법의 경제적 분석에 관한 몇 가지 오해에 관한 고찰 허서욱

다운로드

(기관인증 필요)

키워드 보기

초록보기

This article is dedicated to a survey of comparative law in Roman law. As a whole, the general attitude of the Roman jurists to foreign laws is to be characterized as Rome-centered. They encountered their Roman legal problems with their own Roman legal instruments. When they had to deal with problems arising from various foreign contacts, they normally reached at Romanized solutions by interpreting foreign legal institutions and concepts in the Roman way as the practice of imperial rescripts shows. Only extremely few cases are known where they allowed priority in application to foreign laws over the Roman law. Sometimes they proceeded against foreign laws in view of the Roman boni mores or in respect of good policy. They, however, never failed to respond to the challenges foreign laws engendered. Even though the unified Roman world always gave precedence to the Roman law of urbs Roma, the Roman government and jurists never levelled off entirely the local customs and traditional laws. Among the known Roman jurists, Gaius, the author of the Institutes, was probably the exception who made use of foreign legal materials in a comparative perspective to help law students understand their own law more precisely. But due to their great work of ius gentium, i.e. a body of law encompassing substantial legal norms common to all the civilized nations, their achievements in comparative law were destined to be negligible. They also had no need of developing a system of private international law. As an appendix I have made a classified list of Greek citations in the Digest and the Institutes of Justinian.

다운로드

(기관인증 필요)

키워드 보기

초록보기

In Korea, for a long time military service has been called "sacred duty" and military has been a kind of "untouchable." It is true that many Koreans thought human rights of military persons might be disregarded for building strong army. However, democratization of Korean society during last two decades has brought new change for general attitude toward human rights in military. Violation of human rights of military persons is not accepted any more. Military can not draw people`s support without respect for human rights of military persons. In this article human rights situation in Korean military is reviewed by the standard of the International Covenant of Civil and Political Rights, which the Republic of Korea already ratified. Military judicial system, military disciplinary punishment, conscious objection, right to association, right to petition, etc are mainly analyzed. General conclusion is that more improvements of human rights situation in military are required to satisfy the international standard.

다운로드

(기관인증 필요)

키워드 보기

초록보기

This paper reviews Korean thin capitalization rules in the context of comparative and international law, and further analyzes the relation between thin capitalization rules and tax treaties. The thesis of the paper is that the thin cap rules do conflict the language and structure of typical tax treaties which adopted the language of the OECD model treaty, although the OECD Model Commentary does not admit the conflict. First, the arm`s length principle as it applied to the thin cap situation would require the lender to demand more interest from the debtor, and would reduce the taxable income of the debtor. The OECD argument that an unrelated party would not lend money at all is inconsistent with the arm`s length principle, which, for example, does not deny a related party license and instead merely adjusts the royalty rate. Second, the thin cap rules are inconsistent with the treaty obligation of non-discrimination between foreign and domestic lenders, because the very essence of the rules consists of discriminatory disallowance of interests paid to foreign lenders. The Commentary justifies the rules again by reference to the arm`s length principle, which, however, does not solve the problem as discussed above. Third, the rules are also inconsistent with the obligation of non-discrimination of foreign-invested companies vis-a-vis domestic-held companies. The Commentary argues that this obligation is trumped by the aforementioned non-discrimination, but this argument is wrong in that the two obligations have different coverages. The paper ends with the observation that the thin cap rules were overtly and covertly overriding tax treaties for about three decades, but are now being swept away by freedom of establishment under EU law.

