Korean Legislation Research Articles

U.S. Antidiscrimination Law in Healthcare & Algorithmic Bias : Its Lessons for South Korean Legislation

U.S. Antidiscrimination Law in Healthcare & Algorithmic Bias : Its Lessons for South Korean Legislation

Ministry of Justice of the Republic of Korea: History and Modernity

The article is devoted to the Ministry of Justice of the Republic of Korea (hereinafter RoK, Republic). The authors examine the history of the creation in the Korean government of the department responsible for the implementation of laws, law enforcement personnel, and judicial processes. The Ministry of Justice functioned until the Japanese occupation in 1910. The new history of the Ministry began after the liberation of Korea. In 1948, the Korean Constitution came into force. Currently, the system of executive authorities of the Republic is determined by the Law on the Organization of Public Administration. In accordance with this law, the Ministry of Justice is an independent structure. The Presidential Decree on the Ministry of Justice and its subsidiaries regulates the structure and competence of the department. Certain powers of the Ministry of Justice are regulated by the laws on the prosecutor’s office, on probation, on immigration, on lawyers, on notaries, on civil servants and other regulations. A wide range of issues fall within the scope of the Ministry. The Ministry of Justice is responsible for the execution of laws, the prosecutor’s office, migration, correctional institutions, prosecutorial and legal personnel, legal assistance in civil and criminal cases. The article analyzes in details the provisions of Korean legislation on the structure and competence of the Ministry of Justice. The authors examine closely the status of Ministry employees and holding them accountable. Contemporary issues related to the activities of the Ministry of Justice are revealed. The role of the Ministry of Justice in the supervision of the prosecutor’s office, the legal profession, correctional institutions and probation is highlighted. The powers of the Ministry of Justice in the field of execution of punishment, rehabilitation of off enders and immigration are analyzed. The authors show how the Ministry is involved in international cooperation. Particular attention is paid to the importance of the Ministry of Defense in the process of improving Korean legislation.

일제강점기 조선광업령으로부터 살펴본 광업법의 흐름과 시사점

Various movements for carbon neutrality and eco-friendliness are proceeding globally grounded on the conversion of energy; however, resources like oil still occupy an important position. In this situation, legislation is an important issue in the preparation of the basic system to manage and cope with it properly. Korean legislation has been significantly influenced by the law in the Japanese colonial era. Japanese colonial rule was based on the legislation to exploit labor and material from colonial Joseon in many ways then. This is our painful and unforgettable history.
 For this reason or such, there are quite a lot of similar parts between Korea and Japan in terms of the administrative system and the legal system. Therefore, based on the historical review of the legislation, it is necessary to attempt to consider and contemplate historical and legal implications related to the Mining Law. It was such a painful history, but we should not keep living in it. Therefore, it is needed for us to select the items that can be referred to now and think about the issues from various perspectives for mutual survival.
 In conclusion, from realistic perspectives, it is necessary to examine and discuss it constantly to make new mineral resources efficient within the conditions related to resources changing globally and utilize Korean resources more usefully.

화폐와 저작권

The main purpose of this paper is to examine currency and copyright, which have recently become hot topics in our society.
 The currency issued by the Bank of Korea is legal tender and serves as a means of payment and is also subject to monetary policy. Types of currency include bank notes, coins, and commemorative coins.
 In Chapter 2, the author looked at whether currency is a work in terms copyright, a work of applied art, small coin theory, and a public work through examples and interpretation of German legislation and Korean legislation. Personally, I think that currency sufficiently satisfies the requirements for establishing a copyrighted work. In addition, currency has a strong characteristic as a work of applied art, and in the case of coins, it is likely to fall under the theory of small coins. However, there are some questions as to whether it is a public work and, if so, who is responsible for managing it.
 In Chapter 3, after examining the legal provisions related to currency in the German and Swiss copyright laws, the author looked at the interpretation of the relevant provisions in Germany and the case of the 10 Euro commemorative coin. The German court ruled that the 10 Euro commemorative coin did not fall under the so-called official work under Article 5 of the German Copyright Act.
 In the case of stamps similar to currency, there is also a case where it is said that it is a work of official service. In the case of Switzerland, means of payment are clearly defined as works that are not protected, and I introduce a case related to the 20 Frankenbank note of 1973.
 In Chapter 4, the author developed a theory of interpretation regarding cases where private works are included in public works.
 In Chapter 5 the author briefly commented on currency and copyright and mentioned that copyright issues may also arise with commemorative coins, securities, and souvenirs in the future.

