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건국대학교 법학연구소> 일감법학> 일본의 교육행정 처분기준에 관한 고찰

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일본의 교육행정 처분기준에 관한 고찰

A Study on the Standard for Educational Administrative Disposition of Japan

장교식 ( Kyo Sik Jang )
  • : 건국대학교 법학연구소
  • : 일감법학 12권0호
  • : 연속간행물
  • : 2007년 08월
  • : 175-207(33pages)

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Japan puts the duties of establishment and promulgation of the standard for administrative disposition on the Office of Administration to materialize the principle of transparency of administration. Thus, the standard for educational administrative disposition of Japan is also established by various legislation types. Looking into the standard for administrative disposition of Japan, this study considered the education-related clauses under the constitution of Japan and also reviewed the standard for administrative disposition appeared in individual enforcement decrees. The standards for administrative disposition of the revised Educational Basic Act and of the Enforcement Decree of the School Education Law especially were analyzed and at the same time, the precedents of the educational administrative dispositions were also reviewed to seek suggestions for Korea. The standard for administrative disposition in the field of the educational administration of Korea should also be rearranged on the dimension of securing the transparency and fairness of administration. In the educational administration, especially, the establishment of the standard for administrative disposition, regarding disfavored or important areas, is strongly demanded, Additionally, the importance of the local autonomy is high in the educational administration of Korea so that the educational system fitting the local situation and characteristics of the region should be established, and if necessary, a legislation should be made to support the system.

ECN


UCI

I410-ECN-0102-2012-360-003415356

간행물정보

  • : 사회과학분야  > 법학
  • : KCI 등재
  • : -
  • : 연3회
  • : 1975-9789
  • :
  • : 학술지
  • : 연속간행물
  • : 1996-2018
  • : 520


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발행기관 최신논문
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1판례의 형성과 구속력의 범위

저자 : 홍일표 ( Ihi Pyo Hong )

발행기관 : 건국대학교 법학연구소 간행물 : 일감법학 12권 0호 발행 연도 : 2007 페이지 : pp. 1-41 (41 pages)

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This paper explores the important role of judicial precedents in Korea whose body of laws is generally considered to be based on the European Continental Legal System under which court decisions are not regarded as a source of law. This paper first examines the binding force of judicial precedents in Anglo-American countries. It then explores how judicial precedents of the Korean Supreme Court came to have binding force. Momentum for such phenomenon was provided by Article 3 of the Small Claims Act, which was promulgated in 1973. Article 3 of the Small Claims Act provides that when a judgment of the appellate court contravenes judicial precedents of the Supreme Court, there exists a justifiable ground to make an appeal to the Supreme Court. Finally, this paper deals with ``ratio decidendi`` by introducing theories on the concept of it and then examining statements of law made in Korean Supreme Court decisions.

2성별전환의 법담론 비판

저자 : 한상희 ( Sang Hie Han )

발행기관 : 건국대학교 법학연구소 간행물 : 일감법학 12권 0호 발행 연도 : 2007 페이지 : pp. 43-75 (33 pages)

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A Transsexual is a marginal-``human`` standing across the boundary line that divides sexes: Male v. Female. Though he/she used to be labeled as a kind of violator of dominant norms, and be excluded from any meaningful relationships for making somewhat normal social life, such marginality may constitute meaningful tools with which we can disintegrate and reconstitute overall social system, Some attacks made to him/her can reveal a present situation how much human rights are guaranteed in this society. This paper deals with a Supreme Court`s decision which held some cases of transsexualism be protected by law and permitted, in that case, the transsexuals to change of sex in family register. But the requisites for such change are so much rigorous that most transsexuals can hardly make themselves legally authorised sexes in their family registers. The most severe one is that any applicant should take plastic operation of genital organ, and he/she should have same appearance of genitals of the opposite sex he/she wants to be. It is well known that such requisite is too severe, expensive and painful for any applicant, esp. F-M transsexual to satisfy. The other one is that of admission of the society that he/she belongs. The Supreme Court requires that transsexuals shall be recognized as the opposite sex that he/she wants to be in order to be registers as that sex. Such a decision shows negative attitude of the Supreme Court against transsexualism. The Supreme Court had less understanding on desires of the transsexuals than the needs of social order, which means the Court may regard transsexualism as a kind of socially deviant behavior rather than one of human rights. The Court did not emphasize the right to decide one`s own sexual life. It only stressed importance of ``Rechtssicherheit``. This paper criticise that decision which was derived from some prejudice against transsexualism. From that decision, one of the most prevailing bio-pouvior, in M. Foucault`s meaning, can be found out. A kind of bio-politique is operating not only in that legal struggle for transsexualism. It expands its battle line against all person in our society, It tries to force tacitly all of us to take social norms which has been imposed by the dominating powers, from which even one`s body can not be free. It declares that no one and no body be free from bio-pouvior. After all, most transsexuals` desires and human rights are lost in the transsexualism of the Supreme Court.

