Earticle

본 연구에서는 2022년을 기준으로 한 소상공인 지원과 관련된 법제와 정책들을 분석하였다. 소상공인 지원법의 변화과정과 2022년 소상공인 지원정책을 분석하여 시사점을 얻었다. 이후 정책금융이 아닌 민간기업의 결제시스템 분야 내지 온라인대출정보연계대부업의 혁신의 필요성을 주장한다. 소상공인들의 지원을 위해 정부는 중소기업기본법, 소상공인 생계형 적합업종 지정특별법 과 같은 입법을 하였다. 소상공인 지원을 위한 세제 혜택까지 법제화하는 등 시간의 흐림에 따라 소상공인의 경영을 안정화하기 위한 제도적 장치는 강화되고 있다. 특히 2022년 시점에서 소상공인 정책자금 대리대출과 햇살론, 미소금융제도, 대환대출은 모두 적절한 정책적 의도를 가진 지원정책이다. 물론 정책 목표를 달성하고 금융에서 소외된 소상공인들에게 큰 힘이 되는 제도로 분석되었다. 그러나 대상에서 공통적으로 제외되는 소상공인도 발생한다. 이를 경우 금리가 센 사채시장으로 진입할 수도 있는 것이다. 두리 누리 지원사업과 노란우산공제제도, 희망리턴패키지제도, 나들가게 경영지원과 같은 사업은 맞춤형 지원정책이다. 그리고 신사업 창업사관학교와 소상공인 판로지원개척 프로그램에는 마케팅과 교육에 대한 정부지원이 반영되었다. 이러한 검토결과, 정부지원에서 소외된 소상공인 중 자금이 필요한 상공인에게는 1.5금융인 온라인투자연계금융업의 활용도가 높아져야 할 것으로 판단되었다. 온라인투자연계금융업계에서는 소상공인을 위한 상품을 마련하는 노력이 필요할 것이다. 그러나 온라인투자연계금융업은 금융안정성을 위해 업무범위가 한정되어 있다. 금융규제 박스와 같은 공식적인 금융혁신 정책 제도를 잘 활용할 수 있게 하는 정부의 배려도 필요할 것이다.

In this study, we explore the laws and policies related to support for microenterprises as of 2022. We also track the evolution of the laws supporting microenterprises and government policies for microenterprises in 2022. We also argue for the need to innovate the payment system of private companies and the P2P lending business. The government enacted a number of laws to support microenterprises, such as the Framework Act on Small and Medium Enterprises and the Special Act on the Designation of Types of Business Suitable for Livelihood of Micro Enterprises. Over time, the government has been bolstering the institutional mechanisms to help microenterprises stabilize their business, including legal provisions on tax benefits for microenterprises. In 2022, government policies for microenterprises such as the Indirect Loan, the Sunshine Loan, the Smile Finance, and the Debt Relief Loan seemed to be guided by appropriate purposes. The programs are capable of achieving their goals and providing significant support to microenterprises largely neglected by the finance sector. However, many microenterprises still lack access to financial services, which means they may have to resort to private loans with much higher interest. The Durinuri Program, Yellow Umbrella Mutual Aid, Hope Return Package, and Nadeul Store programs are tailored to microenterprises, while the New Business Startup Academy and the Sales Channel Development Program include government support for marketing and training. The discussions suggest the need to increase the use of online investment-linked financial businesses, or P2P loan businesses, by microenterprises not eligible for government support. Moreover, online investment-linked financial businesses need to develop products for microenterprises. However, under the current law, these businesses may only engage in the activities listed in the Act. Thus, the government needs to promote the use of innovative policies and programs such as the financial regulation sandbox.

Anyone who collects and uses other people’s data must meet legal requirements such as prior consent from the data subject. Data controllers who can legally process other people’s data must comply with the corresponding rules. In this context, controllers also disclose and inform all matters related to the processing of such data subject. After the OECD adopted the privacy principle of transparent and fair processing, most countries have accepted it, including the EU and Korea. The data subject must know who, for what purpose, and how their data is processed in order to control their data. The data subject’s right to basic information on data processing is the prerequisite for exercising their rights to rectification, erasure, etc. However, this basic principle has been mitigated as Korea revised the Personal Information Protection Act in February 2020. The PIPA introduced an exceptional case of data processing, pseudonymization. When data controllers process pseudonymized personal data, they can process it without prior consent from the data subject and without notifying the data subject of relevant information related to the processing. Korea publicly announced it would revise the PIPA by referring to European Union’s General Data Protection Regulation. Still, GDPR does not eliminate the data controller’s obligation to notify when pseudonymized processing. Only consent is exempted if the data initially collected is pseudonymized for compatible purposes such as statistical, scientific research, or archiving purposes in the public interest. This inconsistency appears because the systems of both laws do not match perfectly even though they are much similar. This paper suggests how the PIPA guarantees the data subject’s right to basic information when processing by a comparative study between Korea’s PIPA and the EU’s GDPR. Notification of data processing is crucial in ensuring the right to informational self-determination that the PIPA should accomplish as the ultimate goal.

