자본시장법상 상장회사 특례 ― 현행 자본시장법상 상장회사 특례규정의 법 체계적 정합성을 중심으로 ―

정동욱 ( Jung Dong-uk ) 연세대학교 법학연구원 2023 연세법현논총 Vol.2 No.1

The current Capital Markets Act stipulates special articles of listed companies. Although it is natural to stipulate special articles for listed companies under the Commercial Act, the fact that the Capital Markets Act stipulated a special case for stock-listed corporations is a number of special provisions for listed companies under the Commercial Act applied to listed companies in the former Securities and Exchange Act. In the process of abolition of the Securities and Exchange Act and integration into the Capital Markets Act, some of the special provisions of the Securities and Exchange Act were transferred to the Capital Markets Act. In other words, among the special provisions for listed companies under the former Securities and Exchange Act, (1) governance matters are transferred to the Commercial Act, (2) financial management matters are transferred to the Capital Market Act, and special provisions for listed companies are divided into the Commercial Act and the Capital Market Act. Accordingly, listed companies are subject to three corporate legal regulations because they must be subject to special articles of listed companies under the Commercial Act and the Capital Markets Act in addition to the general provisions under the Commercial Act. Regarding this complex company normative system for listed companies, many problems have been raised since the former Securities and Exchange Act stipulated special articles for listed companies. This study aims to examine the relationship between the current Capital Markets Act's special articles for listed companies and the existing systems under the Capital Markets Act, such as the corporate disclosure system, and examine whether the retention of the special provisions in the Capital Markets Act is consistent with the legal system.

교통사고처리 특례법상 처벌특례의 인적 적용범위

이주원 한국형사판례연구회 2018 刑事判例硏究 Vol.26 No.-

Article 3(1) of the Act on Special Cases concerning the Settlement of Traffic Accidents (hereinafter ‘Traffic Special Act’) provides that “A driver of a vehicle who commits a crime provided for in Article 268 of the Criminal Act by reason of a traffic accident shall be punished by imprisonment without prison labor for not more than five years or by a fine not exceeding 20 million won”. This regulates Non-real Status Crime, and ‘traffic’ stipulated herein is interpreted as objective circumstances of conduct. Additionally, driver stipulated in the Traffic Special Act seems to be defined as ‘a person driving or who has driven.’ This stems from legislator’s preference for compressed expression in terms of legislative technical efficiency. It is understood to be the result of preference for ’driver’, which is a compressed expression, rather than the descriptive phrase such as “anyone who is under the circumstances of operating a vehicle or driving” (Article 3(1) of the Traffic Special Act, Article 151 of the Road Traffic Act is identical) or “anyone who is driving or have driven” (Article 3(1) & 4(1) of the Traffic Special Act). The background of the subject judgment corresponds to [Case 2] where a non-driver (different occupation), who is a person lacking status, collaborates with an ‘occupational’ driver, who is a person with status. In this case non-driver, who lacks the status as an ‘occupational’ driver, has a status for a different occupation, and consequently shall be punished according to the statutory penalty for Co-principals of Traffic Special Act along with the person with status as ‘occupational’ driver (Article 33 of the Criminal Act). The reason is that the person lacking status has its own unique occupational negligence derived from the different occupation apart from the occupational driver, being guilty as Co-Principals of Bodily Injury by Negligence of the Criminal Act - Article 3 of the Traffic Special Act supercede Article 268 of the Criminal Act based on the existence of special relation. As regards to the contravention of Article 3(1) of the Traffic Special Act, where ‘traffic’ situation, which is the condition of punishment, and 12 exception clauses, which are the conditions of prosecution, exist only in respect of occupational driver, the person lacking such status also is inevitably guilty for Co-Principals of Traffic Special Act. As an inevitable outcome, Article 3(2) of the Traffic Special Act, which is a special case of non-prosecution against the clearly expressed intention of the victim, also applies to the person lacking such status. However, since the Principle regarding the Indivisibility of Criminal Complaint does not apply to an offence which cannot be prosecuted against the clearly expressed intention of the victim, declaration of an injured party of his/her intention not to prosecute two or more Co-Principals does not take effect in respect to the other accomplices. Therefore, Article 4(1) of the Traffic Special Act, stipulating special cases of comprehensive insurance coverage, is interpreted to limit the scope of personal application to only ‘driver’ according to its literal reading. “Exceptions must be interpreted narrowly”(ingularia non sunt extendenda), which is a principle of limitation, must apply to the above. The subject judgment is evaluated to confirm the non-application of the special cases of insurance to non-driver, i.e. comprehensive insurance coverage not taking effect to non-driver. This point is at least considered to be in line with the established precedent that the principle of Subjective Indivisibility of Criminal Complaint shall not apply mutatis mutandis to offence which cannot be prosecuted against the clearly expressed intention of the victim. Nonetheless, it is extremely regrettable that the subject judgment only declares such purport without any detailed grounds.

