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한양법학

Han Yang Law Review

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수록범위 : 1권0호(1990)~35권0호(2011) |수록논문 수 : 642
한양법학
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저자 : 조성민

발행기관 : 한양법학회 간행물 : 한양법학 35권 0호 발행 연도 : 2011 페이지 : pp. 3-3 (1 pages)

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2발표논문 : 사회보장의 시장화와 자기결정

저자 : 이호용 ( Ho Yong Lee )

발행기관 : 한양법학회 간행물 : 한양법학 35권 0호 발행 연도 : 2011 페이지 : pp. 11-36 (26 pages)

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Self-supporting, self-reliance, self-determination are modern key words in social welfare. To encourage self-supporting is the most fundamental purpose of modern social welfare, and self-determination is an ultimate constituent of self-supporting. In this paper, I intend to define self-determination in social welfare compared to general self-determination or self-determination right in law. And marketization of social welfare is main method to promote self-supporting of requiring social service, indeed marketization of social welfare promote and expend self-determination? to confirm of that is the main purpose of this paper. Self-determination in social welfare is characteristic as follows. First, self-determination might not go with self-responsibility. Second, self-determination is not connected right through to self-determination. Third, it is not easy to accomplish pure self-determination, because social services are not only connected with many partners, family, social worker, public social welfare servant, but also social servises are demanded of finance. Fourth, the nonuse of self-determination is use of self-determination too. marketization of social welfare is standing on the assumption that economic basis(rational economic human, pareto efficiency etc.) But these assumptions do not coincide with the practice social case work. Market in social welfare should have not only freedom but fairness or equity and social solidarity as elements of that. In conclusion, I could confirm through this study that marketization of social welfare does not promote or enlarge self-determination of social service users.

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3발표논문 : 자동차 사고로 인한 인적 손해에 있어서 손해배상의 범위

저자 : 박영민 ( Young Min Park )

발행기관 : 한양법학회 간행물 : 한양법학 35권 0호 발행 연도 : 2011 페이지 : pp. 37-72 (36 pages)

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When casualty occurs due to traffic accident, the resultant damages are divided into active damages related to medical expenses and passive damages related to lost profits and mental damages related to compensation. The three factors for the lost profits, which constitute most part of compensation for damages, are the victim`s income, fault, and disabilities. So, in each of these three factors, the conflicts between the offender and the victim can become acute. This paper analyzes the existing precedents and theories on the income and the disabilities and presents the relevant criteria and alternatives. Income is determined by tax data and if it is not proved by tax data, statistical income, wages of technical workers are applied and when these also cannot be applied, wages of a day laborer of farming villages are applied. Accordingly, I examined through precedents what methods of proof are needed when income is to be proved by tax data, and what methods of proof are needed when income is to be proved in the case of statistical income and technical workers. Currently disabilities are evaluated by applying McBride methods which are considered most appropriate methods at present but have limitations of being unable to keep up with changes in the occupation clusters following the flow of the times and changes in medical technologies. So, new criteria by which modern occupational clusters and medical technologies can be reflected and the existing diverse methods of evaluating disabilities in integrated ways can be applied and the organizations that will practice the criteria need to be established. Compensation for casualties due to traffic accidents should be judged based on concrete validity, and the disputes over income and disabilities continue to exist as long as traffic accidents exist, and it is the tasks of judicial and medical circles to minimize such disputes by establishing more technically sophisticated and systematic criteria.

KCI등재

4발표논문 : 군형법상 추행죄의 문제점과 개선방안

저자 : 박찬걸 ( Chan Keol Park )

발행기관 : 한양법학회 간행물 : 한양법학 35권 0호 발행 연도 : 2011 페이지 : pp. 73-104 (32 pages)

