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A Study on the Direction of Legal Support for Climate Technology in Developing Countries
동국대학교 비교법문화연구원 DONGGUK LAW REVIEW Volume 13 2020.12 pp.3-32
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7,000원
This study is aimed at exploring the direction of legislative support in developing countries in the field of climate technology. The direction of related legislative support can be specified when international trends on technology transfer and technical cooperation in developing countries are identified. Thus, the climate technology trends and the mechanism of supporting developing countries of UNFCCCC were analyzed. By this way, a system for identifying legislative needs in developing countries could be established. The most effective method is to conduct a demand survey of developing countries' governments and climate technology experts. However, the United Nations Framework Convention on Climate Change (UNFCCC), the Technical Needs Assessment for Climate Change at the UNDP, and the analysis of the results of the Climate Needs Assessment were also valid. It can be considered that developing countries identify national priorities for mitigation and adaptation technologies. It will be important to check the technical areas of major partner countries and to see if there are related laws through analysis of climate technology cooperation projects promoted by developing countries and Korea. In addition, if domestic companies participating in overseas climate change projects had difficulties in their projects to developing countries due to insufficient legislation, the insufficient scope of such legislation would be an area of legal support for developing countries. A consultative body will be formed with experts from the countries to be dispatched and experts who participated in the project to discuss the priority of the country, but the system can be oriented to maintain a steady understanding of the legal needs of officials and project managers in developing countries through the network. When providing legislative support, it is desirable to present promotion laws and regulatory laws related to detailed technologies by comprehensively considering the basic environmental laws, environmental policies, and political systems of developing countries. In particular, laws and systems have been developing for decades, so the approach to passing on best-fit, not best practices, will be valid. At this point, it would be most realistic to analyze legislation suitable for the technology of the country and accumulate such data in connection with the Korea Climate Technology Cooperation Project. And the process of getting developing countries to ask for demand on the legal system should also be made in the mid- to long-term. International organizations and state-run research institutes are also working on master plans related to climate change policies. However, simple national reports often apply only to introductions of legislation or ideal improvements. Efforts should be made to provide legal support for the central government's enactment of the law and the revision of local government's ordinances in which the project is underway.
동국대학교 비교법문화연구원 DONGGUK LAW REVIEW Volume 13 2020.12 pp.33-82
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10,000원
This study is developed in the following order. 1 Through the significance and theory of territorial clauses in the Korean Constitution, the academic community's discussion and attitude of precedents regarding the special nature of North Korea, the nationality of North Koreans, etc., analyzes the necessity and possibility of the police authority's invocation in future inter-Korean cooperation projects, considering the legal reality of inter-Korean relations and changes in the situation in East Asia, such as the unification of the Korean Peninsula in the future. 2 Based on the specificity of the North Korean region, the South Korean people's right to safety, public safety, order, and danger in North Korea are reviewed and the possibility is analyzed. 3 For disputes arising from inter-Korean cooperation zones, the resumption of the South-Bubu Military Commission based on the Basic Agreement between the two Koreas, among other things, the permanentization of the committee and the formation of committees in related fields are necessary. In particular, if it is the role of South Korea and civil servants to prevent and guarantee public safety, order, and physical and life risks to the Korean people in the inter-Korean cooperation area, the police authority in the inter-Korean cooperation area should be guaranteed by law and institution through cooperation with the military police through the dispatch of officials from the relevant ministries such as the National Police Agency, the National Intelligence Service, the Ministry, the Ministry of Justice, the Foreign Affairs and the relevant ministries. Furthermore, the paper concludes with the proposal of a plan on whether to invoke the investigative authority judicial matters in the inter-Korean cooperation area and the investigation cooperation relationship, and a plan for the inter-Korean police and investigation cooperation system to protect and guarantee the basic rights of South Korean citizens, businesses and organizations participating in the current inter-Korean exchanges and cooperation.