임대주택 관계 법률이 임대주택법제의 불완전성에 미치는 영향 분석

이순배(Lee SunBae) 韓國土地公法學會 2016 土地公法硏究 Vol.73 No.2

임대주택법제는 많은 다른 관계 법률들과의 연계 형태로 법률내용을 확장·발전시켜왔다. 관계 법률들은 여러 부분에서 임대주택의 고유한 속성을 담아내는데 한계성을 들어내며 궁극적으로 임대주택법제를 불완전하게 만들었다. 불완전한 임대주택법제는 임대주택정책과 특히 변화하는 주거환경 속에서 일어나는 임차인과 임대인 간의 이해의 역학적 관계를 잘 풀어낼 수 없게 되자 ‘공공주택 특별법’과 ‘민간임대주택 특별법’’(이하 민간임대주택 특별법)에 그 자리를 내주고 폐기되어야 하는 운명에 처해 있다. 임대주택법의 일부 관계 법률들은 다시 ‘공공주택 특별법’과 ‘민간임대주택 특별법’에 적용되는 관계 법률들이 되었다는 점에서 임대주택법에 미치는 영향을 분석하는 것은 바로 새로 제·개정되는 그 2개의 특별법 정비적업에 많은 시사점을 줄 것으로 본다. 임대주택법 그리고 특별법을 불완전하게 할 수 있는 관계 법률들의 몇 가지 사항을 요약하면 다음과 같다.: 첫째, 임대주택에서는 임대사업자가 임명한 관리주체가 회계서류의 공개규정을 포괄적으로 적용하거나 남용할 경우 임차인들이 정보공개에 접근조차 하기 어렵다. 둘째, 임대주택법에서와 똑같은 규정으로 특별법에서도 관리규약을 임대사업자와 임차인 대표회의가 협의하여 제·개정하도록 규정하고 있다. 여기서 임대사업자는 합법적으로 임차인의 고유영역에 간여할 수 있다는 것이다. 셋째, 임대주택법에서는 관리비의 부과내역 등을 공동주택관리정보시스템에 공개하도록 규정하고 있다. 이 시스템은 투명성을 담보할 수 없음에도 불구하고 그대로 특별법으로 이관·적용될 것이다. 넷째, 시장·군수·구청장의 재량권에 속하는 임대사업자의 등록말소 규정은 임대주택법의 임의규정으로써 이미 임대주택법의 취지와 목적 자체를 무력화시켰음에도 불구하고 그대로 ‘민간임대주택 특별법’에 이관·적용될 것이다. 다섯째, ‘임대주택법’과 특별법에서는 임대사업자가 공적자금을 지원 받았을 경우 차임의 증액에 의한 영리추구행위는 임차인의 주거안정이라는 공공성과 항상 역의 상관관계에 있다는 것을 크게 고민하고 있지 않다. 여섯째, ‘부도공공건설임대주택에 대한 임대주택법’의 문제점을 거울삼아, 앞으로 특별법에서는 ‘주택도시기금법’을 개정하도록 하여 기금회수와 임차인 보호를 동시에 담보하는 방식으로 바뀌어야 할 것이다. 마지막으로, 임대주택을 건설할 수 있는 택지개발·공급에 한계성을 드러냈다. ‘임대주택법’의 관계 법률들이 임대주택법제를 불완전하게 만들었음에도 불구하고 그대로 특별법으로 이관·적용되는 문제는 앞으로 특별법을 정비해나가는 과정에서 반드시 개선되어야 할 것이다. Rental housing law system has expanded and developed its contents in connecting with other relevant Acts. The relevant Acts have limitations in some parts when including characteristics of rental housing, which made the rental housing law system incomplete. Such incomplete law system could not solve issues arising from the dynamic relationship between the interests of landlords and tenants. and thus it is set to be repealed leaving its place for the Special Act on Public Housing and the Special Act on Public Rental Housing.“ Some Acts relevant to the Rental Housing Act have become applicable to the Special Act on Public Housing and the Special Act on Public Rental Housing. Therefore the analysis of influence of those relevant Acts on the Rental Housing Act has many implications for improving the Special Acts newly established and amended. Several provisions of the rental housing related Acts which might make the Special Acts incomplete are as follows: First, it is impractical for tenants to access disclosed information where a management company appointed by a landlord applies the provisions governing the disclosure of accounting documents comprehensively or misuses those provisions. Secondly, the Special Acts contain the same provisions of the 'Rental Housing Act' which prescribe that the maintenance policies shall be established and amended in consultation with a landlord and the representatives of tenants. In such cases, a landlord can legitimately involve and interfere in the intrinsic rights of tenants. Thirdly, the Rental Housing Act prescribes that the breakdown, etc. of maintenance fees shall be disclosed on the management information system of apartment houses. Even though it is impractical for the provisions to ensure the transparency of such system, the same provisions will be included in the Special Acts and be applied to relevant cases. Fourth, even though the non-mandatory provisions regarding the cancellation of registration of landlords which are at the discretion of the head of a Si, Gun, or Gu, have nullified the rationale and purpose of the Rental Housing Act, without any amendments, such provisions will be included in the Special Act on Private Rental Housing and be applied to relevant cases. Fifth, the Rental Housing Act and the Special Acts do not expressly consider a negative correlation continuously existing between the profit-seeking activities of landlords in using the public funds financed to increase rents and the public responsibility in promoting housing stability for tenants. Sixth, taking a lesson from issues regarding public rental housing constructed by insolvent companies, in the future the Special Acts should stipulate the amendment of the Housing and Urban Fund Act to ensure both the recovery of loans paid back into the Fund and the protection of tenants. Even though Acts related to the Rental Housing Act have made the rental housing law system incomplete, some provisions of the those Acts will be moved and applied to the Special Acts without amendments. The issues arising from such incompleteness should be solved in the process of improving the Special Act.