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Article 92-5, Military Criminal Act of Korea provides that a person commits sodomy or an indecent act on another shall be punished by imprisonment for not more than two years(Amended by Act No. 9820, Nov. 2, 2009). But this clause is too vague. It is not clear the benefit and protection of the law and concept, method, subject and object of indecent act. Nevertheless, The Constitutional Court of Korea and The Supreme Court of Korea has handed down its decision with constitutional. However, this trend requires special attention, although the Constitutional Court of Korea ruled in 2002 and 2011 that a sodomy clause which penalizes sodomy or an indecent act is constitutionally correct, the clause was indeed unconstitutional, with four out of its nine justices speaking in one voice for the stated ``second sodomy judgment``. Article 92-5 have a matter of great problem in relation to definitude of the principal of ``nulla poena sine lege``, fundamental right to privacy and sexual self-determination. Therefore, an immediate revision of this provision is needed. In conclusion, Article 92-5 should be departmentalized. First, a person who, through fraudulent means or by the threat of force, commits an indecent act on same sex, shall be punished by imprisonment or a fine. Second, a person who, through fraudulent means or by the threat of force, commits an pseudo-sexual intercourse using parts of the body, such as the mouth and anus, or implements shall be more heavily punished than the former. Third, a person who, have a homosexual relationship between consenting adults, shall be decriminalized.

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5발표논문 : 자본시장법상 파생결합증권에 대한 연구 -주식워런트증권을 중심으로 한 파생결합증권의 법적 성질과 관련 문제점 검토-

저자 : 임정하 ( Jung Ha Lim )

발행기관 : 한양법학회 간행물 : 한양법학 35권 0호 발행 연도 : 2011 페이지 : pp. 105-135 (31 pages)

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Under the Capital Market Act, Derivatives-Combined Securities are defined as instruments bearing the indication of a right under which the amount payable or recoverable shall be determined on the basis of a predetermined formula linked to fluctuations in the price of any underlying assets, an interest rate, an indicator, a unit, an index based upon any of the aforementioned, or any other similar factors. Unlike the Securities Transaction Act and its Enforcement Decree which were abolished upon the enactment of the Capital Market Act as of February 4, 2009, where definitions of Equity Linked Securities ("ELS"), Equity Linked Warrants ("ELW") and other derivatives linked securities ("DSL") were provided respectively, the Capital Market provides for the definition of "Derivatives-Combined Securities" only, which is deemed to include all the concepts of ELS, ELW, and DLS. As the Capital Market Act classifies "financial investment instruments" into securities and derivatives, this study reviews on criteria for such classification and legal characteristics of the Derivatives-Combined Securities, particularly focusing on ELW the economic substance of which is understood to be identical to the vanilla option. Under the Captial Market Act, the Derivatives-Combined Securities is regarded as one stand alone type of securities separate from Debt Securities taking into the consideration risk to be arising from the derivatives embedded in the instruments and policy reasons for securities regulation. Given that Article 4 (7) of the Capital Market Act defining Derivatives-Combined Securities does not include a right to purchase the individual shares underlying the Derivatives-Combined Securities and that it is noted that in the ELW market, ELWs with cash settlement rights only are being traded, ELWs need to be interpreted as bearing the right for the cash settlement. As such, Derivatives Combined Securities need to be excluded from the securities subject to tender offer and disclosure on holding of shares, etc under Articles 133 and 147 respectively of Capital Market Act.

KCI등재

6발표논문 : 복수국적자의 외교적 보호에 관한 소고 -개정 국적법에 대한 국제법적 관점에서의 해석을 중심으로-

저자 : 이진규 ( Jin Kyu Lee )

발행기관 : 한양법학회 간행물 : 한양법학 35권 0호 발행 연도 : 2011 페이지 : pp. 137-166 (30 pages)

