Earticle

In the U.S., securitization of residential home loans have dramatically changed the operation of the home mortgage market. The recent turmoil in the home mortgage market has enlivened discussion of the assignee liability of the owners of home mortgage loans, arising from the activities of the originators of home mortgage loans. One topic in these discussion is the holder in due course rule. Under Article sec. 3-302 of the Uniform Commercial Code (hereinafter "UCC"), this rule insulates some assignees from borrowers' claims and defenses to payment. Generally speaking, under the UCC, a holder in due course is a person who acquires a home mortgage note for value, in good faith, without notice that it is overdue, dishonored, or that any person has any claim or defense. The holder is protected by the UCC from most claims and defenses that mortgage borrowers can assert to avoid paying on the promissory note. Through this protection of the holder in due course rule, however, predatory lenders have been able to avoid the risk of harm created by those lenders and investors in the securitization market have been able to assign almost all such risk to the homeowners who are the victims of the predatory lenders's practices. This article tries to understand how predatory mortgage lending has become so rampant in the U.S. and to find suggestions for Korean lending industry and relevant legal regimes regarding the holder in due course rule.

1. Korea State Compensation Act Article 2 regulates the liability of compensation of the public officials or private persons entrusted with public duties. That is to say; (1) When public officials or private persons entrusted with public duties (hereinafter referred to as “public officials”) inflict damage on other persons by intention or negligence in performing their official duties, in violation of the provisions of Acts and subordinate statutes or when they are liable to compensate for damage under the Guarantee of Automobile Accident Compensation Act Guarantee of Automobile Accident Compensation Act, the State or local governments shall compensate for such damage under this Act: Provided, That when military personnel, civilian employees of the military, police officials or homeland reserve forces are killed, or injured in the course of performing their duties in relation to combat, training, etc., they or their bereaved family shall not claim damages under this Act and the Civil Act Civil Act, if they may receive compensation, such as disaster compensation, pension for the bereaved family, disability pension or such under other Acts and subordinate statutes.[Amended by Act No. 9803, Oct. 21, 2009]. (2) In cases of the main sentence of paragraph (1), if such damage has been caused by intention or gross negligence of a public official, the State or local governments may demand reimbursement to the relevant public official.[This Article Wholly Amended by Act No. 8897, Mar. 14, 2008]. 2. A judge is one of the “public officials” in special service(State Public Officials Act Article 2). For the reason, when a judge inflict damage on other persons by intention or negligence in his decision, in violation of the provision of Acts and subordinate statutes, the State shall compensate for such damage under Korea State Compensation Act Article 2. But because the judge's decision has specific character that are judge's independent, system of appeal, system of Res judicata, its illegelity must interpret strictly(theory of illegelity restrict). Therefore wenn judge inflicts damage on other persons by illegel intention or insincerity in performing his decision, judge's decision will be illegelity.

(1) The majority theory on the nature of authentication of a document views that the authenticated document is a document recognized to be written by a will of a person who draws up the document that the party adducing the evidence claims, and regards both parties in the same light while saying that this document has formal weight of evidence. But the minority opinion views the meaning of authentication of a document in the same way as the majority theory, but shows a standpoint that it is credibility that makes to believe that the writer of the document has actually presented the will appeared in the document. On the other hand, the judicial precedent is not incoherent because it also views the authentication of a document as an issue of admissibility of evidence or an issue of formal weight of evidence. The majority theory and judicial precedent is dealing with the formal weight of evidence of the meaning that the minority theory says, as an issue of substantial weight of evidence. (2) The majority theory views the authentication issue as (formal) weight of evidence on the premise that the admissibility of evidence is not denied in a civil suit, but it is not proper that as the weight of evidence means a probative value or probativeness, namely, credibility or belivability of evidence, the authentication issue of a document becoming an issue in a prior stage of evaluation of weight of evidence is viewed as an issue of weight of evidence. Nonetheless, it is also difficult that the authentication is viewed as an issue of admissibility of evidence being formally and objectively decided by the law making organ. (3) Accordingly, it is necessary that this part is established as a separate concept instead of admissibility of evidence or weight of evidence. Unlike the admissibility of evidence that the admissibility of evidence is uniformly decided, if it is noticed that the concept of conditional relevancy becoming a Preliminary of the admissibility of evidence in the family law area of Anglo-American Law has a meaning in only a certain context in relativity depending on the case, it can be most proper that the basis of judgment that any document is recognized as an authentic thing and admissible, and the other document is not admissible because of being not authentic among documents being separately submitted in the case is grasped with a concept similar to conditional relevancy. (4) In relation to the authentication of a document which is one of types of conditional relevancy as a theory of legislation in this standpoint, it is thought to be better to widen the scope of presumption by adding a presumption provision of authentication like the regulation of Article 902 of FRE, and in principle, to remove the useless statement of "lack of knowledge" by rejecting the statement of admission or objection regarding the evidence about a document that the resumption provision is applied. It is thought that what makes the parties to a suit be able to get a decision of the appellate court is a better method in aspects of economical judicial proceeding and promotion of trust on the administration of justice of the people by describing this, after deducing a reasonable conclusion through intensive examination of evidence only on a part that the substantial authentication issues as a case that the detailed reason of the statement of 'denial' or 'lack of knowledge' was presented.