다운로드

(기관인증 필요)

키워드 보기

초록보기

In this article, I analyze legal aspects of traditional Korean Society by publications and spread of legal books. In Chosun Dynasty (1392∼1910), Codes and legal books were published and spreaded continuously from Taemyunglyulchikhae [大明律直解] (1395) to the Penal Code of the Imperial Korea [刑法大全] (1905). These facts were possible owing to social atmosphere. So Chosun Society is estimated as the society of ``rule of law``. In the former Chosun Dynasty, features of publications and spread of legal books are as follows: compilations of fundamental codes as like Kyungkuktaechun [經國大典], importations and uses of Chinese legal books as like Taemyunglyul and Muwonrok [無寃錄], publishings of private legal books as like Sasongyuchwi [詞訟類聚]. In the latter Chosun Dynasty, they are as follows: compilations of total codes in which the former codes and regulations were collected as like Soktaechun [續大典], compilations of legal cases and precedents as like Chukwanchi [秋官志], in King Kochong [高宗], diverse compilations of laws and cases as like Taechunhoetong [大典會通] and Yukchunchorye [六典條例] to restore the governmental systems. To know spread of legal books, I survey Gosachwalyo [故事撮要] and the book-lists of Kyuchangkag [奎章閣]. As the results, totally it was very low, but the importance of legal books was higher in the former Chosun Dynasty than the latter relatively. In the latter, Kings were emphasized in codifications, and Yuneum [綸音] which was Kings` decrees was promulgated in a large. Especially, the King Yung-Chungcho [英正祖]`s those were over half in the total period. Finally, I think principle of ``rule of law`` was important in the former Chosun Society, but its importance was lower in the latter. I decide the phenomena as ``return from system to personality``. And I hope to criticize and debate my theme.

다운로드

(기관인증 필요)

키워드 보기

초록보기

In 2005, the Korean Ministry of National Defense ("plaintiff") filed a lawsuit against five major domestic refineries ("defendants"), with the Seoul Central District Court claiming that they suffered damages in amount to Korean Won 165,967,357,805 due to the collusive bid riggings performed by the defendants. On January 23, 2007, the court rendered a judgment holding that the defendants were liable for the collusive bid riggings as claimed by the plaintiff and responsible for the damage of Korean Won 80,997,385,398. Calculating the damage amount, the court mainly relied on the econometric method. Depending upon Joseph Raz` "exclusive legal positivism," this essay explores whether Korean legal system recognizes the economic reasoning that the court relies on in calculating the damage amount. Main point of this essay`s conclusion is two-pronged. First, the court decision to rely on econometric method in calculating damage is valid in Korean legal system. Second, the court decision to normatively control various aspects of expert witness` damage-calculating practice is also valid even though expert witness` practice is so professional that courts seem to be unable to handle.

다운로드

(기관인증 필요)

키워드 보기

초록보기

It has been quite long since the academic trend of economic analysis of law was introduced into Korea, and quite many scholars are interested in that field nowadays. However, the outcome is not so satisfactory yet. More and more cases come to courts recently which need economic analysis, but, in Korean courts, most of them are settled without economic analysis. There can be found many reasons of this state of things. In my thought, one of those reasons stems from several misunderstandings of economic analysis of law. Followings are those several misunderstandings. (1) The Law and the Economics do not share the academic research subjects, so the two academics cannot be combined. (2) The economic analysis of law does not consider the value of ``justice`` and ``human rights`` which are the main objects in legal research. (3) Economic analysis evaluates every value in our society in terms of monetary value, so it is not appropriate to be taken as legal analytic tool. (4) The economic analysis of law does not fully consider the value of equity in law. (5) The economic analysis of law can be done only through unintelligible mathematics and diagrams. (6) The economic analysis of law can be applied only in the field of private law, not in the field of public law. (7) The economic analysis of law uses many strict and impractical assumptions, so its applicability to real legal problem is severely restricted. (8) The rational choice theory in economics cannot fully explain the real persons` acts in reality. In this paper, I reviewed the contents of those misunderstandings and explained the groundlessness of such understandings. I hope that this paper can be a small step in the road to active movement of interdisciplinary academic research in law and economics in Korea.