상품형태모방행위에 관한 특별사법경찰의 운영방안 고찰

정태호,윤여강 한국정보법학회 2019 정보법학 Vol.23 No.3

특별사법경찰관리(이하 ‘특사경’이라 함)는 형사절차상 일반사법경찰관리(이하 ‘일반사경’이라 함)와 대비되는 것으로 형사사건의 특별한 영역에 대해 수사권한을 행사하고 종결시 동 사건을 검찰에 송치하는 역할을 담당하는 사법경찰을 말한다. 2019. 3. 19.부터 새롭게 개정된 사법경찰직무법”에 따르면, 기존에 인정되고 있었던 직무범위뿐만이 아니라, 특허법에 규정된 특허권 또는 전용실시권 침해에 관한 범죄, 부정경쟁방지법 제2조 제1호 자목에 규정된 상품형태 모방 등 부정경쟁행위에 관한 범죄, 같은 법 제18조 제1항 및 제2항에 규정된 영업비밀의 취득·사용·누설에 관한 범죄 및 디자인보호법에 규정된 디자인권 또는 전용실시권 침해에 관한 범죄도 그 직무범위에 추가되었다. 이 논문에서는 상품형태모방행위에 관한 특사경의 수사범위 확대에 관한 주요 쟁점사항과 효과적이고 바람직한 수사 방향 등에 관하여 이하와 같이 검토해 보았다. 특사경이 디자인보호법에 의해서 상품형태 모방을 방지하고자 할 때, 디자인의 유사판단이 디자인침해여부의 핵심적인 판단 사항이 되지만, 무엇이 유사한 디자인인지에 대한 판단은 어려운 점이 있다. 이에 침해범죄의 수사에 실제적 도움이 될 수 있는 디자인의 유사판단 매뉴얼을 정립하는 것이 필요해 보인다. 디자인권의 침해죄 판단에 있어서, 공지디자인의 존재에 의해 침해금지청구나 손해배상청구와 같은 민사소송에서 공지디자인의 존재에 의한 무효 여부를 주장하고 판단할 수 있으나, 이러한 권리남용의 주장 및 적용 여지가 없는 특사경에서의 침해죄에 관한 단속 및 조사 시에는 디자인권에 대한 무효 여부를 판단할 필요가 없을 것이고, 침해 여부에 대해서만 판단하도록 하여야 할 것이다. 현재로서는 간접침해도 디자인권 침해죄의 적용에 포함시키자는 견해가 상당하나, 이와 같은 개정이 없이는 디자인권의 침해에 간접침해를 적용하기 어렵다는 점을 유의해야 한다. 자유실시디자인인지 여부를 판단함에 있어, 공지되어 있는 디자인으로부터 쉽게 창작할 수 있는지 여부의 판단은 어려운 면이 있으므로, 공지된 디자인인지 여부를 중심으로 판단하여야 할 것이다. 특사경에서 상품형태모방행위를 판단할 때, 부정경쟁방지법 제2조 제1호 가목과 자목의 판단법리를 숙지하여 판단하여야 하고, 다목과 카목은 특사경의 업무범위에 해당되지 않음을 유의하여야 한다. 일반사경과 특사경의 업무범위가 중첩되게 됨으로써, 필연적으로 업무범위에 경합이 발생할 수 있다. 이 경우에 상품형태의 모방행위와 같이 전문적인 지식이 필요한 일에는 특사경에 우선적인 관할을 인정해주고, 특사경으로 이송을 통하여 해결하는 것이 효율적일 것으로 보인다. 상품형태 모방행위는 부정경쟁방지법과 상표법에 의해 보호가 주어질 경우에는 비친고죄이어서 권리자의 고소가 없어도 특허청 사법경찰관에 의한 수사결과에 따라 공소가 가능한 반면 특허법 및 디자인보호법에 의해서 보호가 주어지는 경우에는 권리자의 고소가 있어야 공소를 제기할 수 있다. 상품형태의 모방행위의 침해행위에 대해 적용 법규에 따라 공소제기 가능 여부가 달라질 수 있는 점이 있다. 이에 대한 혼란을 방지하기 위한 조치가 필요해 보인다. 종래 비친고죄에 대해서만 특사경의 직무범위로 보았던 것에서 한걸음 더 나아가 친고죄에 대해서도 특사경의 직... Special judicial police officer (hereinafter referred to as ‘Special Police’) which is a contrast to general judicial police officer (hereinafter referred to as ‘General Police’) is a government officer responsible for special cases of criminal case. According to the ‘Act on the persons performing the duties of judicial police officers and the scope of their duties’ revised from March 19, 2019, the scope of duties are enlarged to include the criminal act regarding unfair act such as copy of shape of goods regulated by the Article 2 clause 1 Ja-Mok of ‘Unfair competition prevention and trade secret protection act,’ and the criminal act regarding obtaining, using and disclosing of trade secrets regulated by the Article 18 clause 1 and 2 of the same act; criminal acts regarding an infringement of patent right or its exclusive license right; and criminal acts regarding an infringement of design right or its exclusive license rights in addition the former scope of duties. In this paper, it has been discussed the main issues regarding enlarged Special Police’s investigation scope to the act of copy of shape of goods and suggested the