溫泉의 私權性 保障論

소성규(So Sung-Kyu) 한국부동산법학회 2003 不動産法學 Vol.8 No.-

For the public welfare, the law over hot spring water is regulated for the purpose of developing hot springs efficiently and for the proper protection of them. According to the emphasis on the purpose of the contribution of the public welfare, the rigid enforcement of the administrative regulation has been increased. As a result, the enforcement brought a phenomenon neglecting a private life. Therefore, there have been some phenomena that the local dwellers of the area that has been developing a spa do not like the development rather than welcome it. The reason why the inhabitants do not like the development of a spa is that after making decision on a zone for the developing a spa, the land will have the rigid regulations of the government on using and utilizing the land. Furthermore, the value of land is decreasing also. In the other hand, a spa development can bring the excessive utilization of underground water that causes the lack of agricultural water and the contamination of the ground water. The owners of spas also have the same kinds of dissatisfactions with dwellers. The owners speak out their dissatisfactions that the current doctrines and the judicial precedents are denying a private right of ownership of a spa, and there is no clear legislation over the issue so that they could not mortgage their land for a capital. Even though the value of the land is considerably high, the value can not be acknowledged. The auction process also has the same situation openly. Therefore, to appraise a right over spar zone properly, people have raised an objection to disregarding a right over a spa ownership as a real right at the viewpoint of the customary law. This study has been started from the idea of admitting the ownership of a hot spring as the real right in the term of the customary law rather than issuing the problems, which have no alternatives, because there have been some public trades definitely in Korea since long time ago, even though there were not that much cases. In sum, the study suggests a plan that admits the ownership of a hot spa as a real right, and that guarantees the private right of spa, differentiating the current rigid administrative regulation. Main contents of this study are as follows. Ⅰ. Introduction Ⅱ. Comparative research studies on hot water Ⅲ. Theories and cases on the issue of the private right security of hot water Ⅳ. The lawful relationship on the private right security Ⅴ. Methodologies on the private right security Ⅵ. Conclusion

종교단체의 법적 규율을 위한 입법적 시론 -이른바 종교법인법의 제정을 중심으로-

소성규 ( Sung Kyu So ) 한국법정책학회 2012 법과 정책연구 Vol.12 No.2

Our country is a religious pluralistic society where various religions are co-existing and is characterized as ``a unique religious laboratory``. In 2008, more than as much as 510 religious bodies / religious sects existed in all, including religions created spontaneously along with other foreign religions. In Korea, 53% of Koreans believed that they are religious people. In spite of the fact of this current state of religion, a unifying legislation governing the religious groups can`t be found in Korea, thus leading to several different religious problems and the movements being required to enact the Religious Corporation Act in earnest to solve the problems. This thesis will address the necessity and direction of an enactment in the Religious Corporation Act based on the study discussed. It`s thought that various positive effectives have been occurringthrough the enactment of the Religious Corporation Act. Especially, religious groups can become transparent, provided that they are incorporated as provided by law and upon the division of religion and state, the practice that politician have been glancing at the religious world will disappear and also the wrong tendency that religious people snooping around the political world like that will be gone also. I understand that there will be a criticism hindering the freedom of religion,but the religious problem such as pseudo-religion will disappear as religious groups are getting managed integratively. Certainly, there is an opinion that objects to the reason in which the existing legal system can regulate sufficiently in accordance with the legislation of Religious Corporation Act. However, the enactment of the Religious Corporation Act can improvethe prevalent problem in the religious groups and emphasize its true posture and role; by doing this, it is thought that religion give us guidelines that can find in its true light after it appeared in this society.

