelihood. However, without allowing farmers to completely possess have the land ownership rights, such as lease and transfer rights, security rights, and the right to freely buy and sell land, such measures can be nothing more than stopgap policies. Under the justification of public interest, the regional governments in China often expropriate lands from farmers at arbitrary giveaway prices and turn such lands commercial use. An increasing number of such infringements on farmers' rights to their land has finally kindled the farmers to protest, causing social unrest. The root of the problems derived from abusive land expropriation (such as misuse of expropriation rights by the regional governments, unreasonable base and coverage of compensation, undemocratic processes of expropriation, delayed payment of compensation, and institutional inertia in moving people afterward) is lies in the incomplete ownership of land by farmers. When turning farmland into land for uses other than farming as a part of the process of expropriation of a rural community, the ownership is transferred to the state and the owners of the rural communities are not able to directly participate in the land markets. The expropriation of agricultural land and its transformation to commercial real estate often carried out by various regional governments in China is in fact market conduct. The process represents an exchange between community land ownership and state land ownership and it is supposed to be made through transactions based on negotiation. In reality, however, it is accomplished by coercive deprivation of community land ownership. * Professor, Graduate School of International Legal Affairs, Kyung Hee University. This phenomenon derives from the ‘dual track system’ in which state land and community land coexist, and by which land is expropriated in accordance with the planned economic system, while the land transaction is carried out in accordance with the market economic mechanism. This dual track system is disadvantageous for the farmers: Under this system the market price of the expropriated land far exceeds the land compensation amount, provided to the farmer. As a result, the regional governments and the businesses that carry out the transaction acquire large gains while the farmers turn over their land properties at what is practically a giveaway price. The community land ownership of Chinese farmers is in substance little more than the right of cultivation and the farmers do not even have the right to express their dissent regarding land expropriation. Under the justification of public interest, regional governments are abusing the land expropriation system while rapidly decreasing the acreage under cultivation and widening the gap between urban and rural regions, thereby leading to the basic cause of social unrest. The fundamental solution to the problem of land expropriation in China is to complement weaknesses scattered throughout various laws and regulations, such as the law of realty and the real estate administration law, and provide for systematic legal recourse that will allow farmers to possess land ownership in its entirety. The Chinese government now appears to be in the middle of promoting the enactment of land expropriation laws designed to ensure the legal rights and interests of those subject to expropriation, and include the authorization of complete land expropriation. These laws also regulate the compensation principles that are not only just and transparent, but which are also designed to maximize the efficient use of land resources. However, reforming the current rural community land ownership that does not include the right of disposal, and granting the farmers the complete land ownership, may shake th... In china, various policies have been framed, such as strengthened calls for regional government account ability, social security cost for farmers as to compensation, employment rights and guarantees of livelihood. However, without allowing farmers to completely possess have the land ownership rights, such as lease and transfer rights, security rights, and the right to freely buy and sell land, such measures can be nothing more than stopgap policies. Under the justification of public interest, the regional governments in China often expropriate lands from farmers at arbitrary giveaway prices and turn such lands commercial use. An increasing number of such infringements on farmers' rights to their land has finally kindled the farmers to protest, causing social unrest. The root of the problems derived from abusive land expropriation (such as misuse of expropriation rights by the regional governments, unreasonable base and coverage of compensation, undemocratic processes of expropriation, delayed payment of compensation, and institutional inertia in moving people afterward) is lies in the incomplete ownership of land by farmers. When turning farmland into land for uses other than farming as a part of the process of expropriation of a rural community, the ownership is transferred to the state and the owners of the rural communities are not able to directly participate in the land markets. The expropriation of agricultural land and its transformation to commercial real estate often carried out by various regional governments in China is in fact market conduct. The process represents an exchange between community land ownership and state land ownership and it is supposed to be made through transactions based on negotiation. In reality, however, it is accomplished by coercive deprivation of community land ownership. * Professor, Graduate School of International Legal Affairs, Kyung Hee University. This phenomenon derives from the ‘dual track system’ in which state land and community land coexist, and by which land is expropriated in accordance with the planned economic system, while the land transaction is carried out in accordance with the market economic mechanism. This dual track system is disadvantageous for the farmers: Under this system the market price of the expropriated land far exceeds the land compensation amount, provided to the farmer. As a result, the regional governments and the businesses that carry out the transaction acquire large gains while the farmers turn over their land properties at what is practically a giveaway price. The community land ownership of Chinese farmers is in substance little more than the right of cultivation and the farmers do not even have the right to express their dissent regarding land expropriation. Under the justification of public interest, regional governments are abusing the land expropriation system while rapidly decreasing the acreage under cultivation and widening the gap between urban and rural regions, thereby leading to the basic cause of social unrest. The fundamental solution to the problem of land expropriation in China is to complement weaknesses scattered throughout various laws and regulations, such as the law of realty and the real estate administration law, and provide for systematic legal recourse that will allow farmers to possess land ownership in its entirety. The Chinese government now appears to be in the middle of promoting the enactment of land expropriation laws designed to ensure the legal rights and interests of those subject to expropriation, and include the authorization of complete land expropriation. These laws also regulate the compensation principles that are not only just and transparent, but which are also designed to maximize the efficient use of land resources. However, reforming the current rural community land ownership that does not include the right of disposal, and granting the farmers the complete land ownership, may shake the vary fou...