effective and desirable directions for investigation of the Special Police. When the Special Police treats copy of shape of goods according to the Design Protection Act, the judgment of similar design becomes a key judgment for the decision of design infringement, but it is difficult to judge the similarity between designs. Therefore, it seems necessary to establish a manual for decision of similarity between designs, which can be of practical helps in the investigation of infringement crimes. In judging the infringement of the design in civil litigation such as the request of refrain from the infringement or the request of compensation of infringement, it may be considered to decide whether the design right is invalid or not. But, in the cases of investigation and enforcement of criminal infringement penalty which do not require to consider right abuse issue, it do not consider invalidation pleading until the design right’s invalidation trial is finally ruled. Currently, there are many opinions that indirect infringement should be included in the application of design infringement penalty, but it should be noted that it is difficult to apply indirect infringement to design infringement penalty without law revision to include indirect infringement in Design Protection Act. In determining whether it is a freely usable design, it is difficult to determine whether it can be easily created from a known design, so it should be determined based on whether it is a known design or not. When judging the copying of shape of good by Special Police, it should be well understood the decision principle of infringements of Article 2 clause Ga-Mok and Ja-Mok, and Da-Mok of Unfair Competition Prevention Act and should be noted that Ka-Mok of the same law are not within the scope of duties of Special Police. As the scope of work between the General Police and Special Police is overlapped, it may inevitably cause contention in the scope of work. In this case, it would be more efficient to recognize the priority jurisdiction to Special Police to the special case such copy of shape of goods and transfer it to Special Police who has more professional knowledge. An act of copying of shape of goods according to the Trademark Act or the Unfair Competition Prevention Act is not an offence subject of complaint, so criminal suit could be filed without victim’s request of penalty. However, an act of copying of shape of goods according to the Patent Act and the Design Protection Act is an offence subject of complaint, so it need the victim’s request of penalty to proceed criminal suit. Thus, there is difference on the possibility of criminal suit according to applying law. It is needed to install measure to solve such problem. It is regarded to strength the prevention of copying of shape of goods by enl...