The problem surrounding death with dignity has recently been raising important legal and social issues. Nationally, the discussion about a doctor's requirement of ceasing treatment has been initiated with the 1998 'Boramae hospital' case as the basis. Many processes of debate has been continued, but a national agreement has not yet been achieved. There has been active debates about death with dignity based on the ruling of the Supreme Court relating to the prolongation of life and cease of treatment at Severance Hospital, and several legislative bills relating to this issue has been motioned. In the case of foreign countries, they are already showing a drift towards legal acceptance of death with dignity or passive euthanasia, respecting the patient's right of decision to decrease their pain, and in the Netherlands, euthanasia has nationally been legalized. The purpose of this study has been to grasp the key legal issues by examining the details of the recent ruling of the Supreme Court and its relating legislative debates. Furthermore, the main details of legislations relating to death with dignity in foreign countries has been examined to study the direction of legislations that may be applied in our country. According to the results of the study, the standard of legislations relating to death with dignity opens the permitting excuses of clear and meticulous withdrawal of life-sustaining treatment, and simultaneously function as a systematic device to maximize prevention of withdrawal of life-sustaining treatment. In detail, the medical standard of acceptable euthanasia is judged considering the condition of the patient, restricting to patients who possess no hope of recovery, and this judgment is to be made of the majority of medical professionals and neutral bodies, proceeding through processes of committees and such to control the process of withdrawal of life-sustaining treatment. On the other hand, to withdrawal of treatment for the prolongation of life, the decision of the patient's doctor must be voluntary and must have proceeded through extensive deliberations. However, preparing for the case when the patient is in a condition difficult to exercise his right of decision, the patient's will or prior wishes may be systematically considered. Meanwhile, the target is principally restricted to adults, and to prevent careless decision of the patient, a deliberation period of about 15 days is given to check and examine the condition of the patient, discuss with the family, and the relating committee's intervention may be considered.

Generally speaking, Same-Sex Marriage in Korea cannot be admitted as legal marriage under the Korean Constitution in that marriage should be union between a man and a woman according to the Korean Constitution article 36 section 1 and several decisions of the Korean Constitution Court. However, in the 21st century, it has become popular to describe marriages as either traditional or non-traditional. Traditional marriage has been conservatively described as being a life-long legal union between one man and one woman for the support of family and presumably offspring. With the respect of human rights and the widespread acceptance of Birth control(ex, IVF, Surrogate mother), the definition of traditional marriage has become less narrowly defined as a legal bond "between a man and a woman". Non-traditional marriage assumes a conjugal relationship other than that assumed in the traditional definition, and most commonly refers to Same-sex marriage. Same-sex marriage(also called gay marriage) is a legally or socially recognized marriage between two persons of the same biological sex or social gender. Same-sex marriage is a civil rights, political, social, moral, and religious issue in many nations. The conflict arises over whether same-sex couples should be allowed to enter into marriage, be required to use a different status (such as a civil union, which usually grants fewer rights), or not have any such rights. A related issue is whether the term "marriage" should be applied. The debate regarding same-sex marriages includes debate based upon social viewpoints as well as debate based on majority rules, religious convictions, economic arguments, health-related concerns, and a variety of other issues. Support for same-sex marriage is often based upon what is regarded as a universal human rights issue, mental and physical health concerns, equality before the law, and the goal of normalizing LGBT relationships. Opposition to same-sex marriage arises from a rejection of the use of the word "marriage" as applied to same-sex couples or objections about the legal and social status of marriage itself being applied under any terminology. Other stated reasons include direct and indirect social consequences of same-sex marriages, parenting concerns, religious grounds, and tradition. Supporters of same-sex marriage often attribute opposition to it as coming from homophobia or heterosexism and liken prohibitions on same-sex marriage to past prohibitions on interracial marriage. In my opinion, same-sex marriages take the view that the government should have no role in regulating personal relationships, while others argue that same-sex marriages would provide social benefits to same-sex couples. Because there is no evidence that society needs to maintain "marriage as an exclusively heterosexual institution", and, further, that same-sex unions can "contribute to stable and humane societies." Also, there is no scientific basis for distinguishing between same-sex couples and heterosexual couples with respect to the legal rights, obligations, benefits, and burdens conferred by civil marriage. Though opponents to same-sex marriage argue that same-sex marriage harms the family structure of society, and that same-sex marriages deprive children of either a mother or a father, I think that lesbian and gay parents do not differ from heterosexuals in their parenting skills, and their children do not show any deficits compared to children raised by heterosexual parents. If their parents are allowed to marry, the children of same-sex couples will benefit not only from the legal stability and other familial benefits that marriage provides, but also from elimination of state-sponsored stigmatization of their families. I argue against the position that same-sex marriage would be required to use a different status (such as a civil union, which usually grants fewer rights), or not have any such rights and describe the prohibition of same-sex marriage as devaluing the korean principle of equal treatment and the content of the right sexual autonomy that comes from the human dignity and the pursuit of happiness. Same-Sex Marriage in Korea must not be the elephant in the room. Same-Sex Marriage should be protected by legislation. Through the protection, Same-Sex Marriage in Korea would be get out of the category of 'homo sacer'. The scope of protection is entirely up to the discretion of the legislature based on SSMS(Assessing Attitude Toward Same - Sex Marriage Scale).