Online gender-based hate speech in South Korea

ABSTRACT This article examines online gender-based hate speech in South Korea. The article first discusses how the phenomenon has evolved and what its main characteristics are. It also examines new developments in the phenomenon in recent years and provides a brief overview of Korean legislation relevant to the regulation of online gender-based hate speech. Against this backdrop, the article then discusses two notable and distinctive trends that have emerged with the rise of backlashes against feminism in Korea. The two trends are 1) a focus on misandry rather than misogyny, and 2) a denunciation of regulatory efforts as an unjust restriction on freedom. The article concludes that it is time to redefine online gender-based hate speech in Korea, for otherwise discussions on how to regulate online gender-based hate speech will be directionless and futile.

미국 민사소송에서 증거채부 결정시 사고 발생 후 취한 시정조치에 대한 특칙

Courts may investigate evidences when the evidences are necessary. If it is the sole evidence for the party's alleged fact, and if it is unknown whether an examination of evidence is conductible or when it is conductible, courts may dispense with an examination thereof. But that is all of legal regulation in Korea. In american procedure relevant evidence is basically admissible, but there are a few exemptions of admission to prove. Particularly when the evidence is of subsequent remedial measures, it is not admissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction. But courts may admit this evidence for impeachment or if disputed, proving ownership, control, or the feasibility of precautionary measures. This article speculate the rule 407 of FRE which regulates subsequent measures and decisions thereof. Especially the terminology of feasibility exception is deeply introduced, and the circumstance of the impeachment exception is well studied. I want this study to improve Korean legislation and court decisions.

From the EU-South Korea to the EU-New Zealand free trade agreements: A path leading to a breakthrough in the enforcement of labour rights

The analysis of the path that led to a breakthrough in the European Commission’s thinking about trade policy in the context of enforcing labour rights turns out to be crucial for formulating further postulates regarding the content of new free trade agreements (FTAs). The arguments contained in the article focus on the problem of the lack of sanctions in FTAs of the fourth generation. The author discusses the EU-South Korea FTA, as it resulted in convening a Panel of Experts whose report contributed to the ratification of ILO Conventions nos. 29, 87 and 98 by South Korea. However, the amendment to Korean legislation has not fully implemented these Conventions. This resulted in a breakthrough in thinking about trade policy. The revision of views on the promotional approach presented by the European Commission was visible in the content of the new FTA concluded in 2022 with New Zealand. It rightly provides for the possibility of sanctions in the event of a serious violation of labour rights, which, according to the author, qualifies it as a FTA of the fifth generation. However, it does not mean that the FTA is perfect. Comparative legal research has led the author to formulate de lege ferenda postulates in this regard.

청원경찰법제의 법체계적 정합성에 대한 고찰

According to the REGISTERED SECURITY GUARD ACT, the registered security guard are required to perform the duties prescribed in the Police Officer's Job Execution Act, and in that respect, the character of a public administration performer is remarkable in terms of duties, while the working relationship of the registered security guard is basically similar to the employment relationship of private law. For that reason, the legal issue surrounding the registered security guard brings legal ambiguity in various aspects.
 This problem situation is especially remarkable in the case of registered security guard working in the public sector, in that the employer is the administrative entity of the state or local government, as well as the public administrative nature of the work. On the other hand, in the case of petition police working outside the public sector, the legal problem is more pronounced in that the REGISTERED SECURITY GUARD ACT is generally applied due to its status as a registered security guard, even though the characteristics of private law are very strong in the nature of labor relations. In particular, the registered security guard in the private sector are the cause of legal ambiguity compared to general labor relations of private law in that they are substantially similar to the security work under the Security Services Industry Act, which is the subject of the permission system.
 In Korean legislation that presupposes the distinction between public law and private law, the distinction between public law and private law needs to be distinguished in various aspects, such as differences in legal relations and applicable laws, so it is necessary to secure legal systematic consistency corresponding to this in the registered security guard law system.
 The REGISTERED SECURITY GUARD ACT is intended to be a general and complete discipline for the registered security guard system, but the actual regulations are mostly fragmentary and individual regulations for solving phenomenal problems, not consistent systematic legal principles, even so, public law and judicial characteristics are mixed, so this situation is the cause of ambiguity in the interpretation and application of the law.
 For this reason, it is necessary to improve the petition police law, regarding the direction of improvement, considering Korea's legal system based on the distinction between public and private law, it is logical and consistent to legal system to classify the legal relationship of a person who is performing public administrative work through employment relations in the public sector into public law relations. Therefore, it is a reasonable direction to improve the legislation to separate and regulate the registered security guard working in the public sector which inevitably have strong public legal characteristics and the registered security guard working in the private sector with significantly less public legal characteristics.