중소기업인력지원특별법의 기본구조와 개선방안

조종래 한국사회법학회 2015 社會法硏究 Vol.0 No.26

It has been 11 years since Korean government enacted “Special Act on Support for Human Resources of Small and Medium Enterprises(the Korean Special Act)” in order to address the problems of human resources of Small and Medium Enterprises(SMEs). Since there has been no evaluation of the Korean Special Act, it is necessary to check whether the Korean Special Act works well or not. If there is any problem for implementation of the Korean Special Act, revision of the Korean Special Act would be necessary. For the objective of this paper - presenting revision of the Korean Special Act, if any - I studied not only the Korean Special Ast but also the “Japanese Act on Support for Human Resources of Small and Medium Enterprises(the Japanese Act)”, of which the Korean Special Act follows the structures. I tried to get as many implications as possible for the revision through examining the Korean Special Act and studying the Japanese Act. First of all, I examined the Korean Special Act whether the clauses are implemented well. Most of the clauses are implemented well except some clauses. There are some ‘declarative’ clauses that are not implemented through any lower statutes. Then, I found that the Korean Special Act need to have the conference body to coordinate the other government departments. The Korean Special Act also need organization dedicated to focus on human resources problems. Through the studying of the Japanese Act, I draw two conclusions. One is that the Korean Special Act should be founded on demand side, not on supply side. The other is that local governments and SMEs are need to participate in the policy process. For the Korean Special Act being founded on demand side means that Korean government should replace the main idea that only the government could solve human resources with the idea that government had better guide SME's human resource management. SMEs and local governments are key players in human resources problems. SMEs have to plan their own human resources management. Local governments can accredit SME's plans to get any form of government assistance. In the short term, Korean government should solve the problem that lower statutes are not fully support the Korean Special Act. For the preparation of the lower statutes, the budget and the policy concern should be well arranged. In the long term, Korean government should revise the Korean Special Act to make inter-departmental conference and organization dedicated to human resources problems, to replace supply-side policy with demand-side policy, and to let SMEs and local governments participate in the policy process.

