한국의 법문화 변화에서 법원과 법률가의 역할

정영화(Jung, Young Hoa) 강원대학교 비교법학연구소 2014 江原法學 Vol.42 No.-

한국의 법문화는 법전문가의 법지식과 일반인의 그것이 큰 괴리를 보이고 있다. 법률가들에게는 법치주의를 구현하는 의미의 ‘법대로’란 말에 대하여 일반인들은 강한 거부감을 표출하고 있다. 실제로 1990년대 후반부터 민사사건이 폭증하면서 소송 범람을 우려하는 목소리가 높았다. 이러한 배경 속에서 법원은 민사조정법에 의해서 일부의 민사소송사건을 조정제도로 해결하고자 노력하고 있다. 대체분쟁해결(ADR)이 활성화되지 아니한 상태에서 유사 법적 분쟁을 법원 안으로 통합하는 노력에는 한계가 있다. 법원은 현재 다양한 외부기관을 통하여 민사조정으로 해결하고 있지만, 시민의 법문화가 개선되지 않고 법원의 노력만으로는 한계에 놓여 있다. 적어도 민사본안 사건 중에서 연 평균 70% 이상을 차지하고 있는 소액심판사건을 일괄적으로 강제조정을 시행할 수 있다면, 법원의 소송부담은 크게 덜 수 있다. 또 로스쿨 시행이후 변호사 숫자의 증대로 변호사 의 업무범위를 확대하여 과열 경쟁을 억제하도록 민사조정에 변호사의 참여를 촉진해야 한다. 이를 위해서는 변호사 등의 조정참여에 따른 보수체계의 개선이 시급하고, 동시에 민사조정법의 개정 또는 ‘ADR 기본법’ 제정으로 조정전치주의를 도입하여야 한다. Korean legal culture has been showed the deep gap of between legal experts and layman. popular have expressed a strong objection “a law way” which refers to resort to trial of court that lawyers make use of means to realize the constitutionalism. In particular, courts have expressed highly concerns about overflow of trial because of inflation of small claims cases since the late 1990s. Courts have made effort to resolve a part of civil disputes through judicial dispute resolution in according to “civil mediation act” in these background. Under the condition of not vitalizing civil ADR (Alternative Dispute Resolution), there are a limits of judicial convergency of quasi-legal disputes by court’s making efforts. court-annexed JDR has tried to make efforts for resolution of legal disputes with including diverse outside of court, there is a certain limit in the effort of court itself without improving the external legal culture of layman. if the small claims cases, which have occupied with average more seventy percent among civil merits cases in annual, will be enacted in a lump sum by the principle of prepositive mediation, courts and judges can lessen a load of judicial litigations as it is. a competitive legal-service market, which lawyers have gradually increased since introducing the law school system, should expand the their work scope that may well facilitate for them to participate in court-annexed mediation. For these reasons, compensation system of lawyers has to improve in according to their participation of JDR, and to introduce the principle of prepositive mediation through the amendment of ‘the Civil Mediation Act’ or enactment of ‘ADR Basic Act’.

판례연구 : 헌법소송에서 입법재량권에 대한 위헌심사 -2010. 2. 25. 2007헌마956-변리사법 제3조 제1항 제2호등의 위헌성-

정영화 ( Young Hoa Jung ) 홍익대학교 법학연구소 2013 홍익법학 Vol.14 No.3

The Constitutional Court made decision on the case of 2007 hunma 956 as constitutional in 25th Feb. 2010, which the patent attorney act should authorize attorney with title of patent attorney by the article 3 section 1, as well as the legal opinion of the court ruled to a broad legislative discretion as not violating the equal right. As though the Constitutional Court could not put on material and objective standards of the legislative discretion and legislative facts in spite of a rapid increasing those kind of cases through the constitutional litigations, it can result with violation of human rights by itself. This paper is explored the Japanese and American cases and theory on both legislative facts and legislative discretion, and then I reviewed the detail judging criteria as both legislative facts and legislative discretion on adjudication on the constitutionality of the patent attorney act.