Voting in a Pandemic: Lessons From the 2020 South Korean Legislative Election

In this paper, we examine the extent to which a government's response to a pandemic affects election outcomes. Using detailed data on South Korea's 21st legislative election, held in April 2020 during the COVID-19 pandemic, we find that a candidate of the ruling Democratic Party was less preferred in electoral districts where the COVID-19 infection rate was higher. We also find that the South Korean government's successful control of the disease contributed significantly to the overwhelming victory of the ruling party against the leading opposition party. Specifically, our counterfactual analysis predicts that each party would have taken 129 and 102 of the 231 constituency seats considered in the analysis, respectively, had the COVID infection rate been the same as the OECD average during the election period. Given that the observed result was 147 to 84, this implies that 18 electees of the ruling party would have lost to the candidates of the leading opposition party, which in turn would have granted the opposition party the ability to block any attempt by the ruling party to fast-track debatable bills.

A comparative legal analysis of the institutions of non-contractual liability in the two Koreas

The article provides a comparative legal analysis of the tort law of the Republic of Korea and the Democratic People’s Republic of Korea. The existing difference between the legal institutions of the two Koreas is considered, taking into account the influence of foreign legislation, among which special attention is given to the norms of the Russian Soviet Federative Socialist Republic (RSFSR). The author of the article shows that the historical roots of legal norms and the specifics of the political and economic system played a decisive role in the formation and development of the diametrically opposite institutions of tort law in the two Koreas. For example, the Civil Code of the Democratic People’s Republic of Korea, in contrast to the Civil Code of the Republic of Korea, establishes the principle of presumption of fault, which is a consequence of the direct and inevitable impact of Soviet law on North Korean legislation. Considering that, in contrast to bourgeois pre-revolutionary Russia, where, as in most Western countries and the Republic of Korea, the principle of the presumption of innocence in tort obligations was recognized, a change in the approach to fault took place in Soviet Russia due to socialist ideological factors. It was these ideological principles that formed the basis of the legislation of the Democratic People’s Republic of Korea. Meanwhile the Civil Code of the Republic of Korea from the very beginning was based on completely different principles, as was the case in most Western countries. In addition to general tort, this article studies the norms of special torts, among which the emphasis is on the norms on liability for harm caused by minors and for harm caused by activities that create increased danger to others. It is these norms that best reveal the differences in the legal policy pursued by the legislators in South and North Korea. As is the case with general tort, different ideological principles that form the basis of legislation in the two Koreas led to a difference in the law of special torts. Although at present, the gap between South and North Korean tort institutions is not critical, it will become a serious problem in the medium to long term, as it will negatively affect the potential for unification of the two Koreas.

LEXEME OF KOREAN OFFICIAL LANGUAGE

The article examines the vocabulary of Korean legislation, its general features, lexical units with common features used in legislation, methodological features, functions, lexical units that differ in their place in the formation of an official text, including methodically lexical units, neutral units of general speech and formal Special units in the status of basic units that logically and semantically form the text, are considered on the example of articles from the basic law of the Korean language.

Climate change co-sponsorship networks in South Korea: focusing on formal and informal ties of legislators

ABSTRACT This study analyzes the formation of climate change co-sponsorship networks among South Korean legislators from the 18th to the 20th National Assembly and provides a comprehensive understanding of the interdependent co-sponsorship behaviour to address climate change at the domestic level. Legislators’ formal ties are defined by their political party membership whereas informal ties are defined by other shared characteristics such as re-election status as well as regional (jiyon) and education-based (hakyon) ties. While it has been commonly viewed that Korean climate politics did not experience major conflicts between political parties, this study observes that Korean legislators demonstrate strong party homophily in their climate change co-sponsorship networks. This study also finds that rational legislators are influenced by their informal social relations. More experienced legislators tend to be less engaged in co-sponsorship activities and legislators from the politically sensitive regions are more likely to form co-sponsorship ties among themselves.