보험사기방지 특별법의 개정방향 : 보험사기 조사의 활성화 방안을 중심으로

양기진 법무부 2017 선진상사법률연구 Vol.- No.77

2016년에 제정・시행된 「보험사기방지 특별법」은 그 입법목적을“보험사기행위의 조사·방지·처벌에 관한 사항을 정함으로써 보험계약자, 피보험자, 그 밖의 이해관계인의 권익을 보호하고 보험업의 건전한 육성과 국민의 복리증진에 이바지”하겠다고 천명하고 있다. 그러나 동 특별법이 천명한 입법목적과 달리 동법이 원활한 보험사기 조사를 위한 장치를 두고 있다고 보기 어렵고 보험사기 조사과정에서 야기될 수 있는 보험계약자 등의 권리침해 우려에 대하여 적절한 방지조치를 두고 있다고도 하기 어렵다. 가장 큰 문제점은 사법(私法)적인 규율과 병행되지 않고 있고 주로 형사적 제재에 의존하고 있으나 사기죄에 적용가능한 법정형을 비교해 보면 별다른 차이를 발견할 수 없어 별도의 법으로 제정한 이유가 무엇인지 위하력마저 의문시된다. 두 번째로 현행 특별법시행령에서 정하는 사유에 해당할 경우 해당 사유가 적절한지에 관한 고민 없이 보험금 지급지체 등으로 인한 여러 불편을 보험계약자 등이 감수하여야 하는 것으로 정하고 있다고 해석할 여지가 있다. 시행령에서 정하는 사항대로라면 보험사기 조사를 이유로 보험회사의 편의대로 보험금 지급이 그에 상응하는 대가 없이 지체되거나 거절되는 것이 가능하여 보인다. 세 번째로 보험사기 방지전담기구를 설치함이 없이 기존의 건강보험 심사평가원에 대하여 입원적정성 심사를 의뢰하는 것은 최선의 진료를 받을 건강권, 의료선택권 등에서 바람직하지 아니하다. 보험사기가 보험계약자 등의 최대선의 원칙에 위배되는 것인 이상, 보험회사 역시 보험의 모든 단계에서 보험사기 방지를 위한 최대선의에 기한 책무를 진다. 따라서 보험회사에 대하여 동 책무를 이행하도록 유인책을 마련하고 위반하는 보험회사에는 대하여 보험계약자등에 대한 민사상 배상의무 및 적어도 행정상의 합당한 제재규정을 두었어야 하는데, 현행 특별법은 이러한 규정을 두고 있지 않다. 이 글은 주로 보험사기 조사의 문제에 주목하였다. 일선 경찰의 보험사기 처리가 여러 상황상 쉽지 않은 만큼, 보험전담 조사기구의 설치를 제안하고 이러한 전담조사기구가 신용정보원으로부터 관련 정보를 열람하여 일선 수사기관과 연계하여 보험사기에 관한 효과적인 대응을 하도록 할 필요가 있다는 제안을 하였다. 그러나 현행 특별법에서는 전담기구에 관한 내용을 사실상 담고 있지 않은바 향후 현행법을 대폭 개정할 필요가 있다. The Korean 「Special Act on Anti-Insurance Fraud」(hereinafter, the Special Act) enforced in 2016 aims to protect insurance policy holders, etc thereby regulating insurance fraud acts by the investigation, deterrence and criminal penalties. However, this Special Act doesn’t provide efficient methods of insurance fraud investigation and it also doesn’t have related devices enough to protect the rights of insurance policy holders, etc. The biggest drawback of this Special Act is that it doesn’t go along with civil remedies as it just depends on criminal penalties for insurance fraudsters. Moreover, when compared the sentences imposed on other general fraudsters, the sentences by this Special Act cannot intimidate potential fraudsters enough. Secondly, the current Presidential Decree of the Special Act give immunities to insurance companies about some cases prescribed in its Article 3 of the Decree. In these cases, the insurance policy holders, etc. should endure whatever damages and inconveniences they might encounter in favor of insurance companies. Thirdly, without installing an exclusive organization in charge of insurance frauds investigation in Korea, this Special Act chooses to solicit evaluation of hospitalization appropriateness to Korean Health Insurance Review & Assessment Service (hereinafter, HIRAS) of which original role is in pursuit of the Korean National Health Service’s financial secureness. Furthermore, this Special Act’s choice may harm the right of health and/or medical treatment held by each person. As long as all insurance fraud is subject to criticism because of insurance system’s intrinsic characteristic- utmost good faith of Insurance, not only policy holders, etc. but also insurance companies should have duties of satisfying their own good faith. Consequently, the Special Act also should have arranged to induce insurance companies to implement their own duties and to impose penalties both civil and (at least) administrative to companies (if any) violating their duties. However, the current Special Act has not prepared it at all. This paper analyses major problems about the current Special Act and it gives its attention to the issue of insurance investigation. In consideration of the Korean police’s difficulties of processing insurance fraud affairs, this paper suggests the installation of an exclusive organization in charge of insurance frauds investigation and also proposes this exclusive organization should have access rights for appropriate personal information from Korea Credit Information Services in search of efficient/fair outcome for its investigation under the limitation of obmutescence duty. Nevertheless, the current Special Act doesn’t require any installation of organization for insurance frauds investigation, so it needs to be extensively revised for this purpose.

