金融監督과 法治主義

이서열(Lee Seo-Youl) 한국토지공법학회 2007 土地公法硏究 Vol.37 No.2

  This study starts with the author"s perception that the current integrated financial supervisory system of South Korea has been differentiated from the past pattern of governmental control over the financial market, which chronically damaged the efficiency of the country"s financial policies. With a review of the current system, the author examines constitutionalism behind financial policies and suggests a financial supervisory system which is fundamentally free from undue governmental control over the financial market and ultimately contributes to South Korea"s overall economic structure.<BR>  To be sure, the concept of constitutionalism for various interests of economic participants cannot be exhaustively explained by the term of impartiality. Also, it is more than a truism that constitutionalism among different interests of financial market is very hard to grasp or reach, in reality. further, even after a "constitutionalism" concept is used for settling various problems which have been happened in financial market. In many cases, constitutionalism is contained more reasonable standards about allnless and worthless economic ideas (and political compromise) of democratically-elected policy-makers. Especially, the skeptic against the value of constitutionalism would insist that "Efficiency be more important than legal theory in the economic field": constitutionalism could be regarded just as a specific value/interest-oriented attitude to be revealed.<BR>  Despite all the conceptual fuss and skepticism, the constitutionalism"s control and check of financial supervisory authorities should be still guided by the main principle of market-regulation. And the authorities involved should apply the principle to their evaluation of current policies and suggestion of alternatives though it is tricky. Also, it should be noted that constitutionalism in field of financial supervisory authorities will be more attained when the authorities perform their discretion as much as the Constitution allows while aware that the constitutional economic order respects freedom of each economic participant and denies any exclusive governing power of one or a few.

정보공개법제의 발전과 향후 개선과제

이서열 ( Lee Seo-youl ) 한국외국어대학교 법학연구소 2008 외법논집 Vol.30 No.-

The aim of Information Act in korea is securing the right to know from constitution. whether a state have a legal system of Freedom of Information or not, it has become a important standard of Democratic system. Korea is the one of advanced countries with well-made Information opening system. It has very good influence on democracy of korea. we established information opening act institution 1996 at first (12th legitimated country of the world). it proves to be lands of democracy that country' own information must open to nation. nation's right to know is not on written constitution. but it is recognised as constitutional right based on 21 clause (right of freedom of speech). though this right is not written on constitution, it includes asess, collecting right to origin of information , petition of asking for opening information which belong to state. the debate whether this right is real active right no based on law or nor have developed steadily. finally constitutional court ruled that right to know is secured on 21th clause directly. However, the recent Information act system is not perfect. for instance, a vague and a vast range of closed information. therefore, It weakens nation's right to know. Of course, steady revising of system is praised on the large side, because of Electronic methods, establishing the ruling Committee of Information opening, regular opening system of government controlling. The court have ruled in direction to secure the right of person who ask for opening information against government dor public institutions. originally, every information which belong to public agencies is nation's poverty regarding as principle of nation sovereignty. therefore In forwarding, though Information Act keep revising steadily, always should be open to public who want to. because Government considers mechanical efficiency, order, hierarchy system, security as crucial things, they tend to reject to ask for open information which keep in. same as another countries which have information act. that is due to a secretism. for improving Information act system, nation must steady concern to this legal system. the confrontation of cons& pros about revising this system reflects court's rules relevant to information opening act and draft for legitimacy through constructive communication each other, after this, contribute advanced information opening system.

금융의 국제화와 금융감독의 법적 과제

이서열 ( Lee Seo-youl ) 한국외국어대학교 법학연구소 2007 외법논집 Vol.27 No.-

The internationalization of financial services is an important issue for the strengthening and liberalizing of financial systems in korea. There has been considerable support for the view that internationalization can assist korean finance market in building financial systems that are more stable and efficient by introducing international standards and practices. At the same time, there have been concerns about the risks that internationalization may carry for some aspects, particularly in the absence of adequate regulatory structures. This paper examine different aspects of this debate, the relative benefits and costs of internationalization, and together provide an insight into the diversity and significance of the effects of internationalization on domestic financial systems. Apart from other benefits, internationalization helps build more robust, efficient financial systems by introducing international practices and standards; by improving the quality, efficiency, and breadth of financial services; and by allowing more stable sources of funds. However, Financial Supervisory Service carries out strictly concrete authorities delegated from the Financial Supervisory Commission. Nevertheless It must insist that financial supervisory policy(against bad capital from oversea)be ruled by the regulation guidelines under the law. But it won't scratches the surface in calling for good capital and the impartiality policy of financial supervision.

