간행물

Journal of Korean Law update

  • : 서울대학교 아시아태평양법연구소(구 서울대학교 법학연구소)
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수록정보
수록범위 : 1권1호(2001)~18권2호(2019) |수록논문 수 : 253
Journal of Korean Law
18권2호(2019년 06월) 수록논문
최근 권호 논문
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The sixth Corporate Restructuring Promotion Act (CRPA) was re-enacted as a temporary law effective for five years on October 16, 2018. As an out-of-court debt restructuring scheme, CRPA procedure is governed by the principle of majority or super-majority, not unanimity. Thus, under the CRPA, the claims of the dissenting creditors are subject to a restructuring plan when the council of financial creditors adopts one. Dissenting financial creditors who do not wish to be bound by the resolution can demand that their claims should be purchased. If they do not exercise this right of appraisal, they must follow the restructuring plan, according to which they may be forced to extend additional financing to the distressed company.
Out-of-court restructuring schemes are still important because they can contribute to the early and preventive corporate restructuring. Furthermore, most distressed companies prefer out-of-court proceeding to a formal insolvency procedure supervised by the courts, because it can have a relatively minimal impact on the credit rating and trading reputation of the distressed company. CRPA procedure can also hinder the opportunistic behavior of creditors, which is the main problem of the workout procedure governed by the unanimity principle. The social harmfulness of the CRPA has not yet been proved. The CRPA increases the restructuring options from which the distressed companies can choose.
Therefore the CRPA should be maintained and made as a permanent law instead of being abolished, and some amendments do need to be added. To strengthen the fairness of the procedure and the private autonomy of creditors, a process of confirming restructuring plans governed by the courts should be introduced, and any additional financing should be left to the voluntary wills of the creditors. Finally, to promote new financing in the CRPA procedure, the protection of additional voluntary financiers should be reinforced.

KCI등재

2Judging Capacity in Korean Private Law

저자 : Hyoung Seok Kim

발행기관 : 서울대학교 아시아태평양법연구소(구 서울대학교 법학연구소) 간행물 : Journal of Korean Law 18권 2호 발행 연도 : 2019 페이지 : pp. 325-333 (9 pages)

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Most jurisdictions of the civilian tradition assume that a person needs to have a certain degree of mental capacity to take part in legal transactions. The Korean Civil Code also presupposes the capacity to form an intent as a prerequisite of any valid juridical act, although its definition is not expressly given. Doctrine and case law try to understand the concept from a cognitive perspective, concentrating their efforts on scrutinizing the cognitive capabilities of the concerned person. The author disagrees with this approach, whose definition is too vague to handle in practice and has a danger of discrimination. It is instead submitted that volitional elements must be integrated into the concept of capacity. According to this test, the capacity is to be denied only when cognitive disturbances interfere with forming an intent to such a degree that it is impossible to speak of a self-determination. This conclusion is justified by the principle of private autonomy and some convincing examples.

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The Korean Supreme Court issued an en banc decision (“the Decision at Issue”) on the liability of a Japanese company for forcing the plaintiff into labor during World War II and a majority opinion affirmed the liability of the Japanese company. The main issue of the Decision at Issue was whether the Agreement on the Settlement of Problems concerning Property and Claims and on Economic Co-operation between Japan and ROK (“the Claims Agreement”) addressed the right to damages for mental harm caused by forced labor.
This article analyzes the Decision at Issue from the perspective of international customary rules. Article 31 and 32 of the Vienna Convention on the Law of Treaties (“the Vienna Convention”) which stipulated rules concerning interpretation of treaties, have been considered to reflect international customary rules. As the Vienna Convention provided, a treaty should be interpreted in accordance with the ordinary meaning of the terms of the treaty in the light of its purpose and in their context together with subsequent practices. The Claims Agreement was for solving civil matter of property and obligation between the two countries rather than for addressing the matter arising from wrongdoing during Japanese colonial occupation. This succinctly explains why terms like “reparation” or “wrongdoing during the Japanese rule” are absent from the Claims Agreement unlike other treaties between Japan and other injured nations that were provided reparations. The Claims Agreement provided that the problems concerning the “claims” are settled completely. However, the Claims Agreement did not define “claim”. Claim can be construed as “diplomatic protection” based on the context, inferred by para. 2(h) of the Agreed Minutes, and subsequent practices on the side of Japan. The scope of the Claims Agreement, which was signed when Japan denied the illegality of its colonial rule over Korea, is inherently limited.
This article also offers a rebuttal to the argument that the Claims Agreement is a lump sum agreement. In addition, this article submits the notion that Eight Items did not cover the plaintiffs' rights on the grounds of provisions of the National Service Draft Ordinance and negotiation process for concluding the Claims Agreement. In sum, the legal logic of the Decision at Issue can be said to be acceptable and founded upon firm argumentation.
The Decision at Issue has significant implications: constitutional value can play a pivotal role in interpretation of treaties and the interpretation of treaties should be made in deference to the fundamental ideology of protection of human rights.

