간행물

Journal of Korean Law update

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수록정보
수록범위 : 1권1호(2001)~20권2호(2021) |수록논문 수 : 285
Journal of Korean Law
20권2호(2021년 08월) 수록논문
최근 권호 논문
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KCI등재

1Just Reparations for Korean “Comfort Women”: A Transitional Justice and International Law Perspective

저자 : Esther Song

발행기관 : 서울대학교 아시아태평양법연구소 간행물 : Journal of Korean Law 20권 2호 발행 연도 : 2021 페이지 : pp. 373-412 (40 pages)

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On December 28 2015, South Korean and Japanese foreign ministers abruptly reached an agreement (hereinafter “the 2015 Agreement”) to settle the Korean “comfort women” issue. This agreement evoked strong opposition among the victims and civic groups due to the lack of participation by the victims in reaching it; consequently the agreement appeared to result in unjust reparations for these victims. In addition, two conflicting judgments were reached in the South Korean court in relation to compensating Korean “comfort women” in 2021; namely, (i) the judgment on January 8 2021 and (ii) the judgment on April 21 2021. In terms of the former, the Seoul Central District Court ruled on January 8 2021, that the victims' right to claim reparations for damages against the Japanese government was not included within the scope of application of the 2015 Agreement. On the contrary, in its April 21 2021 ruling, the Seoul Central District Court dismissed the lawsuit on the ground of state immunity filed by other victims of Japanese military sexual slavery against the Japanese government. Besides, the court ruled that an “alternative remedy” was provided by the 2015 Agreement. This raises the question of if the 2015 Agreement provided adequate just reparations to be considered an “alternative remedy” for the victims. This article argues that the reparations the Japanese government provided to Korean “comfort women” cannot be regarded as just since it does not met the international standards of just reparations, especially from the perspective of transitional justice and international law. For this purpose, Section 2 discusses the background of the so-called “comfort women” and confirms the legal responsibility of the Japanese government. Section 3 explores the international standards on providing a remedy and reparations for victims of violations of international human rights law and international humanitarian law. Then, it outlines what just reparation should be from the perspective of transitional justice. Section 4 examines whether the reparations the Japanese government offered these women, including those set out in the 2015 Agreement, constitute just reparations for the victims. Section 5 discusses the relationship between justice and politics in reparations for these victims and finds that justice in reparations for these women was determined by political considerations between the two countries. The implementation of the 2015 Agreement shows how difficult it is to achieve reconciliation between these two countries without just reparations.

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2The Effects of Trial Procedure Factors and Deliberation Factors on Shadow Jurors' Perceptions about the Fairness of Jury Trials in Korea

저자 : Jisuk Woo , June Woong Rhee , Jae-hyup Lee

발행기관 : 서울대학교 아시아태평양법연구소 간행물 : Journal of Korean Law 20권 2호 발행 연도 : 2021 페이지 : pp. 413-428 (16 pages)

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Using survey data collected from 295 shadow jury participants in 20 jury trial cases between January and June of 2012 in South Korea, we examined whether various factors in the court proceedings and deliberations affected the shadow jurors' perception of trial fairness and their evaluation of the jury trials in general. We found that the shadow jurors' perceptions about the fairness of the trial were accounted for by their perceptions of how well the judges managed the trials and of how helpful the judges were in assisting the deliberation process. The shadow jurors did not think the trial was less fair because they perceived the case to be complex. Nor did they think the trial was fairer because the prosecutor made a good case against the defendant or because the defense counsel made a good defense.
On the other hand, the shadow jurors' support of the jury system in general was influenced by very different explanatory variables. The jurors' personal characteristics, such as their degree of cognitive wants, influenced how desirable they thought the jury system is for the fairness of the trial. The shadow jurors who enjoyed debates and were willing to solve difficult problems and to learn new things were more likely to appreciate the jury trial as an institution to advance fairness in criminal justice. Also, the more the shadow jurors thought that they actively participated in the discussion process, the more desirable they considered to the jury system to be in advancing fairness. In conclusion, the shadow jurors' attitudes toward the desirability of the jury trial most depends on the assessment of their own cognitive abilities and wants and their willingness to actively participate in the discussion.

KCI등재

3Public Health and Constitutional Rights During the COVID-19 Pandemic

저자 : Sang-hyeon Jeon

발행기관 : 서울대학교 아시아태평양법연구소 간행물 : Journal of Korean Law 20권 2호 발행 연도 : 2021 페이지 : pp. 429-463 (35 pages)

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Measures to control and prevent the spread of infectious diseases, including the prohibition of mass gathering, closure of facilities, compulsory medical examinations, hospitalization or quarantine, and disclosure of personal information, substantially restrict individual freedom and rights. In the area of public health policy, which requires expertise, it is inevitable that authority be delegated to administrative agencies to some extent. However, final decisions on public health policy should be made by the people in accordance with democratic procedures. The ordinary standard of judicial review should be applied to public health law, even in times of crisis, such as a pandemic. Relaxing these standards may lead to reduced protections for constitutional rights. During a pandemic of an infectious disease, it is necessary to revisit social rights and the state's duty to protect constitutional rights. Heightened standards for scrutinizing judicial review are needed, especially related to the right to health and the state's duty to protect public health.