The Protection of Human Rights in the perspective of Domestic Courts on Treaties
동국대학교 비교법문화연구원 DONGGUK LAW REVIEW Volume 13 2020.12 pp.83-126
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9,100원
It has been argued that domestic courts seem passive in the application of international law in consideration of the execution of decision, accruing to the restraint of courts. Courts have justified its reluctance to invoke human rights treaties directly for reason of non-self-executing effect of treaties. However, the doctrine of non-self-executing effect does not correspond to the explicit provision of the constitution on the relations between international law and municipal law. The constitutions of most states explicitly manifest to treaties the same status as municipal law. In the process of a treaty having domestic effect through its domestic implementation, the most significant aspect is for a treaty to be invoked and applied as a norm in the court proceeding. If the treaty is not practically applied in the court proceedings as the judicial norm, even after the accession to the treaty, the significance of accession might not eventuate in the protection of human rights of individuals.
A Study on the Restriction of Membership of Public Officials' Workplace Council
동국대학교 비교법문화연구원 DONGGUK LAW REVIEW Volume 13 2020.12 pp.127-148
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5,800원
The Council of Public Officials' Workplaces was introduced on January 1, 1999 in a transitional period before allowing public officials to join the public officials unions according to Article 33 (2) of the Korean Constitution. As the Establishment and Operation of Public Officials' Unions Act was enacted on January 27, 2005 and enforced on January 28, 2006, the basic labor rights of public officials under Article 33 (2) of the Constitution were allowed to the public officials and really exercised by them. Since then, many Workplace Councils were converted into unions or new unions were also established. Since then the Workplace Council experienced a long-term crisis of identity. The situation seems to be changing somewhat positively, after the Workplace Council is allowed to the police and fire officials who cannot join the union. At this moment it is necessary to review the restriction of membership of the Workplace Council and to re-examine the objective of the prohibition of membership of commanders and supervisors. In this article, the ground of restriction of membership of the Workplace Council shall be reviewed and questioned whether the restraint on the commanders and supervisors is necessary.
Comparison of Outside Director System Between Korea and Japan
동국대학교 비교법문화연구원 DONGGUK LAW REVIEW Volume 13 2020.12 pp.149-199
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10,200원
Korea's outside director system was introduced in 1998 at the recommendation of the IMF after the Asian financial crisis, but outside directors are still not functioning properly even 20 years after its implementation. Following the globalization of corporate management, the Korean Commercial Law was revised three times as part of the global trend of corporate governance. The audit committee system, which consists of outside directors and major outside directors, is a universal system around the world. Companies are operating in most OECD member states, including the United States, Australia, Japan, the United Kingdom and Belgium. Qualifications for outside directors are strictly restricted to those who are not the largest shareholders, major shareholders, executives and employees of the company, or spouses and lineal descendants of executives and executives who have been executives and employees within the past two years. It is intended to represent the interests of all shareholders through effective monitoring and checks on controlling shareholders and management in almost the majority of companies. As Japan entered the recession in the 1990s, it began to recognize the importance of outside directors, and the result was the revision of the Commercial Law. The Commercial Law of Japan was amended in May 2002 and has been in effect since April 2003. The revised Commercial Law allows companies to choose by operating under the existing board system or by setting up three committees of remuneration, audit and personnel committees like the United States, or with more than 50 percent of outside directors in the composition of each committee. This move by Japan is drawing attention in many areas. This is because Japan typically has a structure in which in-house directors control corporate management. It is also not easy for shareholders other than major shareholders to recommend independent and neutral figures as candidates for outside directors, both legally and in practice. In Korea, listed companies must have outside directors under the Securities and Exchange Act, which requires discussions on approval or opposition, recruitment, and utility, but no progress has been made in the interpretation and operation of the current law. Based on these problems, this study aims to compare the legislation of the outside director system between Korea and Japan on the outside director system, to identify problems that fail to faithfully perform the functions of check and supervision of major shareholders and management, and as an alternative, to seek ways to strengthen the independence and efficiency of the outside director system and to propose an alternative.
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