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서울대학교 아시아태평양법연구소(구 서울대학교 법학연구소)> Journal of Korean Law> The Retroactive Application of State Immunity Laws in the Ongoing Civil Dispute between the Victims of “Comfort Women” and Japan: Comments on Constitutional and International Legal Issues

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The Retroactive Application of State Immunity Laws in the Ongoing Civil Dispute between the Victims of “Comfort Women” and Japan: Comments on Constitutional and International Legal Issues

Seungho Lee
  • : 서울대학교 아시아태평양법연구소(구 서울대학교 법학연구소)
  • : Journal of Korean Law 19권2호
  • : 연속간행물
  • : 2020년 08월
  • : 263-311(49pages)

DOI


목차

Ⅰ. Introduction
Ⅱ. Overview of the Case
Ⅲ. The Problem of Retroactivity in the Present Case
Ⅳ. Domestic and International Legal Issues Concerning the Retroactivity of 97Da39216
Ⅴ. The Domestic Level of Analysis: The Principle of Protection of Reliance Under Korean Constitutional Law and its Application to the Present Case
Ⅵ. The International Level of Analysis: The Principle of Estoppel Under International Law and its Application to the Present Case
Ⅶ. Concluding Remarks

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UCI(KEPA)

간행물정보

  • : 사회과학분야  > 법학
  • : KCI등재
  • :
  • : 반년간
  • : 1598-1681
  • :
  • : 학술지
  • : 연속간행물
  • : 2001-2020
  • : 266


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As bearers of equal moral worth and universal human rights as recognized by international human rights law, and as non-demos in the state they reside in, non-citizens occupy a dual position in a particular society. They are ironically situated in modern democracy, being subject to domestic law of the state of residence, without holding political membership for participating in that law's making. With globalization and increasing transnational mobility, the democratic gap experienced by non-citizens is widening, and discriminatory treatments against them demand justification in light of both international and constitutional law. Contemporary international human rights law establishes a non-discrimination principle for non-citizens and rejects an application of the reciprocity rule. A case study of South Korea reveals that the practice of the Korean Constitutional Court and the dominant scholarly view in the country run counter to these norms, applying instead a unilaterally constructed standard of constitutional rights interpretation that unjustly denies non-citizens' internationally recognized human rights. Such practice also goes against the Korean Constitution's own cosmopolitan commitment embodied in Article 6, including the constitutional principle of respecting international law (paragraph 1) and a constitutional guarantee of non-citizens' rights and status according to international human rights norms (paragraph 2). By empowering disenfranchised individuals to participate in the norm-making process and thus reducing the democratic deficit created by nationality-based representative democracy, non-citizens' rights practices, enabled through the constitutional review system, can advance domestic democracy so that it attains a more inclusive and egalitarian nature. Non-citizens' rights claims facilitate normative interconnectedness and integrative operations between international and constitutional law, and democracy and human rights. The Constitutional Court of Korea needs to fully incorporate contemporary developments in international human rights law in its own constitutional rights interpretations. It should guarantee non-citizens' equal standing to bring constitutional claims for their internationally recognized human rights, and apply the same level of scrutiny against rights restrictions and discriminations as applied to citizens. Such constitutional internalization of non-citizens' equal human rights indeed lives up to the cosmopolitan orientation inherent in the Korean Constitution since its creation. It also enhances the global legitimacy of the state's democracy and its constitutional adjudication system.

2The Backward Reform of the Criminal Justice System in Korea

저자 : Sang Won Lee

발행기관 : 서울대학교 아시아태평양법연구소(구 서울대학교 법학연구소) 간행물 : Journal of Korean Law 19권 2호 발행 연도 : 2020 페이지 : pp. 119-147 (29 pages)

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Since the restoration of independence in 1945, Korea has witnessed enormous changes in many ways. The criminal justice system is one of them. Although there have been some fluctuations, the system has generally evolved from the crime control model to the due process model and from authoritarian policing to democratic policing. Recently, a new legislation has been enacted under the banner of prosecution reform. It was the current government who took the initiative of the legislation. The reform was made in the name of serving the people. The legislation went through formalities of statutory process. Seemingly it appears to be democratic. However, the reform constructed a criminal justice system that is possibly favorable to political power rather than ordinary people including political opponents. Contrary to what was alleged by the government, there is a high risk that the reform leads to a weird type of policing, socialistic stealth authoritarian policing.