항소심에서 한 특별대리인선임신청을 기각하는 결정에 대한 항고의 성질 - 대상결정 : 대법원 2014. 5. 7.자 2014마397 결정

문영화 한국민사소송법학회 2018 민사소송 Vol.22 No.1

In Ruling 2014Ma397 on May 7, 2014, the Supreme Court ruled that the case based on Article 64 of the Civil Act should be tried in accordance with the Non-Contentious Case Procedure Act and the appeal against the ruling of the original court is not a reappeal and transferred the case to Busan High Court, the competent court. The case was related to the application for the appointment of a special representative during the trial of the appeal and the applicant has received the decision which rejected the lawsuit in the court of first instance on the grounds that he was not a legitimate representative of the plaintiff, the other association than a juristic person. There are two types of applications for appointment of special agents. One is to apply in accordance with the Non-Contentious Case Procedure Act with respect to matters that conflict with the interests of the juristic person and the director under Article 64 of the Civil Act. The other is to apply for the appointment of a special representative in cases where the representatives of the juristic person are not able to exercise their right of representation due to legal obstacles on the basis of Articles 64 and 62 of the Civil Procedure Act. There are differences in the judgments on the application for the appointment of two special representatives, including the eligibility requirements, the applicant, the competent court, the grounds on the procedure, and the appeal method. Unlike legal acts in substantive law, the interpretation of litigation acts is subject to strict indication and appearance and can not be interpreted in conflict or contradictory with the displayed contents. However, if the obsessive obsession with the uniform and formal interpretation of the displayed phrase is excessive, it may lead to unfair consequences against the purposes of the parties concerned and the litigation economy. Therefore, It is necessary to interpret the litigation act objectively and reasonably by taking into consideration the intention of the party performing the act. Even if the applicant of the case of the Supreme Court’s ruling applied for the appointment of a special representative based on the Civil Act in the application form and did not properly specify the requirements for the appointment of a special representative under Articles 64 and 62 of the Civil Procedure Act, considering the circumstances in which the applicant needed to be appointed as a legitimate representative of the plaintiff in the appellate court proceedings, It seemed objectively and rational to interpret it as an application under Articles 64 and 62 of the Civil Procedure Act and there was no fault in the original court’s ruling that interpreted the application like that.

형가중적 형사특별법에 대한 법이론적 문제점

최호진 ( Ho Jin Choi ) 단국대학교 법학연구소 2006 법학논총 Vol.30 No.1

Korea has a great number of so-called Special criminal acts in addition to the Criminal Code. Among them, the Law on Punishment of Violent Acts and The Act on Aggravating Certain Crimes is one of the representative aggravation special criminal acts. But special criminal acts has a many problem in criminal jurisprudence. The Acts are legislated only considering the convenience of application. And The Acts overlapped with the provisions of the Criminal Law Act. This increase of the Special Criminal Acts is consequent on the confusion of application, decrease of norm power of the Criminal Law Act. The Problem of the Special criminal acts are overlapped with the provisions of the Criminal Law Act, ahabitual offender impose a severely heavy punishment, Overpenalization, Legislating Process. The conclusion of this article is that inflicting aggravated punishment to habitual criminals is not suitable from the viewpoint of Schuldprizip. and that a few articles of aggravation special criminal acts weave Criminal Law together or simply abolishing the latter.