KCI등재

4Fair Government at Home and Abroad: Improving Korea's Foreign Bribery Prevention Act

저자 : Kwon-yong Jin

발행기관 : 서울대학교 아시아태평양법연구소(구 서울대학교 법학연구소) 간행물 : Journal of Korean Law 18권 2호 발행 연도 : 2019 페이지 : pp. 365-412 (48 pages)

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The globalization of business transactions in recent years has drawn greater attention to the problem of foreign bribery. Like domestic bribery, bribery of foreign public officials can lead to a number of adverse consequences, including loss of economic efficiency and government revenue, diminished public trust, and a culture of corruption. To prevent such adverse consequences, anti-foreign bribery statutes, such as the United States' Foreign Corrupt Practices Act, the Organisation for Economic Co-operation and Development's Anti-Bribery Convention, and Korea's Foreign Bribery Prevention Act, are crucial in ensuring the fair and impartial exercise of government functions around the world.
This Article thus examines Korea's legal regime against outbound foreign bribery, the Foreign Bribery Prevention Act (FBPA). In particular, this Article notes three major areas of concern in the FBPA. First, the definition of a “foreign public official” is too vague and unpredictable, particularly where state-owned enterprises are concerned. Second, a statutory defect in the FBPA means that foreign bribery involving a third-party beneficiary is technically not prohibited by the FBPA. Third, the authorized punishment under the FBPA can be insufficient. In order to improve the effectiveness of the FBPA, this Article proposes a set of legislative solutions, including utilizing state control and preferential treatment as a proxy for the exercise of a public function, expanding the scope of the anti-bribery provision to cover bribery with a third-party beneficiary, and authorizing debarment for FBPA violators.

KCI등재

5Notable Cases on Criminal Law

저자 : Jinyoung Hong

발행기관 : 서울대학교 아시아태평양법연구소(구 서울대학교 법학연구소) 간행물 : Journal of Korean Law 18권 2호 발행 연도 : 2019 페이지 : pp. 413-431 (19 pages)

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1연안해역에서 석유오염물질의 세균학적 분해에 관한 연구

(2006)홍길동 외 1명심리학41회 피인용

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2미국의 비트코인 규제

(2006)홍길동심리학41회 피인용

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가장 많이 참고한 논문

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가장 많이 참고한 논문

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2미국의 비트코인 규제

(2006)홍길동41회 피인용

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해당 간행물 관심 구독기관

한국외국어대학교 서울대학교 University of British Columbia(CANADA) Australian National University Leiden University
 22
 4
 3
 2
 1
  • 1 한국외국어대학교 (22건)
  • 2 서울대학교 (4건)
  • 3 University of British Columbia(CANADA) (3건)
  • 4 Australian National University (2건)
  • 5 Leiden University (1건)
  • 6 고려대학교 (1건)
  • 7 Univ.Columbia (1건)
  • 8 제주대학교 (1건)
  • 9 금융감독원 (1건)
  • 10 동국대학교 (1건)

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