3현행 형법의 집행유예제도에 대한 해석론

저자 : 이승호 ( Seung Ho Lee )

발행기관 : 건국대학교 법학연구소 간행물 : 일감법학 12권 0호 발행 연도 : 2007 페이지 : pp. 77-102 (26 pages)

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A suspended sentence with probation has been used as the important method of punishment in South Korea since the latter part of twentieth century. We also prospect that its role will be increasingly enlarged in criminal justice as the principal status of penal mechanism shifts from imprisonment to the treatment in community. So we need to make our system of probation more efficient and more flexible so that it plays an adequate role in the stage of penal enforcement. As a preliminary study, this paper concentrates on the interpretation of the current statues of a suspended sentence with probation, which are constituted by five provisions of Criminal Law. The first task to be done in this paper is to explain the essential condition of a suspended sentence with probation. In addition, the causes of invalidation and cancellation are also summarized with the supportive and critic opinions of current provisions. Though this paper is mainly interested in the interpretation of current statutes, some legislative alternatives are also introduced in footnotes.

4민주화 이후 형사법의 동향과 과제

저자 : 김영철 ( Young Cheol Kim )

발행기관 : 건국대학교 법학연구소 간행물 : 일감법학 12권 0호 발행 연도 : 2007 페이지 : pp. 103-125 (23 pages)

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Looking back at the criminal law of Korea, from the kingdom of ancient Joseon to the Chosun Dynasty, we find that criminal laws were operated with Oriental system, affected by neighboring country, China. Western modern criminal laws were first introduced to Korea in 1911 after the Japanese annexation of Korea by operating Chosun Criminal Order, applying Japan Criminal Act. It was not until 1945, liberation from Japanese occupation, that we Korea had our own criminal laws. The National Assembly enacted Criminal Act by Act No. 239 Sep. 18, 1953, and Criminal Procedure Act by Act No. 341 Sep. 24, 1954. Criminal Administration Act was enacted in 1950, too. As an independent nation, Criminal Act, with reference to Criminal Code and Criminal Act Draft all over the world, was enacted to follow the global current which was to protect the national human rights and to entirely realize freedom and peace. However, until the political democratization of 1987 after liberation from Japanese occupation of 1945, dictators ran laws and decrees arbitrarily, so there were a lot of cases of losing legal force of laws and decrees and it seemed that laws and decrees were decorative. People who were eager for democratization resisted the military dictatorship and finally attained their goals with the pro-democracy movement of 1987. Reflecting their claims, the National Assembly revised several articles, criticized as the poisonous articles, of criminal law in accordance with international human rights standards. Today, owing to endeavoring to operate laws and decrees democratically, we have better the positive law system and ideal law operating system than any other country. Korea has absorbed and adapted fast as much law system and operating system of the rule of law for about 60 years as the west has achieved for about 200 years. The jury system which people take part in will be introduced on Jan. 1, 2008. In the field of criminal laws, such as Criminal Act, Criminal Procedure Act, Criminal Administration Act and so forth, it`s hard to have roots completely in short Period, however modernized foreign system we introduce. Because criminal laws are the mirror of the time and the culture of the society or the country, it`s impossible for criminal law to surpass the level of people or law operators of the time, To advance and establish firmly these law systems, we have to overcome a lot of trial and error and outdated practices, and to enhance the level of acceptance by locals.