최근 일본의 개정회사법상 사채관리보조자에 관한 검토

The bond administrator system in Japan was introduced with the amendment to the Companies Act in 1993. However, in practice, few people wanted to become a bond administrator because of the onerous duties and responsibilities of bond administrators. In addition, there were high costs for a bond administrator. Therefore, when the Companies Act was amended in 2019, the bond administrative assistant system was established. The bond administrator has comprehensive authority for administering bonds with a wide range of discretion. On the other hand, the bond administrative assistant system requires that a bond administrative assistant, a third party, assists in bond administration for bond holders on the premise that bond holders will administer bonds by themselves.<BR> Therefore, the scope of authority and discretion of a bond administrative assistant is more limited than that of a bond administrator. As such, bond administrative assistants do not have a wide range of discretion for administering bonds on their own. Rather a bond administrative assistant provides assistance in the administration of bonds by bond holders, such as ① reporting bankruptcy claims of bond holders and ② in the case of a claim by a bond holder, providing help in administering the bonds, such as through organizing a meeting of bond holders. This article reviews the overall bond administrative assistant system and considers the effectiveness of Korean legislation.

유엔해양법협약 상 해양과학조사제도에 관한 국내 입법례 분석

The Korean government partially revised the existing Marine Scientific Research(MSR) Act in order to MSR conducted by areas beyond Korean jurisdiction on 22 December 2020, as a party to the UN Convention on the Law of the Sea. There is stipulated in the United Nations Convention on the Law of the Sea in 1982(hereinafter referred to as UNCLOS) all States and competent international organizations have the right to conduct MSR regardless of their geographical location. The agreement varies its regulations depending on the territorial sea, the exclusive economic zone, the continental shelf, the high seas and the Area. However, despite these regulations, there are clear limitations of marine scientific research activities in areas where no agreement has been reached on maritime boundaries of less than 400 nautical miles. So in this paper, I examined various legislative cases in Korea related to MSR, as a party of UNCLOS. Moreover, I analyzed the cases of marine scientific research around Dokdo between Korea and Japan in 2006, the dispute to the Ieodo in 2006 and the Buoy case in 2018 between Korea and China. Through this analysis, I considered way to improve the Korean Legislation related to MSR.

한국 호텔기업의 루키즘 지향(Lookism-oriented) 고용과 조직유효성의 관계 연구: 조직공정성의 매개효과를 중심으로

The purpose of this study was to evaluate how employees perceived lookism-oriented employment which involves the concept of ‘beauty-oriented Korean culture’, ‘physical related’, ‘appearance related’, ‘Korean legislation’, ‘appearance-oriented employment environment’ and how it influenced organizational effectiveness by applying procedure justice and interactional justice and employing the SEM(Structural Equation Modeling) approach. The survey was conducted from September 2nd to the 30<SUP>th</SUP> of 2019, and a total number of 315 responses who were working at hotels in Seoul and Busan were used for the final analysis. The results of this study demonstrated that the ‘beauty oriented’, ‘physical related’, ‘appearance related’, ‘Korean legislation’, ‘appearance-oriented employment environment’ had a positive influence on interactional justice in hotel companies. This study found that hotel provides the training opportunity to managers to refrain from mentioning the issue of appearance related in the aspect of improving organizational effectiveness.

Voting in a Pandemic: Lessons from the 2020 South Korean Legislative Election

In this paper, we examine the extent to which a government's response to a pandemic affects election outcomes. Using detailed data on South Korea's 21st legislative election, held in April 2020 during the COVID-19 pandemic, we find that a candidate of the ruling Democratic Party was less preferred in electoral districts where the COVID-19 infection rate was higher. We also find that the South Korean government's successful control of the disease contributed significantly to the overwhelming victory of the ruling party against the leading opposition party. Specifically, our counterfactual analysis predicts that each party would have taken 129 and 102 of the 231 constituency seats considered in the analysis, respectively, had the COVID infection rate been the same as the OECD average during the election period. Given that the observed result was 147 to 84, this implies that 18 electees of the ruling party would have lost to the candidates of the leading opposition party, which in turn would have granted the opposition party the ability to block any attempt by the ruling party to fast-track debatable bills.

"코로나19가 제21대 국회의원 선거 투표선택에 미친 영향: 정부대응 평가와 개인피해를 중심으로"

유권자들은 자연재해의 발생과 그로 인한 피해에 대한 책임을 정부와 현직 정치인들에게 묻는가? 본 연구는 코로나19의 확산 속에서 치러진 제21대 국회의원선거 직후 실시한 설문조사를 분석하여, 코로나19가 유권자의 투표선택에 미친 영향을 경험적으로 분석하였다. 분석결과에 따르면, 이번 제21대 국회의원 선거에서 유권자들은 코로나19로 인해 발생한 개인의 질병적, 경제적, 정신적 피해 유무를 투표선택에 반영하지 않았다. 그러나 코로나19 정부 방역에 대한 유권자 평가는 투표선택에 통계적으로 유의미한 영향을 주었다. 구체적으로 지난 정부의 메르스 대처와의 비교평가와 외국 정부의 코로나19 대응과의 비교평가가 유권자의 투표선택에 중요한 영향을 미치는 변수로 나타났다. 이러한 결과는 유권자들이 감염성 질병의 발생과 그로 인한 개인의 피해 유무로 투표결정을 하기보다는 재난에 대한 정부의 대응을 평가하여 합리적으로 투표결정을 한다는 것을 보여준다.

