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Legal Tenets of the Rio Declaration 1992 and Subsequent Legal Tasks
동국대학교 비교법문화연구원 DONGGUK LAW REVIEW Volume 7 2015.12 pp.3-34
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7,300원
Since the Rio Declaration, the de facto “Global Environmental Constitution,” the international community has created a variety of environmental norms, which the national governments tried to incorporate into their domestic laws. The OECD analyzed the possibility of progressive alternatives by area − namely, integration of the environment and the economy, strengthening of international cooperation, monitoring and evaluation of the environment and pollution, environmentally friendly reform of energy and transport, response to urbanization and climate change, and management of chemical substances and bioengineering. Henceforth, differentiation of the principle of cost recovery and the polluter-pays principle, price estimation of public goods, and emissions trading scheme should be further specified in terms of law and economics. In order to resolve any obscurity in position between businesses and monitors, a function-based, rather than area-based, restructuring is necessary among relevant ministries. Also, mass litigation principle and standing should be expanded in environmental litigations. Reduction of liability of compensation due to participation in environmental impairment liability insurance and legalization of the right to request disclosure of information like Germany must be pursued as well. After the Rio Declaration, the concept of “sustainable development” was legalized and specified in action plans. While the efforts to harmonize the environment and the economy through the market remain unresolved, national law regulating nature and life will come to form a unified structure.
동국대학교 비교법문화연구원 DONGGUK LAW REVIEW Volume 7 2015.12 pp.35-86
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10,300원
One of the most severe types of financial crisis is a currency crisis. During recovery process, many social changes occur and legislative responses are required for them. Laws reflecting the facing reality are formed. At that time, IMF requested high-interest and retrenchment policies on condition of providing relief loans. The bankruptcy of companies caused mass unemployment and households that lost its purchasing power didn't consume anymore, which caused additional bankruptcies of enterprises. Such economic phenomena changed overall society. The government eliminated many restrictions and constructed legal systems favorable for foreign investors. Its representative examples are disposal of financial institutions to overseas and opening of foreignexchange markets and they are supported by the enactment of the Act on the Structural Improvement of the Financial Industry and the revision to the Foreign Exchange Transactions Act. Especially, most of financial, corporate, and investment legal systems were based on the reception of the Anglo-American laws. The changes of the laws related to economy were concentrated in the financial field. The representative changed laws are the Act on the Establishment, etc. of the Financial Supervisory Commission, the Act on the Structural Improvement of the Financial Industry, the Banking Act, the Financial Investment Services and Capital Markets Act, the Depositor Protection Act, and the Foreign Exchange Transactions Act. Other than them, the Special Act on the Management of Public Funds was established to secure funds for financial institutions revivable through reconstructing and the Act on the Efficient Disposal of Non- Performing Assets, etc. of Financial Institutions and the Establishment of Korea Asset Management Corporation was enacted for sale and arrangement of bankrupt companies. The aspects of business administration greatly changed after the revision to the Commercial Act in 1998. The key axis of the revision to the Commercial Act can be divided into three. The first was the vitalization of shareholders' rights. The second was the installation of a check mechanism inside a corporation. The third was the installation of the Audit Committee. Since the currency crisis, reconstructing has begun for survival in all fields of industry. After the crisis, many men lost their jobs and women began to seek for jobs for their families. In addition to that the ratio of temporary workers in employed workers was increased rapidly. The Act on the Protection, etc. of Fixed-term and Part-time Workers and the Act on the Protection, etc. of Temporary Agency Workers were established. The Act on the Employment Improvement, etc. of Construction Workers was enacted to protect workers engaged in the construction industry. Next year of the currency crisis, the Wage Claim Guarantee Act was enacted to guarantee wage claim for workers. The Labor Standards Act was revised for employment of temporary workers and legislation was established to protect them. To remove disadvantages of women's advancement in workplace and prevent the breakdown of the family caused by excessive work, the Act on the Equal Employment for Both Sexes was enacted in February 1999. In addition, the Act on the Promotion of Creation of Family- Friendly Social Environment was enacted. With regard to the entry of women in workplace, the Act on Promotion of Economic Activities of Career-Interrupted Women was established. Meanwhile, in response to the problems of low birth rate and aging, the Framework Act on Low Birth Rate in an Aging Society was enacted. Considering the main target of layoff was the aged employees at the time of the currency crisis, the Act on Prohibition of Age Discrimination in Employment and Elderly Employment Promotion was established to prohibit age discrimination in employment and promote elderly employment. In terms of welfare, the National Basic Living Security Act was enacted next year of the currency crisis. The crime rate increased as the losses a criminal have to put up with became smaller. Under the situation where people could lose no more because of massive job losses, the motives for crimes greatly increase. To review punishments on the first criminal trials, monetary penalties of punishment concerning property were more frequent than imprisonment. However, sentences exceeded the number of probation. It is considered that the courts sentenced as a strong response to social unrest and selected monetary penalties, instead of imprisonment, for correction of crimes committed due to social-environmental factors, such as difficulty in living or unemployment. Unlike natural science, it is hard to identify what factors caused what kinds of social changes or what legislative changes are responding to. However, the large-scale economic crisis has changed the flow of water in our society and it must have affected all fields both directly and indirectly. The influences of the currency crisis on Korean society can be considered to have both sides of light and shadow.