5종합부동산세법의 위헌 논의점

저자 : 김영우 ( Young Woo Kim )

발행기관 : 건국대학교 법학연구소 간행물 : 일감법학 12권 0호 발행 연도 : 2007 페이지 : pp. 127-173 (47 pages)

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The Comprehensive Real Estate Tax Law was legislated for the purpose of contribution to balanced development of local finance and healthy development of national economy to improving equality tax burden and striving for value stability of real property by imposing the Comprehensive Real Estate Tax (CRET) to large real property holder. But a rapid price raising of real property on housing price in some area due to substantially minus interest rate, rebounding expectation of real property after declining in IMF crisis, increasing market currency on payment surplus in international trade, increasing floating money from declining investing mind in private enterprise, government failure from hoping to increase economic growth shortly through the economy revitalizing of stimulating real property. So, it is nonsence to quit the speculation in real estate by imposing the CRET. Futher more there is possibility to against the constitution due to rapid increasing tax burden, imposing without exception to one house holder through the family, adding up taxation through the family. Tax resistance to the CRET is also very high. There is no taxation system like the CRET through the main country in the world. There is no essentially necessity to legislate the CRET. So, It`s apposite to repeal the CRET. It`s the second best to repeal the adding up taxation through the family that is clearly unconstitutional legislation, to improve taking preferential treatment like exemption or reduce tax on one house holder through the family. This thesis compose glancing and evaluating the outline of the CRET, the tax policy that operated on the speculation of real estate in Korea, taxation system to the real estate holder in main country, suggesting improvement of the CRET, conclusion through comparing with foreign tax law and similar case on the point at issues on the general legislative problem and possibility to against to constitution.

6일본의 교육행정 처분기준에 관한 고찰

저자 : 장교식 ( Kyo Sik Jang )

발행기관 : 건국대학교 법학연구소 간행물 : 일감법학 12권 0호 발행 연도 : 2007 페이지 : pp. 175-207 (33 pages)

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Japan puts the duties of establishment and promulgation of the standard for administrative disposition on the Office of Administration to materialize the principle of transparency of administration. Thus, the standard for educational administrative disposition of Japan is also established by various legislation types. Looking into the standard for administrative disposition of Japan, this study considered the education-related clauses under the constitution of Japan and also reviewed the standard for administrative disposition appeared in individual enforcement decrees. The standards for administrative disposition of the revised Educational Basic Act and of the Enforcement Decree of the School Education Law especially were analyzed and at the same time, the precedents of the educational administrative dispositions were also reviewed to seek suggestions for Korea. The standard for administrative disposition in the field of the educational administration of Korea should also be rearranged on the dimension of securing the transparency and fairness of administration. In the educational administration, especially, the establishment of the standard for administrative disposition, regarding disfavored or important areas, is strongly demanded, Additionally, the importance of the local autonomy is high in the educational administration of Korea so that the educational system fitting the local situation and characteristics of the region should be established, and if necessary, a legislation should be made to support the system.

7검사작성 피의자 신문조서의 증거능력

저자 : 이광수 ( Kwang Soo Lee )

발행기관 : 건국대학교 법학연구소 간행물 : 일감법학 12권 0호 발행 연도 : 2007 페이지 : pp. 209-238 (30 pages)

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The interrogatory of a suspect written by the prosecutor is treated differently with that of the accused in the judge`s face by appending some conditions in admissibility of evidence, who was the same suspect. There are several opinions about the reason. Even someone insists that the interrogatory of a suspect written by the prosecutor is behind that of the accused in the judge`s face. But I can`t agree it because the prosecutor is not only a litigant party but also is in a public position proportionate to the judge in our criminal procedure system. In my esteem, it is due to the point that our trial system is the system lead by the judge, not by the prosecutor. It means that the doctrine of the focusing on the trial is one of the principles of criminal procedure code. But the doctrine of the focusing on the trial is not the final aim in the criminal procedure. It is what the truth is, our final aim in the criminal procedure. So the interrogatory of a suspect written by the prosecutor must be treated preferentially than the interrogatories of the suspect written by any other criminal investigators.