憲法上의 政黨制度와 民主主義의 葛藤

이서열 ( Lee Seo-youl ) 한국외국어대학교 법학연구소 2007 외법논집 Vol.28 No.-

Korean have have restored Democratic Institution through the tough fight against undue repressive regimes in past years. however, Democratic Practice isn't yet achieved. It has become a huge barrier of 21 korean politic development that the inside thought-gathering system is not working. Meanwhile, The Political Party that accomplish Democracy of inner party can be protected by Constitution. Constitutional Supreme Court ruled that The right meaning of Democracy correspond domocratic thought-gathering system of Political Party. The principle that the Sovereignty rests with the people can be garanteed by developing democratized party which communicates well inside. therefore, main reason that Constitution certificate Political Party institution is securing fundamentally nation-sovereingty , Democracy fo election system as well.

사업활동의 자유와 관허사업제한

이서열(Lee, Seo Youl) 한국토지공법학회 2014 土地公法硏究 Vol.64 No.-

국가의 허가에 의해 사업활동의 자유를 제한하는 관허사업제한제도는 다른 나라의 입법례로 드문 경우이다. 입법형성권은 입법자의 자유영역에 속하지만 관허사업제한의 제도는 사업활동의 자유를 광범위하게 침해할 우려가 있다. 따라서 관허사업제한제도는 공익과 법원칙의 준수를 통해서만 정당화될 수 있다. 관허사업의 제한이라 함은 행정법상의 의무를 위반하거나 불이행한 자에 대하여 각종 인ㆍ허가를 거부할 수 있게 함으로써 행정법상 의무의 준수 또는 의무의 이행을 확보하는 간접적 강제수단을 말한다. 이 수단을 사용하는 것이 직접적 수단을 사용하여 행정목적을 달성하기가 어렵기 때문이다. 과거 부당결부금지원칙의 위반과 관련하여 집중적인 논의가 존재하였으나 현재 행하여지고 있는 관허사업제한제도의 변천과 부당결부금지원칙중 실질적 관련성에 대한 논의가 미흡하다. 단지, 학계에서는 부당결부금지원칙의 핵심요건으로 실질적 관련성에 대해 언급하고 있고 이는 원인과 목적의 관련성을 의미한다고 말하고 있다. The legal institution which restricts business activities by governmenal permission is founded rarely in another countries. The right of forming law is given widely to lawmaker. however, The refered institution could be infringed the freedom of business activities (constitutional right). therefore That is justified by sufficient reason of public interest and observance of legal principle The restriction of business activities by governmental permission among these new mean such as revocation of authorization and permission acts fully effectiveness with indirect compulsory measure linked to reflective interest. that is why it is hard to accomplish the purpose through old methods. In past years, The debates about infringing law and constitution by the restriction institution is mainly builded up in focus on violation of principle of prohibition of improper connection. The principle which prohibited administrion linked to unfairness. If the principle of excessive prohibition of administration can invoke objective limition to be applied in advance. A completion requisite of principle of prohibition of improper connection is substantial connection. the Substantial connection is consisted of linking of both cause and object. The restriction is not seemed to satisfy two requisites.

개정 정보공개법의 내용과 최근 관련판례의 동향

이서열 연세법학회 2005 연세법학 Vol.11 No.1

The ultimate aim of Freedom of Information Act(FOIA) is the protection of constitutional right to information. whether a state have a legal system of Freedom of Information or not, it has become a crucial criterion of modem democracy. Republic of korea is the first state which have Freedom of Information Act in Asia 1996. It prove the great endeavor for democracy of korea. However, the established act had several insufficient parts, the most things of that is obscurity and wide range(of closed information ). therefore, Civil associations has criticized the problems of FOIA. after all , FOIA revised secondly in 2003. It contain opening of information by Electronic methods, installing the ruling Committee of Freedom of Information, regular opening system of government-controlling information etc. Recently, The rulings of Supreme Court have changed direction to protect applicants. For instance, Court allows everyone to claim opening of information without legal interest, giving applicant opened pattems -reading, copying, e-mail and so on.

국가의 경제개입과 헌법질서 : 경제규제의 새로운 패러다임 searching for new paradigm of administrative regulation on market

이서열 연세법학회 ( 구 연세법학연구회 ) 2003 연세법학 Vol.9 No.2

This report analyzes some issues that gave rise to heated discussions on economic law. Especially, the core of these disputes is on whether the regulation on the market by government is good thing or not. Before World War Ⅰ, the majority of economists predicted that the governmental regulation would have a bad influence on the market so it should be left to flow naturally like a river. However, it proved to be failed by Great Depression after World War Ⅰ. The ultimate aim of economics is the proper distribution of resources. In conclusion, although the governmental intervention once achieved considerable amount of success, It is not one of necessary nor a sufficient condition of perfect market any more.