Actual issues of improving the criminal justice : Korea's experience and practice
동국대학교 비교법문화연구원 DONGGUK LAW REVIEW Volume 7 2015.12 pp.87-114
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6,700원
The executive power granted by law should be exercised throughout the entire process of criminal justice in accordance with the procedures and guidelines prescribed by law, and the laws governing such power shall be enacted withing the framework of the Constitution. It is true that the criminal justice system of the Republic of Korea has been used as a tool for oppressing citizens, and it has been customary in the practical operation of the system to accept investigation reports submitted by investigation agencies, including special judicial police and the Central Intelligency Agency, as they are, in determining guilt. Since the citizens' resistance in June 1987, constant efforts have been made to improve the Constitution of the Republic of Korea and its criminal justice system to substantive norms for the guarantee of human rights. In particular, the Constitutional Court established under the Constitution of 1987 have practically enforced the guarantee of fundamental human rights declared by the Constitution through its decisions on constitutional issues related to the criminal justice system, and judges and judicial officers have endeavored to realize the systems that they have learned from the United States and other advanced countries in judicial systems. As a result, the awareness that a judicial reform, as well as a political reform, was required had spread farther since 2003, discussions on the amendment of the Criminal Procedure Act had actively continued since the Act is the basis of the criminal justice system, and consequently the amendment of the Criminal Procedure Act of 2007 and an act on jury trials were passed by the National Assembly. It can be said that such improvements in the criminal justice system have contributed to the removal of public distrust in the judicial system, which citizens have experienced under the military dictatorship and authoritative rule and then in the course of overall democratization of society, and the advancement of the judicial system up to the international level. Nevertheless, in order to do away with citizens' distrust in the criminal judicial process, it is still required to make efforts to secure transparency in the criminal judicial process, change the paradigm "from criminal justice for people to criminal justice by people," and improve the system in the direction coherent with "constitutional criminal litigation."
동국대학교 비교법문화연구원 DONGGUK LAW REVIEW Volume 7 2015.12 pp.115-162
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9,700원
Issues of GMOs and GM foods certainly entail variety of considerations ranging from environmental protection, public health, consumer’s right and protection, to the promotion of technology. Different governments, states, and regions propose their own perspective on each subject matter and the arguments arising out of those various angles are never to come to any agreement. Among those unsettled issues, “safety” concern that GM food poses on human health and the environment clearly is the heart of the matter. This article examines how to approach the problem of consumer protection concerning GMOs, especially with GM foods, by examining the trends on international regulation concerning GM foods, extracting common points between the general regulations on GM foods and regulations for consumer protection, reviewing all the options regarding the methods of protecting consumers in the area of GM foods, and discussing the outlook for the GM food regulations for consumer protection. Governments should take the lead in organizing and providing consumers with necessary information while private organizations and/or consumer agencies consistently review and verify the government-fed information, so that to build informed consumer-tele. Regarding the food safety, it is especially significant to set the safety standards that the consumers can accept and also to involve consumers in the process of formulating these standards. By doing so, it allows the consumers to make a voluntary decision on whether to accept and choose GMOs. There should be a redesign of the standard for labeling regarding the safety and hazards of GMO, and the labeling standard and method regarding the GMO safety must be reexamined in full measure through a consumer-oriented approach, to ensure consumers’ voluntary and proactive decision making.
A Study on Change in Self-Auditing of Korean Public Institutions and Improving the Auditing Process
동국대학교 비교법문화연구원 DONGGUK LAW REVIEW Volume 7 2015.12 pp.163-196
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7,600원
In the past, the self-auditing agency for public institutions executed irregularity-disclosure type auditing, which focused on disclosure and punishment for irregularities. However, currently auditing is demanded not only to disclose irregularities but also to predict about future risks for the management and provide advices on how to evade them. In fact, GAO has systematized such a trend and formulated an accountability body maturity model which is a pyramid structure composed of six steps. In Korea, after the year of 2000 when the public institution operation law and the public auditing law were legalized, the self-auditing agency for public institutions has progressed considerably. Yet, there are tasks to be dealt with in order to strengthen the connection between auditing strategic plans and strategies for a body to which the self-auditing agency belongs, and there are needs for the tenures of public institution chiefs and auditors to be adjusted; the issue of overlapping evaluations of self-auditing for public institutions to be resolved; manpower problems related to the self-auditing agency for public institutions to be addressed; education to strengthen auditing capabilities to be systematized; and an active administrative exemption system to be actively introduced. The roles of the self-auditing agency of public institutions are really important since the management performances of the institutions will affect not only private enterprises but also the national economy and benefits. In the future, the self-auditing agency for public institutions in the Republic of Korea shall play a role as a solution finder which suggests future directions for public institutions and supports their management, so that public institutions can continue functioning in a proper way.
동국대학교 비교법문화연구원 DONGGUK LAW REVIEW Volume 7 2015.12 pp.197-220
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6,100원
This study suggests the meaning, role, and future direction of legal anniversaries on the grounds of presidential decrees, with specially focusing on the processes of execution, national participation, and publicity of the Environment Day. Through analysis of the World Environment Day, relations between related environment laws and the anniversaries were analyzed as well. The scope of this research is set on the significance of legal anniversary in 1973 and environment, science, and technology-related anniversaries after the enactment of provisions relating to the various anniversaries. The institutional foundation of law is important in the society of technology and science. The role of legal anniversaries is also important for commemorating the significance of policies at which such laws for engineers and scientists aim. However, there are similar and redundant legal anniversaries such as Information Communication Day and Science Day. Moreover, Environment Day is a legal anniversary, and there are anniversaries such as Wetlands Day, Earth Day, Water Day, and Meteorological Day as well. There are also issues of anniversaries being clustered on certain months of the year. Through this research, we suggest heightening the national awareness by categorization of legal anniversaries with consistency. Cooperation between supervising government departments is required, and related legislation can be improved as well. In the long run, not setting the anniversaries on specific dates can be an option as well. In order for the anniversaries to be chances to contemplate the meaning of national policies on science, technology, and environment, such laws and institutions must be the basis. On the other hand, such anniversaries can be celebrated in tandem with those of the international society and with participation of the citizens.
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