Marine Protected Areas in South Korea

South Korea has taken steps to achieve the Aichi Target 11 and several pieces of South Korean legislation require the government to make every effort to protect the ocean from pollution and manage conservation consistently. However, protected area coverage is recognized to be well short of target and recent assessment reports reveal that most MPAs are not managed well. The reasons for mismanagement are complex: lack of budget, lack of understanding among local residents and communities, vague jurisdictional boundaries between the regional office of the central government and the local governments, shortage of experts, etc. Therefore, the immediate and primary task for the government is to establish more effective management systems rather than increase the number and areas of the MPAs.

Compliance of Electronic Bill of Lading Regulation in Korea with Model Law on Electronic Transferable Records

Purpose – The UNCITRAL Model Law on Electronic Transferable Records (Model Law) is based on the principles of non-discrimination against the use of electronic means, functional equivalence, and technology neutrality underpinning all UNCITRAL texts on electronic commerce. Investigating the disagreements between the Model Law and the Koran Commercial Act (KC Act), including the B/L Regulation, and suggesting the revision of the KC Act including the B/L Regulation, could be a valuable study. The purpose of this paper is to contribute to the harmonization of Korean legislation regarding electronic bill of lading in compliance with the Model Law. Design/methodology – The Model Law is flexible to accommodate the use of all technologies and models, such as registries, tokens, and distributed ledgers: that is, blockchain. In 2007, the KC Act was revised to regulate electronic bills of lading to promote the widespread legal use of electronic bills of lading. In addition, The Regulation on Implementation of the Provisions of the Commercial Act Regarding Electronic Bills of Lading (the B/L Regulation) was enacted to regulate the detailed procedures in using electronic bills of lading in 2008. This paper employs a legal analysis by which this paper does find differences between two rules in light of technology neutrality and global standard of electronic bills of lading model. Findings – The main findings are as follows: i) the Korean registry agency has characteristics of a closed system. ii) The KC Act has no provision regarding control. iii) The KC Act discriminates other electronic bills of lading on the ground that it was issued or used abroad. Moreover, this study does comprehensive analysis of Korean Acts in comparison with the Model Law and, in particular, this study analyzes the differences between the KC Act and the Model Law by comparing article by article in view of the harmonization of the two rules. Originality/value – The subject of previous several studies was draft provisions on Electronic Transferable Records before completion of the Model Law; thus, these studies did not take into consideration the character of the Model Law as the Model Law was chosen at the final stage of legislation. This study is aimed at the final version of the Model Law. So, this study is meaningful by finding the suggestion and directions for the Korean government to revise the KC Act and the B/L Regulation in line with the Model Law.

The Impact of a Voter’s Retrospective Evaluation of Social Welfare on Vote Choices in the 20th Korean Legislative Election : Individual Ideology, Income, and Age

사회복지가 중요한 선거이슈이자 정부평가의 한 기준으로 주목받고 있음에도 불구하고 사회복지는 회고투표의 대상으로 관심을 받지 못하여 왔다. 이러한 문제의식에서 본 연구는 유권자들의 사회복지에 대한 회고적 평가가 국회의원 선거에서 정부여당과 정부여당 소속 후보들에 대한 투표선택에 어떠한 영향을 미쳤는지를 살펴본다. 특히 유권자의 이념성향, 소득수준, 연령이 이러한 복지회고 평가에 미치는 영향을 조사한다. 제20대 국회의원 총선거 유권자의식 조사 데이터를 분석한 결과, 유권자의 사회복지에 대한 회고적 평가는 정당명부투표선택에서 정부여당에 대한 투표선택에 유의미한 영향을 미치는 것으로 나타났다. 또한 이러한 사회복지 회고평가에 기초한 투표선택은 유권자의 이념성향이 진보적일수록, 연령이 높을수록 더 강하게 나타났다. 반면에 소득수준의 경우에는 특별한 영향을 미치지 않았다. 한편 지역구 투표선택에서는 유권자의 회고적 평가가 투표선택에 유의미한 영향을 미치지 않았다. 본 연구의 결과는 한국 선거에서 사회복지에 대한 유권자의 평가가 정부에 대한 회고투표의 대상으로 등장하고 있다는 것을 보여준다.