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동국대학교 비교법문화연구원 DONGGUK LAW REVIEW Volume 11 2018.12 pp.3-36
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7,600원
Today, the issue of false reporting, or fake emergency call is a major hindrance to police operation, causing a huge waste of police force and creating a vacuum in public security. It is true that Korean Police have been dealing with the problem of false reports through criminal and civil measures, but they have failed to function as an effective solution. This article points out the limitations of such criminal and civil easures to false reports, urging an adoption of a paradigm of Police (Administrative) Law, and in particular, suggesting approaches based on Police Cost Law (Polizeikostenrecht in German) theory. The main point of the debate is whether police can charge the false reporter – a so-called ‘danger inducer’ who has Police Liability (Polizeiverantwortung) under the theory of Police Administrative Law - for the Police Costs that were spent for danger prevention measures. It is necessary to first understand the concept of Police Cost, then to examine if the police are able to demand reimbursement for Police Costs from danger inducers with two aspects; an aspect of legal theory and the aspect of legislation. First of all, in a legal theoretical aspect, despite the public interest of the danger-prevention tasks and the principle of tax state, the police costs incurred to remove danger caused by a particular person could be charged to the danger inducer in certain areas (e.g. false reporting). Even if it is acknowledgeable to charge the danger inducers for police costs (which were spent to prevent danger), comprehensive or separate provisions for imposing police costs must be prepared in terms of actual legislation, since charging police costs is subject to legal provision. In addition, if unliable citizens are harmed by the danger-prevention measures taken by the police based on false reports, it is required to seek remedies for them, one of which is an compensation for loss to the victims. A variety of factors, such as the public perception of law, limit of bearableness, and the gravity of danger should be considered comprehensively in order to determine the 'special sacrifice' which is a requirement for compensation for loss. Furthermore, regarding the standard of compensation for loss, the police should make an objective and reasonable level of compensation in consideration of the high public interest of police measures and the public perception of law, away from the consistent stance of Korean Constitutional Court and Supreme Court who have been adamant on ‘full compensation’. In case that the police compensated loss to the people damaged by the danger prevention measures, the right of recourse of the police on danger inducers should be admitted. In order to root out the problem of false reporting and to properly deal with it when happens, it is imperative that the police have a legal basis of imposing police costs to false reporters and of demanding reimbursement for compensation which the police paid to unliable citizens. Above all, a public recognition that the police can charge false reporters for police costs should be established.
Overview of Korean Bioethics and Safety Act
동국대학교 비교법문화연구원 DONGGUK LAW REVIEW Volume 11 2018.12 pp.37-58
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5,800원
It has been enacted since 2005 and completely amended in 2012 in Korea called Korean Bioethics & Safety Act("KBESA")' that is a general and basic statu te providing basic principles for researchers to protect human subjects by writi ng protocols and informed consent forms, and establishing Institutional Revie w Boards("IRBs") to protect rightsㆍsafetyㆍwelfare of human subjects. KBESA stipulates several provisons regarding how to deliberate national bioethics & s afety issues, IRBs, various types of researches, prohibition of reproductive clo ning & xenotransplantation, genetic test, administrative sanctions, and crimina l penalties, etc. as well as provisions regrading how to protect human subjects. However, there However, there are critical opinions on the current KBESA for not responding to the bioethics & safety issues properly caused by the outcomes of the rapid progress of biomedical science. Especially, the fact that the different topics, such as human subjects research, human materials research, human embryonic r esearch, gene therapy research, etc. are included in the one size fits all KBES A causes difficulties to regulate them reasonably. Also, there are many critical opinions on the matter of NBC, gene therapy research, using fresh eggs in hu man embryo research and donation for fresh eggs for research purpose, the sc ope of genetic test, etc. In order to answer these critical views, there are sugge stions as follows: to break KBESA into two separate statutes: KBESA as a general & basic statute describing states obligations and giving fundamental p rinciples on bioethics & safety, and KBESA as an individual statute regulating the specific topics features, to provide the real hammer powers such as su pporting staffs, office, and budgets for NBC to implement its functions properly, to set up multistage review mechanisms on protocols and add extra elements such as unique risk & benefit, longterm follow up, consideration on pregnancy, autopsy, and t he way to respond media, etc. in the informed consent form to protect human subjects in gene therapy research, to allow researchers to use fresh eggs in human embryo research and donate them for the purpose of research, to ex pand the categories of genetic test with the adequate & efficient monitoring sy stems.