KCI등재

4The Countervailing Power Defense for Cartels Under the Monopoly Regulation and Fair Trade Act

저자 : Yong Lim

발행기관 : 서울대학교 아시아태평양법연구소 간행물 : Journal of Korean Law 20권 2호 발행 연도 : 2021 페이지 : pp. 465-496 (32 pages)

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Despite being often raised by respondents being investigated by competition authorities, the countervailing power defense for collusive behavior under the Monopoly Regulation & Fair Trade Act has received relatively little attention so far. Two strands of thought continue to this day, one being that such collusion would increase market concentration by introducing newly minted market power into the market by virtue of the cartel. Another stand of thought is that all or part of the benefits garnered through the countervailing power created by the cartel will be passed on to consumers, thereby increasing their welfare. A closer look at the theory shows that indeed as the market moves from a monopoly to a bilateral monopoly (where the input seller and buyer are a monopoly and monopsony, respectively), consumers may be better off than before as output increases to more optimal levels. There are, however, important caveats to this observation, as various factors may weaken or even reverse the welfare gains mentioned above. Examples include a breakdown in negotiations between the monopolist and monopsonist, and an increase in market power or collusion on the part of the cartelists in the downstream market or other markets where they are present. Indeed, the theory of the second best teaches us that the welfare effects of both inserting and removing the countervailing cartel will be indeterminate, making it difficult for authorities to properly judge the legality of such cartels. Some have argued that a countervailing power defense should be allowed, albeit restrictively and only under certain conditions such as the lack of market power in the downstream market. However, the likelihood of high administrative costs, and concerns of underdeterrence gives one pause in allowing such a defense even in its restricted form from a policy perspective. In any event, even if one were to allow for such a defense, the cartelist(s) should have the burden of proof of showing that their behavior had actually increased consumer welfare. Proving such, however, will likely be a daunting task.

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5Liability of Directors in Leveraged Buyout: Hi-Mart Case―Supreme Court Decision 2016Do10654 (Oct. 15, 2020)

저자 : Ok-rial Song

발행기관 : 서울대학교 아시아태평양법연구소 간행물 : Journal of Korean Law 20권 2호 발행 연도 : 2021 페이지 : pp. 497-518 (22 pages)

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7Analyzing and Evaluating the 2020 General Amendments to the Korean Digital Signature Act

저자 : Jaeso Ahn

발행기관 : 서울대학교 아시아태평양법연구소 간행물 : Journal of Korean Law 20권 2호 발행 연도 : 2021 페이지 : pp. 577-614 (38 pages)

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The purpose of this paper is to present the requirements that the Korean Digital Signature Act (hereinafter “Digital Signature Act”) must fulfill and to verify the legitimacy of the 2020 General Amendment to the Digital Signature Act. With the enforcement of the amended Digital Signature Act on December 10, 2020, the “certified digital signature system” was abolished. Consequently, various digital signatures are now recognized as equally effective without the need for national authorization, and different certificates that verify the effectiveness of digital signatures are currently competing in the market. However, domestic research regarding the status quo is limited.
Digital signatures guarantee safety and convenience of electronic documents by confirming the identity of the parties and effectiveness of an electronic contract. In modern society, where digital signatures are widely used to help building a trust system, changes in related laws are bound to have a major impact on the overall economy. Therefore, it is necessary to trace why the general amendment of the Digital Signature Act in 2020 was necessary and to evaluate whether the amended law is sufficiently suitable for creating a desirable digital environment. For an adequate evaluation of both the old and amended laws and to provide appropriate recommendations, this research was organized in the following order.
First, by clarifying the significance of digital signatures and by analyzing the documents on “Reasons for Revisions” of the Korean Digital Signature Act and the Digital Signature Model Act of the United Nations Commission on International Trade Law (UNICITRAL), this research derived four criteria for evaluating the appropriateness of the Digital Signature Act: stability and reliability of electronic documents; contribution to the expansion of use of electronic documents; contribution to informatization; and contribution to the improvement of public convenience. Then, based on these four criteria, this research argued why it was necessary to generally amend the old Digital Signature Act (hereinafter “the old law”). The state-led certified digital signature system guaranteed a stable legal environment for electronic contracts in the short term; however, in the process, there has been an increase in risk and inconvenience caused to users and the potential development of various authentication technologies has been hampered.
Finally, this research summarizes the main contents of the amended Digital Signature Act (hereinafter “the amended law”) and evaluates it based on the abovementioned four criteria. Consequently, the research reveals that the amended law positively contributes to informatization and increases public convenience by promoting a desirable competition among certificate operators. However, for the newly implemented “Recognition System for Compliance with Operating Standards” to be effective, the distribution of responsibility among related government departments must be fair and clearer than what the amended law and practice currently provides.

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