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전재경 한국법제연구원 2009 법제연구 Vol.- No.36
3 groups composed by members of the National Assembly of Korea rendered 3 bills relating climate change last year and early this year, and then the Government also rendered the Green New Deal(GND) Bill in face of the economic depression to the Assembly on February in this year. The Government for the first time announced the Climate Change bill but afterward revoked it and then brought a new bill substituting the former bill. The Special Committee of National Assembly for Climate Change is so undergoing review of 4 bills relating the Climate Change and the Green New Deal. The GND bill which was rendered by the Government hit the point of enhancement for economic growth through the paradigm shift from the non-green economy to the green economy as well as encountering with the Climate Change. But the GND bill has many problems in respect of legal theory and relations with another present rules. For example, the GND bill has some obscure concepts like the "green growth", "the green finance" and "the green industry", and its application coverage is too broad to regulate the overall legal relations about economy. The GND bill is also going to change the Basic Act for Sustainable Development and then put the concept of Environmental Sound and Sustainable Development(ESSD) under the concept of the green new deal(GND). It is more suitable in respect of legal stability for the GND bill to make short of its coverage, taking into account of another present rules like the Basic Act for Sustainable Development and the Basic Act for Energy which are apt to serve the goal of climate change and green new deal(GND) without subordinate relationship between the new GND bill and the old ESSD bill, because we can't find out any differences between the concept of GND and the concept of ESSD. The GND bill is requesting the Promotion of Conversion of Industrial Structure into Environmental Style [PCISES] Act to promote the green industry, so this Act should be revised to receive the request for the conversion of industrial structure according to the principles of the GND bill. But the coverage of the PCISES Act is too narrow to admit all the request of the GND bill, therefore the GND bill should prepare another apparatus for covering wholly green industry. At the same time, the GND bill should be given a supplementary legal system about making green jobs through adjusting legal relations among relevant rules like the Labor Standard Act.
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適法節次의 適正要素와 分析方法論 : 美國聯邦大法院의 判例를 中心으로
全在慶 동국대학교 대학원 1989 大學院硏究論集-東國大學校 大學院 Vol.19 No.-
Most essentially, due process of law embodies a promise to the individual that his government will treat him fairly. Due process of law is, however, such a broad and flexible concept that it eludes precise definition. Due process is primarily a guarantee of fair procedures, of 'how' the government must or must not do something, not of 'what' they must or must not do. "It is procedure". Justice William O.Douglas noted, "that spells much of the difference between rule by law and rule by whim or caprice. With the development of the doctrine of substantive due process, the Supreme Court of the U.S.A. appointed itself the guardian of property rights against restrictive state legislation. Oddly, due process guarantee was intially used with a great deal more effect to protect property than life or liberty. This development transformed a guarantee of procedural fairness for persons into a legal foundation from which the court monitored state economic regulations. Yet even as the court sounded the epitaph for the use of substantive due process to justify its supervision of economic regulation, it was developing a line of rulings under the equal protection gurantee which would lead it back to the consideration of the substance of state legislation. And matters of personal choice in family life have been the primary beneficiary of the 'new substantive due process' approach foreshadowed in the case of skinner v. Oklahoma(1942). Now, privacy became a value protected by the American Constitution. Prior to the advent of the notion of statutory entitlements, the question of 'what process is due' was not considered separately from the issue of what deprivations of personal interests by the govenment warrant due process protections. When statutory entitilements were recognized, however, the Court distinguished conceptually between the identification of the interests protected, and the assessment of the process due, and isolated different factors as crucial to the two inquiries. The Constitution is the source of the protection to be accorded when an interest in 'liberty' or 'property' is infringed. The notion of fundamental rights, privacy, dignity, and equal protection is the substantive constitutional values, and the notion of notice and hearing is the procedural constitutional values. The still dominant 'instrumental' approach to due process values procedural safe -guards less as expressions of the individual's dignity than as means to the minimization of factual error in the application of the relevant substantive rules. And, in the case of Mathews v.Eldridge(1976), the Court announced something akin to a general formula for the determination of what process is due. that is so-called interest-ablancing test. But even accepting that instrumental perspective for the moment, there are serious problems in striking the balance called for by decisions like Eldridge. The right not to be singled out for hurtful treatment by the state without a chance to talk back, and to be told why, will increasingly have to be identified as a substantive aspect of personal liberty.
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