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Multiple nationality is the subject that may cause various issues in the area of international law. Especially, diplomatic protection in respect to a multiple national is a very controversial issue. It can`t be asserted yet that standards of diplomatic protection in respect of multiple nationality have been firmly established. To some extent, however, the standards are being settled through being treated in many arbitral decisions and codification endeavors of ILC. There is still support for the requirement of a close connection between States of nationality and a multiple national in case of exercising the diplomatic protection by one or all of the States of nationality against the third State. According to a majority opinion, however, any State of nationality may exercise diplomatic protection, and even jointly. This rule has more recently been followed and upheld by many cases and ILC. Based on a traditional view, there is non-responsibility rule between States of nationality with respect to the exercise of diplomatic protection by one State of nationality against another State of nationality. This view is still considered as the principle related to the exercise of diplomatic protection between States of nationality in contemporary international law. Some arbitral decisions and codification of ILC, however, show that the State of effective or predominant nationality may bring proceedings against another State of nationality in an exceptional situation. This also makes it clear that the burden of proof is on the claimant State to prove that its nationality is predominant. Korea allows multiple nationality by the amended Nationality Act. Although there is still a negative perception on the multiple nationality, the allowance of multiple nationalty is a revolutionary change in the legal system of nationality in Korea. The issue of the exercise of diplomatic protection in respect of a multiple national had been discussed in the beginning of the work for amendment of the National Act. The amended Act has not finally come to include such a clause. Consequently, there is no provision to describe the factors to be taken into account in exercising diplomatic protection for a multiple national in the Act. We, however, can infer from the interpretation of the Act that such factors include the application of Korean domestic laws, legal marriage, habitual residence, special contribution to Korea, distinguished talent in various fields and military service, etc. Korea is currently developing domestic legal system in various areas including nationality. In other words, it means that Korea should take responsibilities for nationals as subjects or objects of its legal system. Focusing on the fact that the exercise of diplomatic protection still entirely depends on the will of State, we should bear in mind that an effective protection of multiple nationals can be achieved by government`s strong will to reflect the current international law in domestic legal system and to execute policies established through such endeavors.

KCI등재

7발표논문 : 노동조합의 분열에 따른 재산귀속여부

저자 : 방준식 ( Joon Sik Bang )

발행기관 : 한양법학회 간행물 : 한양법학 35권 0호 발행 연도 : 2011 페이지 : pp. 167-189 (23 pages)

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This Paper is, when a Union internally generated conflict and divided into two or more Unions, how to solve the problem of the title to the property of former Union. We have rules about the division of the Union by a lawful way in the Labor and the Labor Relations Adjustment Act. But we have to admit the division-concept except the division of the Union by a lawful way that decide by a majority of those present of the general meeting. Because the division-concept is needed when it is not able to decide in the general meeting and not able to abide by his decision. Thus, when we admit the division-concept in the union and study on the title to the property due to the division of the union, the respective unions are the sole owners. Because the union is founded in order to conclude a collective agreement for working conditions, etc. By extension, Gesamteigentum in the civil law is suitable for a classic village community, is not suitable for a modern union in the labor relations. According to the legal principle of the sole owner, when a Union divides into two or more Unions, the property of the former union is the shares of the respective unions in proportion to union members. Therefore, there is no shares and claims for division of the union members.

KCI등재

8발표논문 : 음주운전 관련 법제의 문제점과 개선방안 고찰

저자 : 황현락 ( Hyun Rak Hwang )

발행기관 : 한양법학회 간행물 : 한양법학 35권 0호 발행 연도 : 2011 페이지 : pp. 191-227 (37 pages)

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There is growing explosively the volume of traffic in Korea. We are living times automobile ownership of twenty million being very close at hand owing to the improved standards of living. And social costs caused by traffic accidents is increasing every year. Among them, increase of traffic accident caused by drink-driving is coming the worst part to the authorities. Every year the number of traffic accident caused by drink-driving is beyond 30 thousand and more than 50 thousand people are hurted. National Police Agency estimates more than a thousand people die every year in drink-related driving accidents. Prominently higher rate of casualities in drunk driving accident tells us fatal dangerous of drunk drive However, in the process of DUI crackdown is the lack of effective law enforcement. Statistically examine, the police crack down on drunk driving every year hundreds of thousand, but the crackdown is not efficient. Legal problems occurring in the DUI crackdown field everyday are various. There are filing many civil complaints born of law misunderstanding in the DUI crackdown field. In that cases they bring a matter before the court, or distrust the government authorities and police. In this paper, the problem of the application of these laws is to develop and seek improvement to examine case by case basis. I will narrate amendments of traffic enforcement related the traffic laws and system and look into legislative amendments based on precedent and consider problems and their remedies about clampdown on drinking and driving. The Road Traffic Act in order to speed up the flow of traffic and prevent traffic hazard was established by law on December 31, 1961. After that, The Road Traffic Act was reformed fifty times. It says that road traffic has become today`s the major concern. In the foreseeable, the accident prevention will become the key word for the first-class advanced nation.