8일본 검찰의 쇼와전공 사건 수사에 관한 소고

저자 : 김원치 ( Won Chi Kim )

발행기관 : 건국대학교 법학연구소 간행물 : 일감법학 12권 0호 발행 연도 : 2007 페이지 : pp. 239-263 (25 pages)

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Showa Denko Case is the incident where a Japanese chemical fertilizer company, Showa Denko, offered enormous bribe to the political circles to have the loan of money from Local Government Capital Development Grant which was established after the end of a war. During the investigation of this incident, the incumbent Prime Minister, Ashida Hitoshi, was placed under arrest and the Cabinet collapsed, and it became the 3rd case among 5 cases where the Cabinet collapsed through investigation and prosecution after the investigation and prosecution system was introduced to Japan. It is officially known that the investigation started on this incident from the exposure of a member of the Diet however the received opinion is that it was rather led by political conspiracy based on the secret feud for power within GHQ which ruled Japan at the time. In other words, Ashida Administration at the time was the coalition cabinet of three parties including Democratic Party, Socialist Party, and National Cooperation Party which claimed to stand for centrism and it was being upheld by GS (Government Section) within GHQ, and the G2 (General Staff Section 2) within GS caused this incident by apprehending the close relationship between the deputy director of GS, Colonel Charles L. Kades and the president of Showa Denko, Hinohara. In this incident, 43 out of 60 people who were subjected to investigation were prosecuted, it took 14 years and 6 months until the trial at the Supreme Court, and most defendants including Prime Minister Ashida were given a verdict of "not guilty" and the reason was that it was not the matter of admitting the truth but that it was not relevant to their duties. This has great meaning in terms of the history of prosecution and investigation. Concerning Prime Minister Ashida was found innocent for his act of accepting the money for connecting the supplier to the minister in charge of the related business was not related with the Prime Minister`s duty, and the Influence Peddling Act was newly established in order to correct such irrationality. Also, the prosecution which was deprived of the primary investigative right to the police after the war found an opportunity for independent investigation and established the Special Investigation Division under Tokyo District Public Prosecutor`s Office. In other words, the police began the investigation of this incident however the subject of suspicion, Kades of GS distrusted police investigation and ordered the prosecution to investigate in order to prove his innocence, and the reason the Special Investigation Division was established only in 5 months after the investigation for this case closed is that GHQ rated the investigative capacity of the prosecution high. However, some criticized that the prosecution could not thoroughly investigate the corruption of the conservative politicians who ruled the political circles of Japan afterwards due to the inherent limit of the Special Investigation Division of the prosecution which contributed to the birth of the conservative government.

9법조인 양성을 위한 임상법학교육 ―일본과 중국을 중심으로―

저자 : 박광동 ( Kwang Dong Park )

발행기관 : 건국대학교 법학연구소 간행물 : 일감법학 12권 0호 발행 연도 : 2007 페이지 : pp. 265-280 (16 pages)

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As the ``Bill of Act on Establishment and Operation of Law School`` had been passed through the main conference of the National Assembly on July 3, 2007. It is prepared with the foundation to open the first law school in Korea on March 2009, Major terms of the Act allows the general university with 4-year curriculum (including graduate school) to establish the law school with 3-year master`s curriculum of specialized graduate school on March 2009. And every university that establishes the law school shall abrogate the existing college (department) of law, It requires to mandatorily reflect the grade point average (GPA) and ``Legal Education Eligibility Test (LEET),`` an eligibility test for the law school, into the entrance examination and necessarily include the foreign language ability as the entrance information. With introduction of the law school, there will be a lot of changes on the existing pattern of law education in the future. Specifically, legal practice oriented law education pattern such as clinical law education, simulation and the like will be activated. Especially, the clinical law education out of them seems to be such a education pattern to be newly tried in Korea upon introduction of the law school. This clinical law education has been being excised for the law schools mainly in the western countries and also executed in Japan and China. This paper had looked into the pattern of the clinical law education to train the judicial officials in Japan and China. In conclusion, for the purpose of successful education pattern like that, it is necessary for supporting a diverse range of related systems and substantial contents of education.