The purpose of this article is to understand the Real Estates Act(REA hereafter) in contemporary China. REA in China is in the establishing level. The first step was established in the form of reluctant management rule for the civil power. Even though the first level has been set up, the state owned property has not been acquired the accurate concepts through the contemporary China period. I have tried to set the concepts of the REA in China and the background elements of the social historical situation about REA in contemporary China. The economic development devoting by the nation-state has helped the extension of wealth and strength of the nation. In contrast, the strength of the civil(renmin) has been neglected by economy drive policy and government for the longtime. China is at the stage of accumulation of experiences in the pro-state national policy and rights laws. The REA should be defined the strict standardization on the points of maintenance, management and development of the civil ownership rights and the nation power number-one phenomena should be undone, and balance and check between national side and civil side should be taken accurately. But the REA has the flaws of practical process level in the set up, maintain, renew and operate law processes. We should recognize the core contexts and concepts about the real estate ownership and its operations within the influencing social-political situations.

The title of this thesis is "A Study on the Formative Process of Woodland Ownership System in North Korea". It would be difficult at the present moment to predict exactly what problems may arise in the future. However, there should be efforts to find solutions for problems related to regulation of public order so that the risk of causing unreasonable consequences can be minimized. To settle the restitution matter of confiscate woodland ownership, it is necessary to examine the historical development process of the past system. It should be noted that the main purpose of unification is to stop passing on the sorrow of the divided nation to the future generations, and to strengthen competitiveness of North Korea by activating the local economy. Moreover there is no efficiency to apply ownership rules of South Korea, which is regulated in the Civil Law, directly in the changing situations caused by the unification.

This study aims at protecting human rights of North Korean defectors in China in the perspective of the UN human rights treaties which China signs and ratifies. In domestic law, based on China's Constitution in 2004 that has the provision to protect human rights in the country, China should respect and protect human rights of North Korean refugees. Also China will be able to determine them refugees according to Article 32 of China Constitution which grants for the right to seek asylum for political reasons. In international law, China joined the 1951 Refugee Convention and the 1967 Refugee Protocol and based on these 'Convention refugees' status can be granted to North Korean defectors. But this arrangements does not seem to be possible for the time being. China can be able to apply the Refugee Convention directly or enact relevant domestic law to implementing international human rights treaties. Also when the capital punishment torture or severe detention in compliance with a North Korea Criminal Law Article 47 are expected to give to North Korean defectors, a complementary protection system is available and they are the subject of complementary protection in international law. According to the international human rights treaties which China general accedes and ratifies, China has international responsibility to grant them the status of `de facto regufees' or complementary protection. In particular, article 7 of International Covenant on Civil and Political Rights and article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment(repatriation to be torture ban) which China accedes and ratifies are invoked. Even if you see North Korean refugees as internally displaced persons, as China ratifies the International Covenant on Economic, Social and Cultural Rights, Convention on the Rights of the Child, Convention on the Elimination of all Forms of Discrimination Against Women, and International Convention on the Elimination of All Forms of Racial Discrimination, 'humanitarian status', 'humanitarian stay', or 'temporary protection 'can be granted for North Korean defectors. Avoiding diplomatic friction with North Korea, China can allow the UNHCR to recognize them the status 'mandate refugees'. Possibly saying that the defectors from North Korea may belong to comprehensive refugees in terms of international law as a matter of wide sense, in compliance with international law and state practices, at least would be `the subjects of complementary protection'. In any cases the states which accommodate the defectors from North Korea who does not want to come back to North Korea should provide them at least temporary protection and apply the principle of none-refoulement. In order to promote world peace and security, the most powerful tool is international Human Rights Law. Human rights protection of peoples and North Korean refugees in China depends not on lack of applicable law, but China government's positive which implement and apply China Constitution and UN human rights treaties in which China proclaims formal commitments to international society.