북한이탈주민의 가족관계등록과 중혼문제해소를 위한 법제도 개선방향 -경기도 북한이탈주민 인식조사를 중심으로-

소성규 ( Sung Kyu So ),손경식 ( Gyeong Sig Son ) 한국법정책학회 2011 법과 정책연구 Vol.11 No.2

According to the Protection of Defecting North Korean Residents and Support of Their Settlement Law, Defecting North Korean residents mean persons who have their residence, lineal descendants, spouses and work places in North Korea and who have not acquired any foreign nationality after defecting from North Korea. The number of North Korean defectors to South Korea was not big before 1990s. However, after North Koreans suffer economic difficulties during late 1990s, the number of North Korean defectors exceeded 20,000 people. I think it is our responsibility to help North Korean defectors enjoy the rights of human beings and play an important role in reunifying Koreas. But it turns out that almost all of the North Korean defectors who live in South Korea have suffered a lot in many fields of their life. Especially, as more and more North Koreans defectors come to South Korea as family units or after already got they married in North Korea, family related issues from North Korean defectors are emerging. The purpose of this study is to review the problems for North Korean defectors have in the matter of existing marriage and divorce provisions related to the family law area, and to suggest solutions regarding present situation. To achieve this purpose, unlike the previous studies which focused on referring books, an empirical analysis was adopted in this study. As the part of the empirical analysis, a survey on North Korean defectors` perception on living environment in South Korea was conducted and after analyzing the survey, we reviewed how we can help North Koreans defectors effectively and what is a realistic measure to better the life of North Korean defectors in South Korea. The survey was done on 169 chosen North Korean defectors out of 4,891 North Korean defectors who lived in Gyeonggi Province as of late February of 2011 by the help of North Korean defectors Caring & Counseling Center after considering their characteristics of not revealing identities. The survey shows that North Korean defectors have a very strong desire to get married or marry again. Especially, more than 80 percentage people who are already married have an intention to get married again, but according to the South Korea`s civil law of 810 article, committing bigamy is illegal. To have a new marriage life in Korea, North Korean defectors have to end the relationship legally first with the spouses who are left in North Korea. North Korean defectors have a very negative view toward the fact that they can divorce spouses who live in North Korea in South Korean courts, which is possible according to the Protection of Defecting North Korean Residents and Support of Their Settlement Law`s Article 19-2. The prevailing view is that to have a divorce suit with spouses who don`t live in Korea is a mere formality. North Korean defectors ask for the improvement of domestic relations register form which causes committing bigamy. Around 75.3% of North Korean defectors who conducted the survey think they must not be forced to write down about their or their spouses personal information and they can write them down on the domestic relations register only if they want to. However, if we consider the continuity of family status of North Korean defectors who fled to Korea as a family unit, it is desirable, as a rule, for North Korean defectors to write down requested information. But at the same time, to contain an exceptional clause should be needed. It is ascertained that the prejudice level by South Koreans toward North Korean defectors is serious through the survey. 77.9 % of respondents rated South Koreans prejudice toward them as serious or slight serious. So the survey shows that changing South Koreans attitudes toward North Korean defectors is necessary. Desirable direction which was drawn from the survey is that institutional complement is needed so that North Korean defectors who are in Korea don`t have to suffer from the problems of bigamy. My judgement is that it will be very difficult for North Korean defectors who are not accustomed to Korean Law to accomplish the intended goal through trial. The suggestion I would like to bring up is to revise family registration regulation 219 which causes the problems of bigamy and which was enacted by the Supreme Court. According to the regulation number 219 which was enacted by the Supreme Court on Dec 10, 2007 for the purpose of adapting to a family registration law, if spouses of North Korean defectors live in North Korea, then North Korean defectors must write down the reason for the marriage, name & date of birth, address of spouses and the reason why their spouses live in North Korea. It is worth examining the regulation number 219 if you want an exceptional clause to be contained in the regulation number 219. And the exceptional clause is - if the person directly involved doesn`t want to maintain the marriage relationship with the spouse who live in North Korea, then they don`t have to write down their spouses information. Next, tentatively named a law covering family relations and inheritance between Residents of South and North Koreas is being enacted, I hope the issues that my study dealt with, such as marriage and divorce related to the North Korean defectors, will be reviewed as forward-looking approaches. Lastly, it seems that we, South Koreans need to change perceptions to North Korean defectors so that North Korean defectors can take pride in becoming residents of South Korea and live a stable life and no more feel themselves as strangers. My judgement is that we, South Koreans need to change perceptions to North Korean defectors and by making up for weak points in the current system and current law, we can help them encounter less financial hardship.