헌법개정에 있어서 의원내각제와 대통령제에 관한 제도분석

정영화 ( Young Hoa Jung ) 홍익대학교 법학연구소 2013 홍익법학 Vol.14 No.2

Constitutions are themselves institutions that result from a series of collective decision-making processes and motivate other forms of collective actions. The primary objectives of constitutions is to establish the legitimate foundations of governmental powers, to allocate those powers among the specific organs of government that the constitution creates or recognizes, and to provide a road map for the development of positive law and policy, including instructions for constitutional change. I am concerned with some issues in this paper as following: First, I am going to review how to run the existing presidential institution as an imperial presidency, and at the same time, representatives raise a problem of agency costs by elected president and parliament whose preferences or self interests potentially diverge from those of their constituencies. The Choice in many countries between presidential system and parliamentary system can be relied upon by the check and balance of powers and a consensual democracy and a majority democracy. Second, I will deal explicitly with their reason and side-effects how the divided government did emerged under existed presidential system which has been resulted from the presidential election of a zero-sum game. The divided government on the basis of the presidential government of executive supremacy has been politically quarreled by the ins and outs. We can take into consideration of holding the direct democracy as a plebiscite and people`s initiatives which is going to decrease an agency costs of both president and parliament and to prevent the political collisions between the ins and the outs under the divided government. Third, we can review how the constitution of parliamentary government can apply the rule of check and balance between the ins and the outs. In particular, that parliamentary system may guarantee the right to dissolve of the House of Representatives which can reconcile from their collisions between the ins and the outs, and I am going to examine the more effective selection criteria between presidential system and parliamentary system. In short, we have to review some issues as follows: why we have to change the presidential government through the Constitution`s Amendment soon? I do raise both the genuine presidency and parliamentary government as the perspectives of Constitution`s amendment, and refer to the public choice`s implication of economic analysis of the representative democracy in Korean constitutional political history.

헌법에 있어서 경제민주주의에 대한 고찰

정영화 ( Young Hoa Jung ) 홍익대학교 법학연구소 2012 홍익법학 Vol.13 No.2

The Economic Democracy of Constitution should divide the policy of economic regulation and that of social regulation. The regulation policy must confirm the right of human dignity and the principle of rule of law, and the equal principle and the principle of social state due to the Economic Democracy, If there are the mono-oligopoly market and market failure which restrict the fair and free competition, State can intervene market economy, State should not directly intermeddle market process such as both production and consumption by economic subjects, but we can correct those unfair market performance and misallocation of resource. Under these conditions, Social regulations should be reviewed concerned with maintenance of human life and health and the protection of the aged and disabled by the screening criterion of equity. For example, the priority for their life and security and health of social minorities such as juvenile and old age and disabled will confirm to the Economic Democracy as resource allocation due to fairness rule. Above all, if the enforcement of the Economic Democracy, it may not be conceded the freedom of broad legislative discretion on regulations of economic freedom by the basis of presumption of constitutionality. To the contrary, the passive regulation of public order may be applied to the rigid criterion of reasonableness, and the positive regulation of public welfare should be tested by both the rule of reasonableness and principle of clearness. In final, both economic regulation and social regulation can be applied by same tests of legal criterion. The Constitutionality of regulations can be judged from the nature and contents and range of those freedoms which will be kept from by the goal and need for regulation through weighing value in rigid.

최근 노동법 및 노동제도 변화와 헌법사실의 관계

정영화 ( Young Hoa Jung ) 홍익대학교 법학연구소 2012 홍익법학 Vol.13 No.1

Two basic issues are presented by the question of how constitutional facts are to be proven. The first concerns what sort of proof is allowable, or, to use an evidentiary term, admissible, to demonstrate that the fact is so or is not so. However terminology from evidence doctrine is misleading, since so much proof of constitutional facts comes to the knowledge of courts outside of the trial process in which rules of evidence preside. The second basic issue involves what decision-rules courts should use to resolve conflicting evidence. Again decision-rules, such as burdens of production and standards of proof, are readily found in ordinary trial procedure, but the highly varied ways in which constitutional facts are employed by courts makes the analogy inexact. Constitutional facts present novel challenges to the traditional procedural framework because they sometimes fit it, sometimes do not and sometimes fit it and do not fit it at the same time. In many cases, the same constitutional fact will be the subject of proof admitted at trial and proof introduced in amicus brief. Although allocating burdens of proof is inherent to all fact-finding, the Court has viewed facts categorically in its constitutional analysis, as either true or not true, a perspective wholly at odds with modern views of empiricism. The changes of labor legislature gave some essential implications of constitutional facts in recent. First, as those legislative ends of the limits of labor union`s official compensation by employer will guarantee the independence and autonomy of labor unions, the uncertainty of their financial base has inherently constitutional problems that breach the collective right to assembly between employer and labor. Second, as the enacting of multiple labor union leads to formate a favorite condition for employer to make decision of collective bargaining between labor and employer, it takes undesirable effects on the right of collective assembly of labor union. Third, legal enforcement against the discrimination of temporary labor has shifted from irregular labor to regular labor or increased the indirect employees. These legislative facts of temporary labor can make use of party`s evidence data as constitutional facts in the judicial process. Forth, Supreme Court ruled consistently that the disputing actions are charged with a crime of obstructing business unless it is exempt from illegality, on the ground that workers` collective refusal to work hampering the normal operation of business, thereby it was turned out labor legislative facts can be applied to constitutional fact of collective relationship between workers and employers in judicial procedure. In consequence, whether legislative facts can be interpreted as constitutional doctrinal or viewable facts not by judge, Court has replaced a constitutional provision on three labor basic rights of interpretation of labor law. Therefore labor lines and business circle have never been carried out cooperative and productive relationship between workers and employers, and the rate of union formation has been decreased so far. A zero-sum labor disputing litigations in favor of employer has to improve the judicial procedure and evidence rule on basis of constitutional facts.