동국대학교 비교법문화연구원 DONGGUK LAW REVIEW Volume 11 2018.12 pp.59-116
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11,200원
he Republic of Korea (South Korea) has a dual legislation system for national legislation and local legislation, under which the National Assembly of the central government legislates acts, while the council of each local government legislates municipal ordinances. However, the local autonomy system was resumed by the constitutional amendment of 1987, and it was 1995 when local councils were eventually formed through the whole amendment of the Local Autonomy Act and the rearrangement of election law. Therefore, the legislation system of local councils is still at the transitional stage and has many loopholes and defects, compared with the legislation system of the National Assembly. In the National Assembly of the Republic of Korea, 9 aides and assistants are assigned to each assembly member, and the National Assembly Secretariat with the Expert Advisory Office and the Legislative Counsel Office assists assembly members, Standing Committees, and the National Assembly in performing their functions of legislation, together with the National Assembly Budget Office, the National Assembly Research Service and the National Assembly Library. In fact, thousands of experts in legislation and other fields works for such organizations. The National Assembly Research Service was established by referring to the Congressional Research Service (CRS) of the United States and has already reached a level not inferior to the CRS in its scale, expertise and activities in related fields. Moreover, the National Assembly recently established the National Assembly Futures Institute to strengthen its function of research. Meanwhile, the expertise and scale of human resources and functions of the National Assembly Legislative Counsel Office for legislative support are evaluated to have surpassed those of the Ministry of Government Administration which is comprehensively responsible for administrative legislation by the Government (Executive Branch). Quite unlike legislative expertise or the legislative support system of the National Assembly, those of local councils in Korea appear to still fall behind. The scale and expertise of expert advisors in local councils are incomparable with those of the National Assembly, and it would not be wrong to say that even such human resources are limitedly permitted only to metropolitan/provincial (City/Do) councils. Besides, no personal aide or assistant is assigned to local council members. Even educational programs and functions for local council members or public officials of local councils on legislative support are still at the incubating stage, as such programs and functions are provided by the State, i.e., the central government. Nevertheless, under the State-oriented rule of law, comprised of, so-called, the principle of no administrative organization without a law, the principle of no budget (finance) without a law and the principle of statutory reservation, all of such tasks are controlled by laws and budgets of the State, and the structure under which local councils can not develop relevant systems on their own persists. Local councils are organizations representing residents, as guaranteed by the Constitution. In order to normalize local councils as legislatures, a reform seems to be required to have them provided with legislative support functions, as provided to the National Assembly. What should be done first, among others, to attain this end are to assign personal aides and assistants to local council members, reinforce human resources and organization for legislative support, mainly for expert advisor offices, and to reform the legislation on local administrative agencies, so that each local council is given the authority to determine its own organization and missions independently. The local autonomy system in Korea can be referred to as a representative case of growing democracy of a newly emerging country, among the countries decolonized or newly established after the World War II. The establishment and development of the local autonomy system in Korea, particularly, the strengthening of local councils, can become a textbook for many newly emerging countries. In this regard, the implications for the world of the model that Korea plans to implement to strengthen legislative abilities of local councils will be considerably significant.
The conflict of legal value and legitimate regulation in information society
동국대학교 비교법문화연구원 DONGGUK LAW REVIEW Volume 11 2018.12 pp.117-146
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7,000원
As a highly information-oriented society is developed, countries and corporations are trying to devalue human rights for economic benefits and convenience. However, we need to deeply and frankly consider what it means to live safely in the information society. It should not be considered safe to protect information networking to make the Fourth Industrial Revolution faster and smoother. We have to consider about what is the development of technology for. We should not only shift our viewpoints to focus on material things, but we should now consider human rights and fundamental values, constitutional order and community interests. So I examined some real problems and suggested ways of solving the problems by the legislative policy solution, judgments of court, theory solution method etc. We will be able to work out the harmoniously conflicting values in future governments and societies
동국대학교 비교법문화연구원 DONGGUK LAW REVIEW Volume 11 2018.12 pp.147-174
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6,700원
The fertility rate had increased rapidly after the Korean War but has shown gradual decrease after the introduction of government-driven birth control policies. Consistent decrease of fertility rate has reached a dangerous level below 1.00 beyond the level capable of maintaining the status quo. By the low fertility rate and relocation of youth population to capital regions, local cities are facing the risk of extinction, in addition to the issues of aging society. Until now, city planning has focused on growth-oriented policies and has failed to cope properly with the era of population decrease. There have been policies such as innovative cities aiming to move metropolitan population to local areas but they have not been successful in achieving the intended effects. Local autonomous entities are establishing various plans based on the assumption that development would lead to population increase, which is far from the reality. In the era of population decrease, local areas are facing the risk of extinction, beyond the issues regarding aging society. Resolving these issues requires adjustment of the previous growth-oriented plans and policies. Population projection and coping methods should take the top priority and local autonomous entities should be granted with proper authorities to be capable of planning. The sense of crisis should be shared by emphasizing that failure of plans may cause the extinction of the cities. Rather than relying on administrative districts, the local autonomous entities should cooperate with one another in establishing joint city plans based on life zones. Population decrease indicates rapid changes not only in the land planning but in the overall society. By breaking away from the previous growth-oriented paradigms and positively taking relevant measures for population decrease, we will be able to set right directions for land planning in accordance with the era of population decrease.
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