소년법 제67조의 위헌성에 대한 검토- 집행유예를 선고받은 소년범을 자격에 관한 특례조항의 적용대상에서 제외할 수 있는가? -

박찬걸 한국소년정책학회 2018 少年保護硏究 Vol.31 No.1

Juvenile Act can be what's called special criminal act which is limited in personal coverage in that such an act includes juvenile offenders, juveniles who are against the law, and juveniles with a criminal bent among juveniles under 19 years old. Hence, criminal cases of juveniles shall be applied to the example of general criminal cases without special provisions of Juvenile Act. However, special provisions stipulated in clause of Article 48 of Juvenile Act take special measures against criminal procedures, setting it as the main aim to help juveniles grow healthy. A general and broad review about special provisions of Juvenile Act has often been discussed in the academic circles, up to now. But as Article 67 of Juvenile Act related to ‘the Legislative Coverage of Criteria’ which has rarely been the focus of discussion relatively compared with any other special clauses is recently proclaimed as the decision incompatible with the constitution, it is judged that the field for the discussion about it would be provided. On January 25 2018, the Consitutional Court ruled that Article 67 was incompatible with the Constitution and ordered that the legislative clause would be applied continually until December 31 2018 when such a clause would be revised. The legislative body took the prompt measures against this immediately after the Consitutional Court made such a decision. Some legislative revision bills on Juvenile Act issued by Representative Haek Hye-ryeon on January 26 2018 were in response to it. It can be said that this was proposed with the main aim to complement the defect of the current laws incurred by the Consitutional Court's incompatible decision, by amending the pertained regulations so that the special case in Article 67 of Juvenile Act could be applied into the declaration of a stay of execution just like the sentence of imprisonment. In this regard, the study will analyze the provisions and specific issues in Article 67 of Juvenile Act and conduct a comparison with the declaration of a stay of execution and the sentence of imprisonment in consideration of the legal and factual attributes of the declaration of a stay of execution to review the validity of the decision incompatible with the Consitutional Court as to Article 67 of Juvenile Act and some legislative revision bills on it. .

재난ㆍ테러 등 각종 위기상황에 대비한 시설물의 종합적 안전관리를 위한 법제정비방안

오준근(Oh Jun-Gen) 한국토지공법학회 2007 土地公法硏究 Vol.35 No.-

  This study aims to examine legal theories and intrinsic contents of the safety control of public structures in terms of administrative law. At present, our nation has the Special Act on the Safety Control of Public Structures and the Framework Act on the Management of Disasters and Safety enacted to protect the safety of public structures from collapse.<BR>  The Special Act on the Safety Control of Public Structures is a special Act enacted with the collapse of the Seongsu Bridge and Sampoong Department Store in 1994. The Act prescribes the regular safety diagnosis and control of large-scale public structures shall be conducted under the control of the Ministry of Construction and Transportation.<BR>  Similarly, the Framework Act on the Management of Disasters and Safety was enacted with the Daegu subway disaster in 2003. However, it is a law enacted in response to possible "disasters" at the state level. Thus, it still is a pending problem to devise effective measures for protecting public structures not subject to any regular safety diagnosis and control under ordinary circumstances other than disasters. And so, public structures of a certain size not covered by such special Acts are in danger of being in a dead area of safety management.<BR>  This problem arises from mutual overlapping, contradiction and conflict between the Acts governing the safety control of public structures, which are enacted by reflecting the individual interests of ministries and agencies.<BR>  The public structures covered by the Special Act on the Safety Control of Public Structures are confined to first-class and second-class public structures. The safety of such public structures is secured by means of regular safety control under exclusive charge of the Korea Infrastructure Safety and Technology Corporation. The public structures subject to the Framework Act on the Management of Disasters and Safety are those excluded from application of the Special Act on the Safety Control of Public Structures. Such structures are excluded from the "regular safety control". In addition, a specialized institution in exclusive charge of disasters and safety control is not yet installed.<BR>  The two Acts mentioned above must serve as a basis for the special safety control of public structures necessary to cope with emergencies. Also, such Acts should have been designed and enforced in such a way as to ensure the prevention of various natural or artificial disasters and emergencies such as typhoons, terrors, etc. at the level of state emergency response network. However, many problems arose from contradictions and conflicts between the said Acts.<BR>  To solve such problems, this paper presents and analyzes the following three proposals: <BR>  ① Proposal 1: To strengthen networks based on the maintenance of the Acts concerned;<BR>  ② Proposal 2: To combine the Acts concerned and transfer their functions to a newly enacted Act;<BR>  ③ Proposal 3 (compromise proposal): To divide the Special Act on the Safety Control of Public Structures into both the Act on the Safety Control of<BR>  Construction Work Structures and the Korea Infrastructure Safety and Technology Corporation Act. As a result of such analysis, this paper presents Proposal 3 as an applicable actual alternative.<BR>  This study is only focused on the resolution of contradictions and conflicts between the Acts governing the safety control of public structures. I expect this study will encourage further discussions over the safety control of public structures