사실혼 관계의 재중탈북여성 및 그 자녀의 법적지위에 관한 중국법제

강효백 경희대학교 법학연구소 2009 경희법학 Vol.44 No.3

The central point of discussion as to female North Korean defectors in China has taken the external approach, that is, the approach from the perspective of internal law that requires the recognition of refugee status or the approach of the international community that places diplomatic pressure on the country. These approaches, however, are not only unrealistic and inefficient, but also have the risk of resistance from China that may suppress the human rights of those defectors all the more as a result. For the defectors that have children from the de factor marriage with Chinese men, China is the place they would probably want to stay in. Naturally, they would want their quality of living in China to be improved rather than seek to enter Korea. Chinese government assures the status of foreigners and their children born from the marriage with Chinese; This is not the case for North Korean defectors, however. Their stay in China is regarded as being against the law, and consequently, they, not being provided with the legal protection, are exposed to the risk of compulsory repatriation back to North Korea and this is contrary to the principle of equity. It is necessary to set up a mechanism that not only grasp the current situation of female North Korean defectors in China as well as keeps a close watch on legislation trend of the country, but also provide these information to them so as to help them take self-defense measures and survive on their own. Even if it were difficult to find a way to give female North Korean defectors a refugee status, the measures are still needed that not only guarantee their legal status in certain districts, but also treat them equally as a native in whole of China based on China’s domestic law such as ‘marriage law’ that recognizes the legal force of de factor marriage the same as that of marriage according to statute. The central point of discussion as to female North Korean defectors in China has taken the external approach, that is, the approach from the perspective of internal law that requires the recognition of refugee status or the approach of the international community that places diplomatic pressure on the country. These approaches, however, are not only unrealistic and inefficient, but also have the risk of resistance from China that may suppress the human rights of those defectors all the more as a result. For the defectors that have children from the de factor marriage with Chinese men, China is the place they would probably want to stay in. Naturally, they would want their quality of living in China to be improved rather than seek to enter Korea. Chinese government assures the status of foreigners and their children born from the marriage with Chinese; This is not the case for North Korean defectors, however. Their stay in China is regarded as being against the law, and consequently, they, not being provided with the legal protection, are exposed to the risk of compulsory repatriation back to North Korea and this is contrary to the principle of equity. It is necessary to set up a mechanism that not only grasp the current situation of female North Korean defectors in China as well as keeps a close watch on legislation trend of the country, but also provide these information to them so as to help them take self-defense measures and survive on their own. Even if it were difficult to find a way to give female North Korean defectors a refugee status, the measures are still needed that not only guarantee their legal status in certain districts, but also treat them equally as a native in whole of China based on China’s domestic law such as ‘marriage law’ that recognizes the legal force of de factor marriage the same as that of marriage according to statute.