미국 헌법상 정교분리의 판례법과 시사점 -연방헌법(1700s~2018)의 정교분리를 중심으로-

정영화 ( Jung Young Hoa ) 홍익대학교 법학연구소 2019 홍익법학 Vol.20 No.2

In a current United States America, The separation of church and state had particular appeal in an age of specialization during the industrialization of 18 century so far. In historical perspective, the American religion-state regime is generally considered as strictly separationist, with a “wall of separation” keeping religion and state apart. This article traces a recent move away from this toward a “modest establishment,” in which religion and state cooperate in the fulfillment of important social functions. The mechanism for bringing about this change has been an increasingly conservative Supreme Court that has partially incorporated the agenda of the Christian Right. However, the attack on separationism was differently successful in different domains. The greatest success has been achieved with respect to access to public resources, where the wall of separation has been “breached.” With respect to religious symbols in the public sphere, I argue, the wall has merely been “battered.” This is because the state can align itself with religion only indirectly, by secularizing it as culture and tradition. These developments are contrasted with religion-state relations, which have moved in the opposite direction, from vestigial establishment to stronger forms of separation. I review how ‘lemon standard’ has been changed by the Supreme Court of the United States. In 2014, the Supreme Court held in Town of Greece v. Galloway that it is an elemental First Amendment principle that government may not coerce its citizens to support or participate in any religion or its exercise.

국가의 공공부채에 대한 헌법경제학 -재정준칙의 법제화를 중심으로-

정영화 ( Young Hoa Jung ) 세계헌법학회 한국학회 2014 세계헌법연구(世界憲法硏究) Vol.20 No.3

Korean budget deficit has been an adverse condition because social demography of population aging and low fertility leads to increase expenditure of medicare and welfare, structural low-growth. For example, gross expenditure was increased averaging 6.7 percent a year from 237.1 trillion won in 2007 to 349 trillion won in 2013, however welfare expenditure was harshly increased averaging 6.7 percent per year from 61.4 trillion won to 99.4 trillion won same period. Besides, government debt(D1) was increased 503.1 trillion won as of late July 2014 due to drop in tax revenue and spending of welfare expenditure through low-growth. This paper includes the significance of constitutional economy on government debts such as current condition of ratio of public debt and financial deficit to GDP, types and legal basis of public debts(Ⅱ). It examines the meaning, types and elements of fiscal rules in addition to history of public debt(Ⅲ). In final, It checks the those legal issues of constitution and financial law with regard to codification of fiscal rules in order to decrease ratio of financial deficit and government debt to GDP as pivotal point of maintenance for fiscal sustainability(Ⅳ). We shall codify a new fiscal rules which have a legal binding force in expenditure rule and debt rule in like of EU, USA, UK, and Germany’s case in suitable for our financial condition.

인터넷상의 표현의 자유에 대한 규제

정영화(Young Hoa Jung) 세계헌법학회 한국학회 2001 세계헌법연구(世界憲法硏究) Vol.6 No.-

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≪학술대회: 참여민주주의와 국가경쟁력≫ : 의회개혁과 국가경쟁력 -양원제 도입의 논거로서 13대-17 총선거의 실증분석-

정영화 ( Young Hoa Jung ) 세계헌법학회 한국학회 2005 세계헌법연구(世界憲法硏究) Vol.11 No.1

헌법상 예산제도의 개선방안 -공공선택론에 의한 분석-

정영화 ( Young Hoa Jung ) 세계헌법학회 한국학회 2004 세계헌법연구(世界憲法硏究) Vol.10 No.-