The current neighbor relationship regulations in our civil law focus on water-related, and many articles were enacted 60 years ago and have been invalidated as a whole. Therefore, there is a point that is not suitable for the vertical and three-dimensional use control required according to the progress of industrialization and urbanization today. In addition, despite the emergence of a new Neighbor Relationship of Apartment Houses, the civil law of Korea did not provide a solution, so it was intensively reviewed in relation to the Neighbor Relationship of Apartment Houses. In Korea, many problems can occur between neighbors as the type of apartment housing accounts for 75% of the total. In recent years, the desire to escape from neighbor relationship has become a social problem, e.g. interfloor noise, png, companion animal, right to sunshine and view etc. Due to Corona 19, interfloor noise increased by more than 50% from the same period last year, but the reality is that dispute resolution is not easy. Conflicts related to parking are appearing in apartment houses. Although the number of vehicles owned per household is increasing, there are few places to park, and neighboring conflicts are occurring due to the dinged-my-door accident arising from “parking difficulties”. In addition, it was found that out of all households in Korea, one household out of four has companion animals. There are many disputes related to raising companion animals in apartment houses, but the procedure for resolving such disputes has not been legalized yet and is simply classified as one of the noise disputes between floors. In the case of right to view sunshine, it has been a problem for more than 30 years as a case of dispute in earnest, and now it is an era in which victims are looking for a remedy after examining the law about the blocking of sunlight and the blocking of good prospects. In light of this increasing number of disputes, Korean civil law is not playing its role, so we will review it so that it can play a role in civil law. But, there are few domestic and foreign research papers on the Neighbor Relationship of Apartment Houses, there are limitations to the research of the issue in depth. However, by studying the Neighbor Relationship of Apartment Houses in civil law, I intend to lay the foundation for solving various problems that arise among neighbors.

On 1979, after the sudden death of former president Park Chung-hee, the new military junta of Chun Doo-hwan and Roh Tae-woo took power through a military coup on December 12, 1979 by organizing the Army Security Command. Then on May 17, 1980, Chun Doo-hwan extended emergency martial law nationwide and conducted a coup. As nationwide protests and the Gwangju Democratization Movement took place against the coup, Chun crushed the protests with military power. On August 22, 1980, Chun discharged as a four-star army general, and the following month became the 11th president of Korea with rubber-stamp electorates. Chun held his presidency until February 1988. On December 12, 1979, when Chun and Roh Tae-woo took power by coup, they imprisoned any opposing individuals and promoted themselves as high-ranking generals while ignoring military law. While Chun and Roh ignored the Awarding Law, they awarded the Order of Military Merit to whoever cooperated during the December 12 military revolt in 1979. Also, on June 20, 1980, just one month after the May 18 Gwangju Democratization Movement, they awarded Orders of Military Merit to their military followers. The “Order of Merit party” is not just a past incident in Korean society. Not only under Chun’s military junta, but also under later democratic governments, such overissuances took place. Even under the Roh Moo-hyun and Lee Myung-bak governments, the military held such “parties” by themselves. The “self-awards” of the military were mocked by the general public. On March 12, 2006, the Roh Moo-hyun government held a Cabinet meeting and decided to do the following : Cancel and collect 16 Orders of Military Merit from former awardees, including Chun and Roh Tae-woo, in relation to the December 12, 1979 military revolt and suppression of the May 18 Gwangju Democratization Movement in 1980; 􁭑 According to Article 7 of the “May 18 Democratization Movement Special Act,” cancel and collect Orders of Merit from 67 awardees, including Park Jun-byung, in relation to the suppression of the Gwangju Democratization Movement. However, until now, of the cancelled awardees, only Chun and Jang Sae-dong have returned their Orders of Military Merit to the government. What is worse, although Chun and Roh Tae-woo both received the “Grand Order of Mugungwha” after retiring from the presidency, these orders were not cancelled. This is the shape of our society. In this paper, I will examine the “Order of Merit party” and cancellations of Orders of Merit issued to Chun Doo-hwan’s new military junta. Then I will look into the situation of this period as a “struggle of memory” in our forgetful society.