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Like most other societies, Korean society has long viewed disability as a medical problem or a personal tragedy. People with disabilities were considered objects of medical treatment, charity, and social welfare. Society and its legal system thus treated people with disabilities in paternalistic ways rather than as rights bearers. However, some persons with disabilities and their supporters began to raise their voices to protest such mistreatment and discrimination. They claimed that people with disabilities should be regarded not as objects but as subjects or rights holders. The long process of struggling for equal treatment for persons with disabilities finally resulted in changes in government policies and legislation, including the enactment of the Disability Discrimination Act (DDA) in 2007. The DDA is not just a new law; it is a comprehensive law that represents a significant paradigm shift in disability rights and associated discourses. The new social and human rights models of disabilities have replaced the charity and medical models. The enactment of the Transportation Convenience Act in 2005 was also an essential step toward creating a more inclusive and integrated society. People with disabilities publicly asserted their right to mobility: They should not have to remain inside homes or institutions. Correspondingly, this article charts how waves of activism and legal reform in Korea transformed societal and governmental perceptions of disability to recognize and protect the rights of persons with disabilities increasingly. Intertwined struggles by disabilities groups, civic organizations, and lawyers raised the public awareness of disability rights. They pushed the National Assembly to enact or amend laws that significantly affected the lives of people with disabilities in South Korea.

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In 2015, the plenary session of the Korean Supreme Court confirmed previous case law with a small majority. According to it, the spouse who culpably lets his or her marriage fail may not judicially enforce the divorce against the other. This interpretation seems to restrict the statutory principle of no-fault divorce. How can this case law be justified? What are the considerations behind it? Are there social circumstances that perpetuate it? This article tries to explain these questions. Answering them will show an aspect of the social changes in South Korea, especially gender equality.

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Nigeria and Korea largely represent cargo and shipowners' interests, respectively. Hence, the regime of the arrest of a ship is germane in their respective maritime industries. Though both countries have not domesticated either of the ship arrest conventions, their existing admiralty or civil procedure laws and rules of court have always been triggered where matters require arresting vessels. This research comparatively analyses the arrest of ship procedures in Nigeria and Korea with a view to recommending measures to introduce effective and liberal arrest procedures in both countries. The paper argues that whereas Korea should include a bareboat charter in its arrest regime, Nigeria needs an efficient civil justice system to enhance its ship arrest framework. It is further suggested that both jurisdictions should consider introducing associated ship arrest, accept the Protection and Indemnity Club letter of undertaking as a guarantee for the release of the arrested ships, and introduce balanced wrongful arrest models in their jurisdictions. Consequently, this paper submits that though it is expedient for both countries to domesticate one of the ship arrest conventions, the focus should be on amending the local legislation and rules of court to introduce liberal arrest of ship procedures in both jurisdictions.

6Notable Supreme Court Cases: Administrative Law

저자 : Kae-young Choi

발행기관 : 서울대학교 아시아태평양법연구소(구 서울대학교 법학연구소) 간행물 : Journal of Korean Law 19권 2호 발행 연도 : 2020 페이지 : pp. 227-248 (22 pages)

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7Notable Supreme Court Cases: Civil Law

저자 : Dongjin Lee

발행기관 : 서울대학교 아시아태평양법연구소(구 서울대학교 법학연구소) 간행물 : Journal of Korean Law 19권 2호 발행 연도 : 2020 페이지 : pp. 249-262 (14 pages)

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