중국의 원자력법제 현황 및 개선전망

강효백 경희대학교 법학연구소 2013 경희법학 Vol.48 No.4

Because China’s nuclear safety is closely related to the national security of Korea, it is important to understand the current nuclear legislation of China, its problems and the future prospect. China’s nuclear legislation presently consists of one act, eight state council’s ordinances, 27 departmental ordinances, and 20 provincial regulations. The sole legislation in the field of China’s nuclear power, the Prevention and Control of Radioactive Pollution Rules (enforced in 2003) on the management of and supervision over the use of nuclear facilities and technology, the use of nuclear materials, disposal and transport of nuclear wastes, and the control of radioactive pollution. However, the Atomic Energy Act, the basic law that includes everything from R&D, production, use to safety management of nuclear power, has not yet been legislated since the initial draft made in 1984, because of the conflict of interests between the related departments and the frequent restructuring carried out. The legal vacuum exists in the fundamental laws and the nuclear power laws that mainly consist of lower laws are not only disorganized, impractical, and lack unity, but are also inefficient in regulatory process, lack clarity and transparency in authority and responsibility, and less than satisfactory in terms of collaboration with the global standards. Such legislations of China that lag behind those of other countries are likely to increase the risks that it will be difficult to carry out a composite and systematic response in case of an atomic accident. Immediately after Fukushima disaster in March 2011, the Chinese government announced that it will make the final draft for nuclear laws until the end of that year, but not much progress has been made to date. The root causes seem to lie in that the Chinese government, despite Fukushima nuclear disaster, adheres to ‘economy before the environment’ policy, regarding nuclear power as clean energy like the wind-power or solar energy and continuing with nuclear power generation. Recently, the Chinese government and the academic circles are fiercely arguing about which of the two laws — the Atomic Energy Act that covers all atomic energy related areas and the Nuclear Safety Act that focuses on atomic safety areas -- should be legislated first. The former is supported by the Ministry of Industry and Information Technology and the National Energy Bureau while the latter is backed by the National People’s Congress and the Ministry of Environmental Protection. In light of the facts that it is urgent as well as indispensable to come up with institutional devices to secure the atomic safety, that the Nuclear Safety Act is supported by the legislative body with supreme power under Chinese Constitution, and that the Chinese government tends to legislate laws on a gradual, step-by-step basis, the author of this paper expects that the Nuclear Safety Act will be legislated first, based on which atomic power laws will be legislated by field. The author also expects that the Nuclear Safety Act will include the entire standards related to securing the nuclear safety such as exploring and mining of mineral resources, controlling nuclear materials, managing nuclear facilities, application of nuclear technology, disposal of nuclear wastes, transport of radioactive materials, emergency response plan for nuclear accident, compensation for damage and export in relation with atomic power generation, processing, storage, and disposal. 중국의 원자력 안전은 우리나라의 안전보장과 밀접한 연관이 있는 만큼 중국의 원자력 관련법제의 현황과 문제점 및 향후 전망에 대한 파악이 중요하다. 현재 중국의 원자력법제는 1개의 법률과 9개의 행정법규(국무원령), 27개의 부문규장(부령)과 10개의 지방성법규로 구성되어 있다. 중국원자력분야의 유일한 법률인 <방사성오염방지법(2003년 시행)>은 핵시설 및 핵기술이용, 핵물질사용, 폐기 및 운반, 방사성오염방지 관리감독 분야를 규율한다. 그러나 원자력의 연구개발, 생산, 이용, 안전관리 등을 총괄하는 기본법으로서의 <원자력법>은 1984년 처음 초안이 작성된 이후 현재까지 관계 부서간 이해충돌문제와 빈번한 구조 조정 등의 문제로 제정되지 못하고 있다. 기본법의 공백상태와 하위법규 위주인 중국 원자력법제는 법규의 체계성, 통일성, 현실성이 취약할 뿐 아니라 규제방법의 비효율성, 권한과 책임의 불명확성, 불투명성, 국제규범과의 비협조성 등 제반 문제점을 노정하고 있다. 이러한 낙후된 법제는 원자력 사고가 발생할 경우, 종합적이고 체계적인 대응을 곤란하게 할 위험성이 크다. 2011년 3월 후쿠시마 원전 사고 직후 중국정부는 그해 연말까지 <원자력법>최종 초안을 작성할 할 것이라고 공표한 바 있으나 현재까지 별다른 진척이 없다. 중국정부가 일본의 후쿠시마 원전사고와 무관하게 원자력을 풍력이나 태양에너지와 같이 청정에너지로 간주, 원전을 계속 추진하는 ‘경제 우선, 환경 차선’정책을 견지하고 있는데 근본원인이 있다. 최근 중국정부와 학계는 기존의 원자력관련 모든 분야를 포괄하는 <원자력법> 제정방안과 원자력 안전 분야를 중점적으로 규율하는 <핵안전법>을 우선 제정하는 방안을 두고 치열한 논쟁을 전개하고 있다. 전자는 주로 공업정보화부와 국가에너지국에서, 후자는 전국인민대표대회와 환경보호부에서 주장한다. 필자는 원자력 안전성 확보를 위한 제도적 장치 마련의 時急性과 緊要性, 중국헌법상 최고권력기관이자 입법기관이 지지하는 입법안이라는 사실과 중국정부의 점진적 단계적 법제화 경향에 비추어 볼 경우, 우선 <핵안전법>을 제정, 이를 주축으로 분야별 원자력법제를 구축할 것으로 관측된다. <핵안전법>은 광물자원 탐사ㆍ채굴, 핵물질 규제, 핵시설 관리, 원자력기술 응용, 핵폐기물 처리, 방사선물질 운반, 원자력사고 비상대응, 원자력손해배상 및 원자력수출, 처리ㆍ저장 및 처분 등 원자력 안전 확보와 관련한 일체의 규범을 포괄할 것으로 전망된다.