이혼가정 미성년자녀의 양육적정화를 위한 법정책적 연구

소성규 ( Sung Kyu So ),허태갑 ( Tai Kap Hur ) 한국법정책학회 2013 법과 정책연구 Vol.13 No.3

As the number of divorced families increased, the problem of welfare of the minors has resurfaced as not merely a parental problem but a social issue. Divorce, in legal terms of marriage contract annulation and parenting of the minors have become an important task of family law. This well reflects the main purpose of revised civil law in 2007, which prioritizes the welfare for the underage when one gets divorced. The social recognition of processing problems of children is growing but the status quo does not even come along with legal recognition. Nurturing the minors means not only guaranteeing their basic rights to live as human-beings, but also caring their education and economic ability as they could become an independent member of a society. Approaching this problem of child upbringing of divorce simply on division of wealth, the nation could be seen as only trying to exempt parental responsibility for a parent, rather than focusing on child`s development to become a rational social member. Therefore, this study suggests a reasonable and efficient solution of parenting policy of divorced family for the purpose of welfare and socialization of the minors. Recently, after the divorce, the issues on child rearing expenses were brought up but supporting only on child rearing expenses inheres inhumane thinking that child upbringing is only up to provide food, clothing and shelter. In many developed countries, divorce means only the end of marital status and parents take corporate responsibility for the upbringing of their children. Because, it is difficult to provide the basics for the children before the necessary financial support, the nation should implement the pre-financial aid policy, and consider to re-collect the payments afterlife. Furthermore, it is essential to verify such expenses to secure their propriety. The improvement for the system to prevent immoral rearer alteration is also needed. The court is nearly impossible to take care of all these duties. Thus, setting up the communal childcare auxiliary agency is definitely necessary.

통일교육 활성화를 위한 법제도 개선방안

소성규 ( Sung-kyu So ) 한국법정책학회 2017 법과 정책연구 Vol.17 No.2

The Unification Education Support Act stipulates basic laws and ordinances for promoting and supporting education on the unification of South and North Korea. The Act, however, is lacking in various aspects as an institutional framework for unification education. In particular, Article 7, which prescribes the reflection of unification education and Article 8, which states the promotion of unification education at schools are not mandatary provisions. As such, one should contemplate the necessity of unification education in public institutions or in public domains. Previously, discussions on unification education were confined to the realm of politics and education and little has been discussed in a legal perspective. Thus, this research presents the current situation of unification education in public institutions and then investigates areas, which requires legislative improvements. From this, the paper derives possible measures to enhance the legal framework for unification education. In order to do so, it scrutinizes the cases in Germany and seeks to find its implications in South Korea. To amend the Unification Education Support Act, the paper establishes legal grounds for Unification Education Week and contests to reinforce accountability for unification education support among public institutions such as the ROK government and local governments. Moreover, it constructs legal basis to designate or to cancel unification buildings, and describes ways to enforce unification education for public servants. It also finds grounds for improving and promoting awareness of unification education. Finally, the study reexamines the role of regional unification education center and unification education committee. Regarding improvement measures, the paper proposes to establish a close cooperation system in institutions of unification education, to foster experts on unification by creating a professional unification education course in public institutions. In addition, it looks into increasing support for unification education at schools, and seeks ways to revitalize unification education in Korean society. Lastly, it researches the Korean version of efforts to bring “Beutelsbach Consensus.”