The lease of real property is preceded by real rights regulated as a part of obligation, so tenants as junior obligee have difficulties in receiving deposit refund. In order to protect tenants from such disadvantage, our government establishes and enforces ‘the Housing Lease Protection Act’, but this Act exposes a good few problems: Even a tenant who satisfy fixed date and requisite for setting up actions may be preceded by prior right mortgagee in the auction of applicable real property, since the former's opposing power is effective on the next day, not on the day of auction. Or there may be conflicts between tenant and real property purchaser due to unclear investigation report on real property lease, and a tenant may incur unexpected loss due to his or her failure to timely declare rights to real property and demand or apply for distribution. Hence, this study can give the following suggestions for institutional improvement of current tenant protection system: First, it is recommended to introduce Lease Deposit Refund Insurance System or grant a claim for official auction to tenants in an effort to secure lease deposit refund. Secondly, it is necessary to reconcile resident registration transference date with fixed date as a part of public notification on the lease of real property. Thirdly, it is required to actualize the value of small deposit. Finally, it is important to allow tenants to optionally exert their opposing power and their right to obtain preferential satisfaction.

Death with Dignity is distinguished from euthanasia as distinct concept, but often those two are used interchangeably. Especially in U.S.A, Death with Dignity Act is legalized physician-assisted suicide and Natural Death Act is legalized Death with Dignity. Thus the concept of Death with Dignity is carrying a lot of confusion, it is needed to establish a clear concept for this. In our country, Legislation on Death with Dignity doesn't have been performed yet. In this time, recent Supreme Court’s decision of withdrawal of life-sustaining care in terminal patient is a first judgement about the possibility of withdrawal of life-sustaining care in mature, terminal patient in the absence of specific legislation on this matter. The court’s decision is correct because we all respect the human dignity of the terminal patient. However, the Supreme Court’s decision allow withdrawal of terminal patient's life-sustaining care considering the substituted-judgement by guardian ad litem in the case of absence of advent medical directives of the patient, it has the risk of misuse and abuse of Death with dignity. Therefore, Death with Dignity Act should be enacted through legislation of living will or advance medical directive as soon as possible, Death with dignity shall be performed by specific and strict legal procedures of Death with Dignity Act.

On April 20, 2010, the International Court of Justice rendered its judgment on the Case Concerning Pulp Mills on the River Uruguay between Argentina and Uruguay. The dispute before the Court was submitted in connection with Uruguay's planned construction of one pulp mill and the construction and commissioning of another mill on the River Uruguay. The legal framework for this case is the bilateral treaty between Argentina and Uruguay for the purposes of delimitating the boundary in the River Uruguay, which, in turn, contemplated a "regime for the use of river." This regime was established through the 1975 Statute signed between Argentina and Uruguay to accomplish the optimum and rational utilization of the River Uruguay. The Court noted that the claims made by Argentina in its application concerns the alleged breach by Uruguay of both procedural and substantive obligations and determined that while those two obligations are functionally the linked, those two obligations can be separately reviewed according to their specific content. As far as the procedural obligations are concerned, the Court pointed out the essential role and functions of the Administrative Commission of the River Uruguay and reached the conclusion that Uruguay failed to properly notify the planned activity on the River Uruguay to the Commission as well to Argentina, thereby failing to comply with the procedural obligation under the 1975 Statute. With regard to the substantial obligation, the Court concluded that Uruguay has not breached its substantive obligations as most evidence submitted before the Court did not substantiate the claims made by Argentina.