WTO협정에 따른 중국환경법제의 현황과 문제점

강효백 중국학연구회 2008 중국학연구 Vol.- No.46

China’s joining the WTO means that the country will observe the WTO agreement and revamp its environmental laws in accordance with the WTO system. The WTO system specified on its establishment agreement the sustainable development as the main purpose of the optimal use of the world resources, and allowed GATT 1994, Technical Barriers to Trade Agreement (TBT), Application of Sanitary and Phytosanitary Measures (SPS), Subsidies and Countervailing Measures (SCM), Trade-Related Aspects of Intellectual Property Rights (TRIPS), and GATS provisions to be invoked, and organized Committee on Trade and Environment (CTE) within the organization, China has legislated in 1989 Environmental Protection Law and many of the administrative and local laws and regulations in the fields of antipollution, conservation of nature, and relief of natural hazards and finally built an environmental protection system: However, they were established at the early stage of China’s system transition seeking planned socialism commodity economy, which are limited to controlling the environmental pollution-antipollution. Despite its being contrary to WTO principles founded on transparent and fair game rules, revamp of the environmental law field has been in a stalemate after the country’s entry into WTO unlike other fields like trade law, foreign investment laws, and intellectual property law. However, as China recently promotes the transition from economic development first policy in the past to governing a country in accordance with law, the country is seeking to work out a new environmental legislative system that confirms to the WTO system. China’s new environmental legislative system is expanding the scope of regulations that covers from controlling environmental pollution and hazard relief to the use, management, and preservation of environment. We expect the country to break from its past posture of using the WTO’s exceptive clauses and actively participate in establishing and revising the WTO rules based on its raised national prestige as an economic trading power, thereby actively intervening in the international economic trade and environmental protection order.

한중 법의 연원에 관한 비교연구

강효백 중국학연구회 2007 중국학연구 Vol.- No.40