농업생산성의 제고와 농지의 합리적 이용을 위한 농지임대차법제의 개선방안

소성규 ( Sung-kyu So ),서창원 ( Chang-won Seo ) 한국법정책학회 2018 법과 정책연구 Vol.18 No.2

A farmland lease is a contract in which the legal object is farmland. This is in contrast to the Housing Lease Protection Act and the Commercial Building Lease Act, in which the legal objects are a private house and a commercial building respectively. The law pertaining to the agricultural land realizes the land to the tillers principle of the Korean Constitution; however, at the same time, a lease contract is predicated upon the Korean Civil Code. Specifically, the Farmland Act stipulates that no farmland, except for the cases stated in the law, shall be leased or lent gratuitously. Despite such policy, many people are facing huge difficulties in finding leaseholders, resulting in an excess supply of idle agrarian land. Also, the agricultural population is considerably declining, which is a double blow to the problem. This reality only highlights the question of whether it is necessary to maintain the land to the tillers principle. If so, a thorough discussion on how to establish appropriate legal interpretations that best reflect the current condition is essential. In light of this, this research suggests legal interpretations that are in accordance with the constitution and measures to improve agricultural productivity and efficiency from the standpoint of the constitutional principle. First, an efficient and effective usage of the farmland lease policy without undermining the constitutional principle is needed in order to bring about structural reform to a diversified and complex agricultural sector. Secondly, revising the Farmland Act is required to enhance autonomy in terms of farmland rental contracts and to protect a lessee. Especially, the law should prescribe penalties for violations of a written contract and extend the duration of a farmland lease contract to at least 5 or 10 years. With respect to the transfer of farmland, legal measures that give priority to a leaseholder should be considered. Moreover, since solely relying on the article regarding 3 months of implicit renewal is insufficient to protect a lessee, it is essential to enact regulations that guarantee a long term contract and set the maximum limit for rents. Also, a lessee should be provided with the right to terminate a lease contract in case of alienating the property to a transferee. This would safeguard the lessee from adverse effects of succession to legal status of a lessor. Thirdly, relevant farm workers should be able to claim the right of preemption for farmland entrusted to a farmland bank. Fourth, it is needful to offer commensurate incentives for lessors through restructuring farmland taxation. These benefits can be provided in the form of tax reduction such as remitting acquisition tax, property tax, capital gains tax and etc. Particularly, in case of a long term rental arrangement for 8 years or more, 70% of special deduction for long-term holding, a rate that is also applied to general house lease, should be accounted when calculating capital gains tax. Also, it may be significant to eliminate non-business purpose land classification so that the extra tax rate(10%) is not added to the standard tax rate(6%~42%). Lastly, additional tax deduction should be offered to a long term leaseholder who executes his/her right of preemption.