다운로드

(기관인증 필요)

키워드 보기

초록보기

"The Urban and Living Environment Improvement Act" (hereinafter called "Urban Improvement Act"), which was originally enacted in the course of consolidating reconstruction and redevelopment to prevent domestic real estate market from any overheat induced by reconstruction, stipulates builder as constructor and also provides that the constructor should be selected after project authorization. By way of follow-up revisions, the Urban Improvement Act has added criminal penalty provision related to the selection of constructor (on Mar. 18, 2005), and Framework Act on Construction Industry has also established reference provisions on criminal penalties and business suspension (Article 38-2, 95-2 and 83: on May 26, 2005). These provisions are also applicable partially to redevelopment and urban environmental Improvement project, but are originally established for the main purpose of reconstruction. However, restrictive provisions related to selection of constructor often fail to come in harmony with provisions related to joint developer of redevelopment, and even excessively overlook the real mechanisms of market. That is why there are many evasions or even violations of the restrictive provisions on the selection of constructor. Although various disadvantageous sanctions or criminal penalties should be applied to those cases, it is necessary to give a clear-cut explanation on possible applications of law and relationships between Urban Improvement Act and Framework Act on Construction Industry. In Urban Improvement Act, restrictive provision on selection of constructor is originally prepared as a part of banning constructor from development. But in structural aspect, it is applied restrictively; the provision is incomplete in a sense that it is not applicable excepting association, and regulates only selecting time. The Urban Improvement Act allows introduction of professional improvement project manager to replace development of constructor, and also allows associations to select professional improvement project manager. In addition this Act deems association staffs and professional Improvement project manager as the public official, in terms of penalties including bribery penalty (Article 84). However, the scope of the public official fiction should be limited to professional Improvement project manager who closes a contract with association established and then performs certain works specified in Urban Improvement Act. Contrary to Urban Improvement Act that restricts selecting time, the Framework Act on Construction Industry prohibits selection of constructor by unlawful means. Moreover, in order to regulate any violation of provisions, in the Framework Act on Construction Industry, there are extra provisions to issue business suspension or criminal penalties. In particular, provision on criminal penalties provides orderer and contractor as actual offender expressly. According to the Act, the "Orderer" refers to the party entering into construction work contract with building contractor, and the "Contractor" refers to the party contracted to perform construction works by Orderer (Article 2-7, 10). The constructor may not be construed as the Contractor until it is selected as constructor, so the conclusion of contract is a precondition for application of said Act.

다운로드

(기관인증 필요)

키워드 보기

초록보기

(1) 독점규제법 제29조 제1항이 금지하고 있는 최저RPM은 브랜드 내 경쟁제한과 무관하게 거래관계에서 판매업자의 가격결정의 자유를 제약하는 행위를 의미하고, 따라서 최저RPM을 강제하는 행위에 대해서는 합리성의 원칙에 따른 이익형량의 여지가 없는 것으로 해석된다. 학설, 공정위의 심결 및 판례 또한 이와 태도를 같이 하고 있다. 해석론으로는 최고RPM에 대해서도 경쟁촉진이나 효율성증대와 결부된 합리성의 원칙을 도입한 것으로 보기 어려우며, 강제 내지 구속 조건을 통한 RPM의 실효성 확보수단이 인정되고 이를 정당화할 사유가 제조업자에 의해서 입증되지 않는 한 원칙적으로 위법한 것이 된다. (2) 이와 같은 RPM에 대한 독점규제법의 태도를 당연위법으로 해석하기는 곤란한데, 그 이유는 법 제2조 6호가 RPM의 개념을 정의하면서 이미 ``강제성``이나 ``구속조건``을 규정함으로써 판매업자의 자율적 가격결정권 침해라는 규범적 무가치판단을 포함시키고 있기 때문이다. 입법론적으로 최저RPM에 대해서도 합리성의 원칙으로 전환하자는 주장은 RPM의 개념 및 규제근거를 강제성보다는 브랜드 내 경쟁제한으로 상정하는 경우에 가능한데, 브랜드 내 경쟁이 독점규제법상 그 자체로 보호가치 있는 독자적인 경쟁형태인지는 의문이다. (3) 강제 내지 구속성과 무관하게 당사자간의 합의에 의한 RPM을 금지할 수 있는 근거는 바로 경쟁제한성이며, 이러한 경우란 시장지배적 지위에 있는 제조업자가 다수의 판매업자와 RPM약정을 하는 때에 상정할 수 있다. 이처럼 RPM약정을 경쟁보호의 관점에서 파악할 경우에는 동종 또는 유사상품의 존재, 경쟁 제조업자의 존부와 시장점유율, RPM의 동기와 소비자후생에 미치는 긍정적 효과, 비가격경쟁과의 관계 등을 종합적으로 고려하여 남용 여부를 판단하여야 할 것이다.