KCI등재

9발표논문 : 행정지도와 법률유보 및 구제에 관한 이론적 검토

저자 : 박효근 ( Hyo Keun Park )

발행기관 : 한양법학회 간행물 : 한양법학 35권 0호 발행 연도 : 2011 페이지 : pp. 229-248 (20 pages)

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Although the administrative guidance which is done by administrative subject through the consent or cooperation of administrative object has not received great attention in traditional theories of administrative law, it became one of the critical reviews modern administrative law because it appears in today`s various administrative areas and the realistic functions are various. And the applicability of the principle of the administration by the laws especially the relation between the principle of legal reserve and administrative guidance has been reviewed theoretically. Traditionally, the administrative guidance has not a legal binding in the conventional theories on the administrative law, and it has not been regarded as having the given authority of the law. And it becomes to be treated as the object of administrative law because of functional importance nowadays. Therefore, it needs to analyse basis nature and legal procedure of administrative guidance to accurately seize the form of administrative act. It can be said that the requirements for the administrative guidance of administrative agencies are governed by the same principles regulating the inner authorities of administrative organization. Also the organizational norms with legal forms like administrative regulations are governing the authorities. Although the administrative guidance are non-legal act executing to private people and belongs to external relations, it also governs the legal principles of the administrative internal relations. So, it is reasonable to differentiate the legal relations surrounding the administration into administrative internal and external relations and to explain that the different legal principles governs each of that legal relations. Our administrative law has mainly persued security of fitness of law on the basis of traditional principles of administrative law. So people`s interest infringed by non-powerful acts involving the administrative guidance could not be an object of relief. So, above all, it is important to study whether the relief of administrative guidance is possible.

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10일반논문 : 국내적 인권과 국제적 인권? -인권 개념의 이중성에 대한 소고-

저자 : 황준식 ( Jun Shik Hwang )

발행기관 : 한양법학회 간행물 : 한양법학 35권 0호 발행 연도 : 2011 페이지 : pp. 249-279 (31 pages)

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As human rights have evolved into a comprehensive world view which dominates the current global legal and political discourse, the inevitable conceptual ambiguity came along. To try to clarify this ambiguity, one needs to look into the history of human rights. The concept of human rights is said to be deeply rooted in the Western philosophy. The development of the natural rights thinking of 16th-18th centuries combined with the Revolutions of America and France established the modern basis for human rights of today. It is also known that the United Nations led the global efforts related to modern international human rights law. Samuel Moyn, the author of 「The Last Utopia-Human Rights in History, however, disagrees with such conventional understanding. What we call human rights today is a revolutionary, transnational concept created and advocated outside the national sovereignty. This is fundamentally different from, and irreconcilable with, the rights originating from the natural law ideas and the French Revolution which were closely bound up with the creation of the sovereign space. Moreover, the concept of human rights remained at the margin of the intellectual, political world after the end of the Second World War, and the mainstream of international law scholarship paid little attention to human rights for considerable period of time up to the late 1970s. What actually happened was a series of accidental events such as the adoption of the Helsinki accords, the activities of the dissidents from the Communist bloc, and particularly the success of Amnesty International and the inauguration of the Carter Administration in the United States in the late 1970s. These seemingly unrelated events resulted in the explosion of the modern human rights movement. This critical re-evaluation of human rights history helps us see the two different approaches to the concept of human rights. One is to understand human rights as the universal list of rights connected to the natural rights theory; the other is to understand human rights as the universal movement of revolutionary character undermining the concept of the sovereignty, based on the massive awakening that took place in the late 1970s. For the sake of convenience, one is labeled the "human rights as domestic rights", and the other "the human rights as transnational movement". These two categories of human rights concept are distinguished from each other in terms of: the space in which to exercise rights; the direction of rights; and the fundamental relationship to the concept of sovereignty. This distinction of human rights concept is useful in understanding specific contexts of the human rights language, which, in turn, would help understand and analyze the usage of human rights more objectively. In particular, one may find it necessary to apply this distinction to understand more thoroughly the human rights issues within the Korean legal discourse, including the North Korean human rights problems.

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