10사업자의 소비자분쟁 해결 활성화 방안에 관한 연구

저자 : 김동균 ( Dong Kyun Kim )

발행기관 : 건국대학교 법학연구소 간행물 : 일감법학 12권 0호 발행 연도 : 2007 페이지 : pp. 281-314 (34 pages)

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There occurs the paradigm shifts from consumer protection to the consumer sovereignty and the whole text of The Consumer Protection Act has been revised to The Consumer Law which are now in action from March 28, 2007, But as we study the regulations in the commercial transaction dispute, there are found details in regulations on behalf of groups of consumer but less details on the groups of corporations, except the preventative duties of the groups of corporations in regulations. And also there are no valid regulations for business judicial orders against consumers` unfair claims of withdrawal such as those in The Consumer Protection Law in e-Commercial Transaction. The purpose of our research is as follows: first we review the resolution methods of consumer transaction disputes in the United States, Germany and Japan. Second, we compare ADR (alternative dispute resolution) and JDR (judicial dispute resolution) for the resolution in the commercial transaction disputes. Third, we suggest the needs to establish the professional and fair groups for commercial transaction disputes such as trade associations` mediation centers, BBB (Better Business Bureau) in the United States and the chamber of commerce and industry in Germany. The results are as follows: i) the establishment and enforcement of the consumer association in The Federation of Korean Industries, ii) the establishment and enforcement of trade associations (economic organizations)`s resolution groups for commercial disputes, iii) promotion of the organic functions of OCAP (The Organization of Consumer Affairs Professionals in Business, iv) Regional CCI`s involvements in managing consumer disputes. Among the above results, we need the effective method of promoting the organic functions of OCAP in considering that our domestic consumers has the negative opinions against the some big corporations and has different suggestions for business group`s commercial transaction dispute. We suggest the revision of the 29th or the 31st in The Consumer Law in order to mediate. Our suggestions need to be more researched and enforced, then make effects on business groups`` own regulation for occurring no consumers`` claims and provide shortcuts to establish the commercial morals based on mutual trust between consumers and business. However, the alternative policy suggestion will be provided with more research on the institutional problems in The Consumer Law found in our study.

1
주제별 간행물
간행물명 수록권호

연세법학
30권 0호 ~ 31권 0호

최신판례분석
67권 5호 ~ 67권 5호

KCI등재

법조
67권 5호 ~ 67권 5호

KCI등재

법학논총
35권 3호 ~ 35권 3호

KCI등재

법학연구
71권 0호 ~ 71권 0호

KCI등재

법학논집
23권 1호 ~ 23권 1호

KCI등재

법과 사회
32권 0호 ~ 32권 0호

KCI등재

법과 사회
31권 0호 ~ 31권 0호

KCI등재

법과 사회
29권 0호 ~ 29권 0호

KCI등재

환경법연구
27권 4호 ~ 27권 4호

KCI등재

환경법연구
27권 4호 ~ 27권 4호

연세 공공거버넌스와 법
9권 2호 ~ 9권 2호

KCI등재

법과 정책연구
6권 2호 ~ 7권 1호

KCI등재

법과 정책연구
5권 1호 ~ 6권 1호

KCI등재

법학연구
28권 3호 ~ 28권 3호

KCI등재

상사법연구
25권 4호 ~ 25권 4호

KCI등재

상사법연구
25권 3호 ~ 25권 3호

KCI등재

서울대학교 법학
59권 3호 ~ 59권 3호

KCI등재

법과 정책연구
4권 1호 ~ 4권 2호

KCI등재

법과 정책연구
18권 3호 ~ 18권 3호
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