다운로드

(기관인증 필요)

키워드 보기

초록보기

In April 21, 2004, after 20-year-long negotiations and debates, the Council of the European Union passed the 13th Directive on Takeover Bid (the “Directive”). Aiming to encourage corporate restructuring and takeover activities, the Directive adopted several controversial devices associated with takeover bid: mandatory bid; board neutrality; breakthrough rule (“BTR”); optionality right of Member State; reciprocity. This paper analyses the effects of three major provisions of the Directive. First of all, the mandatory bid rule requires acquirer to offer minority shareholders of the target company the same price as has been offered to controlling share-holders, thereby protecting minorities. This rule has two-fold chilling effect: it would effectively prevent value-decreasing acquisition, discouraging incompetent purchaser from buying the target; it might also prevent value-increasing acquisition, imposing additional burden even on competent purchaser. Secondly, the BTR allows the offeror to ``break through`` any restrictions on voting and/or transfer over target shares, provided that she successfully obtains 75% cash-flow rights in the tender offer. BTR is expected to reduce the agency cost from separation of cash-flow rights and voting rights. In terms of hostile takeover activities, BTR has opposite effect to mandatory bid rule: BTR is supposed to boost hostile takeover, while mandatory bid rule has chilling effect. This paper shows how these two contradicting aspects would work in the future. According to the economic analysis, the BTR might erode the protection for minorities by mandatory bid rule. Thirdly, the Directive gives Member State the option not to adopt BTR and/or board neutrality rule. While the optionality provision, reflecting the compromise between pro-hostile takeover Member States and anti-takeover Members States, gives each State flexibility, it might threaten the integrity of the new Directive. The Directive and the legislative history can give some insights to Korea that is under corporate law reform. While it seems not desirable to directly introduce those new devices in the Directive, the ideas behind the Directive, including one-share-one-vote theorem and level playing field concept for M&A, should be considered when we revise current Korean Commercial Code.

다운로드

(기관인증 필요)

키워드 보기

초록보기

Corporal punishment in schools is intentional infliction of physical force upon a student in order to correct his/her behavior. It has been a hot issue in Korea whether to allow corporal punishment in schools. Scholars are divided into pros and cons about this controversial issue. The Korean Supreme Court has maintained that it may be justifiable if it is properly used as an ultima ratio for the educational purpose of correcting the student`s behavior. The new Elementary and Secondary Education Act and its Enforcement Ordinance provide articles, which allow "guidances inflicting bodily pains" if they are "inevitable for the purpose of education." The Supreme Court`s Decision as of June 10, 2004 is a leading decision, which provides the requirements of justifiable corporal punishment in schools following the Act and its Ordinance. The requirements are more specifically defined and stricter than the previous ones. However, the present article argues that, based on the constitutional interpretation of the Article 31(7) of the Enforcement Ordinance, ``direct corporal punishment``, direct infliction of physical pain on students by using a teacher`s body or instruments, still should not be allowed; only ``indirect corporal punishment``, infliction of pain by making students do some physical movements involving physical hardship, may be allowed; even then, the authority of corporal punishment should be given only to the head of the school, not to the teachers of the school. The article also argues that the phrase, "inevitable for the purpose of education", should be interpreted more strictly.