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.

The persistent educational underachievement of Latino children and adolescents in the United States has emerged as a public concern as Latinos are growing more rapidly than any other racial and ethnic groups. This article focuses on California Proposition 227, also referred in English in Public Schools initiative, which eliminated bilingual education in California public schools. Beyond legal analysis, the educational trajectory of Latino youths with limited English proficiency is discussed in terms of the impact of English Immersion on the current school context where Latino students are susceptible to daily social stress and discrmination, which in turn increases the risk for educatonal underachievement among Latino youths.

The Constitution Article 23 (3) of the South Korea stipulates that “Expropriation, use or restriction of private property from public necessity and compensation therefore shall be governed by Act: Provided, that in such a case, just compensation shall be paid.” Our Constitution Article 23 (3) has been called the taking clause. Taking Clause of the United States that can be compared with Article 23 (3) of our constitution is the Fifth Amendment. The Fifth Amendment of the United States constitution stipulates that “No person …… nor shall private property be taken for public use, without just compensation.” When we compared with the Taking Clause of the two nations, we can see that the constitution of the South Korea is expressed in ‘public necessity’, while the constitution of the United States is expressed in ‘public use’. But the legal scholars of the South Korea interpret substantially meaning of the two terms as the same thing. Therefore, it can be said that the two nations have the same article clauses. The nation where have raised a lot of debate in the legal interpretation of taking clause seems to be the United States than to be South Korea. In particular, after Kelo decision, the political and legislative countermeasures in the United States are throwing us a lot of implications. Here, the points that we need to pay attention are legislative countermeasures against the eminent domain abuse. In order to solve problems of eminent domain abuse in the South Korea, there are two methods. One is to clearly specify in detail the concept of public use; another is to prohibit private operator from condemning individual’s property. In this aspect, it is desirable to amend the constitution or the statues that the taking agency can’t expropriate the private property merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken. If this is difficult, it is desirable to amend the constitution or the statues that can restricts entirely the taking of private business operator for redevelopment of delighted areas as well as the taking of private business operator for economic development. It is not desirable to be imposed some citizens, because the public burden of public expropriation is to be imposed some citizens, not to be imposed on some citizens.

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.

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."

Despite the severity of child abuse in Korea, issues on child abuse have been relatively neglected in the shadow of other social issues. Due to the fact that the most of child abusers (“abuser”) are child’s parents or guardians, abusing acts have been considered mere domestic issues or child discipline issues as child abuse and neglect were interpreted in the view of child welfare and focused on protections of original family. Minimal interventions of national justice system and marginal criminal punishment on abusers caused by above reasons are often pointed as causes for the severity of child abuse and neglect. Governments have not made any noticeable efforts to correct the situations, and many children died of abuse and neglect in recent years. News on such inexcusable deaths, which have spread to general public through media, were an renewed awakening on severity of child abuse and neglect to the Korean society. As negative public sentiments turned to blame government’s indifference to the issue, public opinions demanded enactment of more stringent law that can impose more severe punitive measures and can entice government’s proactive interventions to prevent harms from abusers and to protect victimized children. In response to such public opinion, the National Assembly of Korea has legislated Act on Special Cases Concerning Punishments etc. of Crimes of Child Abuse and Neglect (Law Number 12341 enacted on January 28, 2014) on December 31, 2013 and additionally amended Child Welfare Act (Law Number 12361 partially amended on January 28, 2014.) The said acts are waiting to be implemented on September 29, 2014. The Act consists of 6 main articles and 64 supplementary provisions. The Act clarified that child abuse and neglect is a criminally culpable crime by utilizing a term, “Crimes of Child Abuse and Neglect.” (Article 2.4) On the other hand, the Act stipulates numerous special cases on criminal procedures in order for ‘protection of abused child.’ Some improvements were especially promising for prompt and appropriate disposal of child abuse cases and protection of abused child. Such promising improvements include expansive introduction of protective measures for abused child and prompt severance of abused child and abuser by intervention of child protection agencies and law enforcement officers at the initial stage of child abuse. The Act has some rooms to improve on following areas. First, because protection of original family is emphasized in children welfare, procedures to reflect abused child’s will must be established in order to protect child’s human rights even if required actions are protective measures for abused child. Second, the Act must be managed to focus on correction and reformation of abuser’s characters and behaviors rather than imposition of criminal punitive measures. Lastly, because authorities of child protection agencies have been significantly expanded in investigation and intervention of child abuse and neglect, systems for effective operations and prevention of abuse of authorities must be established.