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DONGGUK LAW REVIEW

간행물 정보
  • 자료유형
    학술지
  • 발행기관
    동국대학교 비교법문화연구원 [The Institute of Comparative Law and Legal Culture]
  • pISSN
    2287-9676
  • 간기
    연간
  • 수록기간
    2012 ~ 2025
  • 주제분류
    사회과학 > 법학
  • 십진분류
    KDC 360 DDC 340
Volume 12 (5건)
No
1

6,300원

This study is about legislation in the United States and Japan to adapt to climate change. The United States has withdrawn from the climate change negotiation and is known to be more passive than EU countries in compliance with international human rights on climate change. Also, Japan has been known for its lack of human rights protection for vulnerable local residents and workers in its post- Fukushima recovery measures. In this study, legal issues related to climate change adaptation were studied in the United States and Japan. In the U.S., the Climate Change Adaptation Act has also been developed by each state. As for human rights related to climate change adaptation, it follows the theories and judgments of international organizations. The U.S. will also be forced to comply with international human rights laws and international environmental standards. Recently, there have been cases in the U.S. that recognize the government and businesses' responsibility for climate change. And human rights organizations in the U.S. are also petitioning for human rights related to climate change. In particular, the U.S. citizen can file various types of lawsuits related to climate change. Foreigners can also file lawsuits for illegal activities. In the case of Japan, the 2018 Climate Change Adaptation Act made it easier for the government to pursue policies to cope with climate change. Japan's enactment of the Climate Change Adaptation Act and its provision of support for civilian activities or disaster relief are aimed at protecting people's human rights from climate change. Also, the emphasis on private participation and regional cooperation can be seen as a human rights-oriented factor.

2

Monetary Sanctions for Culpable Corporation

Song, Ki Dong

동국대학교 비교법문화연구원 DONGGUK LAW REVIEW Volume 12 2019.12 pp.29-58

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7,000원

Corporations are very important and powerful actors in modern economic and commercial life. They can also make mistakes and commit crimes: corporations too need to be controlled. However, traditional models of criminal liability and punishment applicable to human beings cannot prevail. It should be addressed new punishment for culpable corporations. By the way, Corporate liability can be discussed in terms of liability falling within the ambit of (1) civil liability, (2) criminal liability. Some scholars argue in favor of civil, instead of criminal, liability. Some scholars, who believe that civil liability is better than criminal liability in regulating corporate crime, overlook the point that criminal punishment has traditionally been invoked as a symbol of retributive justice. They seem to disregard the mutually different purposes of civil and criminal laws. For example, it should be underlined that deterrence is not the unique concern of criminal law but one of its purposes. Beyond deterrence, the law is concerned, not least, with fairness between parties while instituting, in the first place, justice through criminal law. Feinberg has given a definition of punishment: ‘Punishment is a symbolic way of getting back at the criminal, of expressing a kind of vindictive resentment and it is a conventional device for the expression of attitudes of resentment and indignation’ Traditionally, scholars support fining as a monetary sanction applicable to corporate criminal acts. Lawyers and economists look at offending corporations as ‘rational calculators’ unwilling to commit a crime if its cost will outweigh its benefits. Therefore, monetary penalties can be an important and effective corporate sanction. In this article, it is suggested that increasing the amount of fines should be imposed for a corporate crime. Also, this article stressed that Equity fine as well as income related fine system should be introduced.

3

9,600원

In Korea, for victims of sexual harassment who are looking for remedy, different laws require people to file claims through different bodies. In the event of a violation of the Gender Equality Act, including disciplinary measures of employers against perpetrators or actors under the Equal Employment Act, the complaint should be filed with the Ministry of Employment and Labor; in the case of violation of the National Human Rights Commission Act, it should be filed with the National Human Rights Commission. At the same time, it is also possible to file a lawsuit in the court. However, administrative remedies for victims of sexual harassment are largely possible in two ways. First, there are administrative remedies reached through recommendations or mediation through the National Human Rights Commission. Second, the Ministry of Employment and Labor can enforce penalty against employers for violating mandatory provisions; however this does not provide direct remedy to the victim, but rather sees punishment of the employer who is legally liable for the offense. This study examines Korea's legal system and limitations on remedies for victims of sexual harassment. It also looks at the Canadian system in order to provide recommendations for the Korean system.

4

7,600원

The United Nations and international community condemned, sanctioned and made recommendations to North Korea for its serious violations of human rights. In particular, the UN Human Rights Council and General Assembly considered and passed resolutions on human rights since 2003. North Korea, ignoring the UN resolutions, revolted and blamed the UN for intervening in its domestic affairs. Having formed the Commission of Inquiry (COI) on North Korean Human Rights in 2013, the UN released the COI report after conducting the testimony of North Korean refugees and investigations. The COI report made recommendations that North Korean leadership be referred to the International Criminal Court on charge of crime against humanity and the issue be dealt with by the Security Council. Following the report, North Korea responded actively, vindicating its position by the participation of the foreign minister in the UN General Assembly and submitting national reports required by human rights treaties. The U.S. and Japan took measures to enact domestic laws to help support to improve upon North Korean human rights situation and resolve the issue of abduction of its own nationals. The ROK, after big political wrangling, enacted the act in 2016. More efforts and attention have been required of the government to establish the Foundation to conduct policy research and other relevant work and to achieve its effectiveness. Looking at North Korean human rights laws of these countries, the laws shall not be applied to the territory of North Korea directly, and therefore the issue of direct ex-territorial application of domestic laws is not raised. In this regard, the domestic laws have inherent limitation in their ex-territorial application to foreign countries.

5

10,600원

Most of the human rights violations involving foreign workers occur with non-professional foreign workers. Visiting overseas Korean workers have the freedom to choose their workplace, so there is not much difference in labor law protections from their Korean workers. For professional foreign workers, there are some limitations on labor protections in certain areas, but those differences can be resolved by transferring to another workplace. However, there are many limitations for non-professional foreign workers in the protections they receive under Korean labor law. The working conditions stipulated in the Labor Standards Act are governed by the principle of equal pay for equal value work regardless of whether the workers are Korean nationals or not. The principle is that the worker is paid equal to the amount of work he or she has done. There may be differences between foreigners and domestic workers depending on their language abilities and work proficiency, but when treatment violates the principle of proportional input, this difference can be deemed unjustifiable discrimination. Foreign workers, unlike Korean nationals, receive minimum wage regardless of their years of service. Annual paid leave, which is guaranteed under the Labor Standards Act, is also not enforced for foreign workers, and there is almost no monetary compensation for unused annual paid leave. In addition, unlike retirement allowance, the Departure Maturity Insurance is paid to foreign workers only upon leaving the country. The exercise of the three labor rights by foreign workers is the only opportunity to improve their working conditions. The Labor Standards Act sets the minimum standards, but without union activity, wage increases or improvement in working conditions cannot be expected. Since this is the case, foreign workers need to engage in labor union activities. If union membership is restricted, the alternative is to activate the labor-management council system to improve their welfare and access to rights through a large number participating and cooperating. The social insurances for foreign workers must be insured to protect them in principle. Employment Insurance is not compulsory. Unsubscribed foreign workers cannot receive unemployment benefits, nor Employment Insurance support for maternity leave or parental leave. Non-professional foreign workers should be excluded from application of the National Pension Plan as their short-term visa status does not allow them to meet the requirements to receive oldage pension.

 
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