『수도권정비계획법』의 개정방향 -경기도를 중심으로-

소성규 ( Sung Kyu So ) 한국법정책학회 2001 법과 정책연구 Vol.1 No.-

제9회 학술대회 발표논문 : 접경지역지원법의 실효성 확보방안 -경기북부지역을 중심으로-

소성규 ( Sung Kyu So ) 한국법정책학회 2002 법과 정책연구 Vol.2 No.1

일반연구논문 ; 발전소 주변지역 지원사업에 관한 인식조사 연구 -포천복합화력발전소 주변지역 주민과 전문가·교사를 중심으로-

소성규 ( Sung Kyu So ),김종수 ( Chong Soo Kim ) 한국법정책학회 2015 법과 정책연구 Vol.15 No.3

The Act on Assistance to Electric Power Plants-Neighboring Areas (AAEPP) is established to support residents around power plants. The purpose of this Act is to promote the development of electric power resources, strive for the harmonious operation of electric power plants and contribute to regional development by efficiently carrying out assistance programs to the neighboring areas of electric power plants and raising public awareness of electric power business. From the residents`` perspective, the primary purpose of this Act is to promote regional development through assistance programs. According to this Act, the assistance programs are confined to the area of a Eup/Myeon/Dong, which includes the land and island located within five kilometer radius from the location where an electric generator of an electric power plant is already installed or to be installed (AAEPP Article 2). The kind of assistance programs is basic assistance, special assistance, public relations, and other programs that are necessary for the development of the neighboring area, its environment and security management, and the advancement of the development of electric power resources (AAEPP Article 10). The basic assistance is an annual program that is aimed at developing neighboring areas of the power plant, which begins from the construction of a power plant till the suspension of an operating power plant. However, the special assistance is a temporary program for a neighboring area where an electric power plant is being constructed or prearranged to be constructed and areas of the relevant Special Self-Governing Province, Si, Gun and autonomous Gu (hereinafter referred to as local government). Therefore, it not only assists the neighboring area within five kilometer radius but also supports local government. This difference in legislation and programs creates conflicts for residents about the power plant construction. This, of course, may not be a major problem when a broad variety of opinions from the residents are considered. However, inadequate communication along with the problems of the current legislation during the process of power plant construction is widely seen as a serious issue in reality. Thus, there is constant conflict within this system. This research scrutinizes the existing problem of the legal system and suggests its legal policy implications and its development plan through an awareness investigation of residents, experts, and teachers in the region around the power plant. Nevertheless, power plants are operating in various places across the country. Although it is ideal to analyze all of the regions, this research focuses only on Pocheon Combined Cycle Power Plant in Pocheon, Gyeonggi-do because of economic and time factors. Thus, this research at least provides some empirical recognition of the people around the power plant. Lastly, the enhancement strategies are as follows. First, public conflict management should be institutionalized. Secondly, an early establishment of democratic local governance system, which promotes social capital and settles conflicts through mutual trust and democratic participation at local level, is necessary. Lastly, a new concept of assistance program model should be constructed to benefit residents around the power plant.

결혼이민자 인식조사를 통한 다문화가족 법제도의 개선방향 -포천시 사례를 중심으로-

소성규 ( Sung Kyu So ) 한국법정책학회 2010 법과 정책연구 Vol.10 No.2

In the Korean society, the numbers of immigrants and the multicultural family have increased in foreign population since 1990. These foreigners mostly live in Seoul and Gyenggi-do, and among those cities in Gyenggi-do, Pocheon has the highest foreigners rate. As a result of this social change, Act on the treatment of foreigners in Korea, and Multicultural family support act established, and there have been studies on the actual conditions of multicultural families and their rights, and social supports which have brought about a huge interest in a diverse society in Korea. This research presents a policy plan through a basic investigation for Korea where it is becoming a multicultural society. Some of the past researches on multicultural family from the legal perspective mainly assessed its support policies and legal system ,and thus, Legislative assessments about multicultural family laws and reviews about multicultural family policies were like questions to solve. This research is based on comparative analysis and interpretative approach. However, it is different from that of past analysis in a sense that it has legal problems and its resolutions from the point of view of multicultural families who are the major among foreigners in Korean society. Still, there are some problems concerning this research. The survey method is not formal and the area of study is limited because it has a sampling bias (Pocheon, Gyenggido) due to insufficient funds and time. However, this research contains not only an observation of perception on multicultural family but also the method of study to fulfill the goal and the purpose of this research. Furthermore, government statistics are supplemented to substantiate our thesis more logically. Yet, the main research technique is primarily on legal studies about perception of multicultural family. This study provides certain directions for changes in the constitution. First, Korean federal and local governments must advertise and change their people`s recognition on multicultual family. Second, this research provides improvement measurements for educational issues. Third, there are also certain alternative solutions for unemployment and children issues. Fourth, constructing infrastructure for multicultural family is necessary. Fifth, specialists for this cultural cases and a social network must form in order to support multicultural family. Lastly, this investigation suggests a plan to unify foreign administrations. To maintain this act, since Act on the treatment of foreigners in Korea is about rights and nationality acquisitions for foreign residents and workers and Multicultural family support act affects only people who are going to acquire Korean nationality, we suggests to regulate these laws to bring about Korean society into a melting pot. Furthermore, we propose for local governments to amend their standardized laws since they are abstract and general. Moreover, Korean government must give incentives for their local governments when they pay grants. Just like a gender equality index to bring about equality in gender, each policy must consider foreigners and multicultural family and adopt foreigner equality index into their acts.