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고려대학교 법학연구원> 고려법학> 초국경적 환경피해에 대한 구제방법 등에 관한 소고; -일본 후쿠시마 원전사고와 관련하여

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초국경적 환경피해에 대한 구제방법 등에 관한 소고; -일본 후쿠시마 원전사고와 관련하여

An Overview of Legal Remedies for Transboundary Environmental Harm: Focusing on Nuclear Explosion at Japan`s Fukushima Nuclear Plant

오선영 ( Sun Young Oh )
  • : 고려대학교 법학연구원
  • : 고려법학 61권0호
  • : 연속간행물
  • : 2011년 06월
  • : 1-40(40pages)
피인용수 : 12건

(자료제공: 네이버학술정보)

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A powerful explosion hit a nuclear power station in Fukushima, north-eastern Japan which was badly damaged in devastating earthquake and tsunami. In order to prevent the explosion of the plant, sea water was being pumped into the site to lower temperatures. The water being used to try to cool the reactors and the dangerous spent fuel rods was leaking through fissures inside the plant, seeping down through tunnels and passageways to the lowest levels, where it is accumulating into a sea of lethal waste. Therefore, the high-level radioactive substances in the water was supposed to be safely stored, processed and solidified. However, the radioactive waste water was discharged into the sea to make room for dealing with some of the high unit radioactive water without prior notice to neighboring States. Since the safety of the waste was not proved yet, the international society accused Japanese government of responsibility for such act. Therefore, how to call the Japanese government to account was strongly questioned. The Korean citizens may demand compensation for intended dump of the nuclear waste into the sea when harms have occurred. However, it is unlikely to be practicable because it is extremely difficult to prove a causal relationship between the dump of such waste and the actual harm, which is the mandatory element of a claim for damages. The Korean government may argue that the Japanese act in the discharge of radioactive effluent might violate international law on the ground that the government has a duty to prevent environmental pollution under the international environmental law. However, it also seems to impracticable due to the difficulty of a causal relationship proof, relief insufficiency and diplomatic problems. Therefore, in order to prepare effective solutions for nuclear damages, we must have a legal basis at the domestic law so as to make a claim for damages caused by Japanese nuclear waste. At the international level, it is urgent to encourage States to become a member of Convention on Supplementary Compensation for Nuclear Damage and to sign the regional environmental agreements that make the duties of prior notice and exchange of information mandatory and contain the enforcement mechanism.

UCI(KEPA)

I410-ECN-0102-2012-360-002447321

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  • : 1598-1584
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  • : 학술지
  • : 연속간행물
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1초국경적 환경피해에 대한 구제방법 등에 관한 소고; -일본 후쿠시마 원전사고와 관련하여

저자 : 오선영 ( Sun Young Oh )

발행기관 : 고려대학교 법학연구원 간행물 : 고려법학 61권 0호 발행 연도 : 2011 페이지 : pp. 1-40 (40 pages)

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A powerful explosion hit a nuclear power station in Fukushima, north-eastern Japan which was badly damaged in devastating earthquake and tsunami. In order to prevent the explosion of the plant, sea water was being pumped into the site to lower temperatures. The water being used to try to cool the reactors and the dangerous spent fuel rods was leaking through fissures inside the plant, seeping down through tunnels and passageways to the lowest levels, where it is accumulating into a sea of lethal waste. Therefore, the high-level radioactive substances in the water was supposed to be safely stored, processed and solidified. However, the radioactive waste water was discharged into the sea to make room for dealing with some of the high unit radioactive water without prior notice to neighboring States. Since the safety of the waste was not proved yet, the international society accused Japanese government of responsibility for such act. Therefore, how to call the Japanese government to account was strongly questioned. The Korean citizens may demand compensation for intended dump of the nuclear waste into the sea when harms have occurred. However, it is unlikely to be practicable because it is extremely difficult to prove a causal relationship between the dump of such waste and the actual harm, which is the mandatory element of a claim for damages. The Korean government may argue that the Japanese act in the discharge of radioactive effluent might violate international law on the ground that the government has a duty to prevent environmental pollution under the international environmental law. However, it also seems to impracticable due to the difficulty of a causal relationship proof, relief insufficiency and diplomatic problems. Therefore, in order to prepare effective solutions for nuclear damages, we must have a legal basis at the domestic law so as to make a claim for damages caused by Japanese nuclear waste. At the international level, it is urgent to encourage States to become a member of Convention on Supplementary Compensation for Nuclear Damage and to sign the regional environmental agreements that make the duties of prior notice and exchange of information mandatory and contain the enforcement mechanism.

2국제재난법에 관한 보편적이며 포괄적인 국제조약은 존재가능한가?

저자 : 박기갑 ( Ki Gab Park )

발행기관 : 고려대학교 법학연구원 간행물 : 고려법학 61권 0호 발행 연도 : 2011 페이지 : pp. 41-94 (54 pages)

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International law is a legal system that regulates and controls activities of States, international organizations and persons including NGO. Currently over 150 bilateral agreements and 50 multilateral conventions were concluded and many resolutions and guidelines concerning humanitarian relief or mutual assistance in the event of disasters. However the existing international legal framework applicable to humanitarian disasters remains patchy and suffers from weaknesses limiting its effectiveness. In this context, we posed two questions: first, can we say now-a-day that the International Disaster law exist as a independent legal system? Why don`t we until yet a comprehensive multilateral convention that protect victims in various disaster situations? This article tries to find any possible elements which can build and compose an eventual international convention in event of disasters. Through historical survey, we find quite a few common denominators or guiding principles as follows: necessity of humanitarian assistance, responsibilities of affected States by disaster, responsibilities of assisting actors (State, international organizations and NGOs), early warning and preparedness, legal facilities for assisting personnel (privileges and immunities), good and equipment, respect of sovereignty of affected State by disaster`s, principle of cooperation, duty of notification, obligations and legal protection of humanitarian assistance participants especially non-intervention of internal problems and special considerations for the developing countries, principal role of the United Nations, etc. To succeed for elaborating a comprehensive and multilateral convention in this field, we should fix an appropriate definition of disasters and need a Copernican change concerning the existing theory and principles of international law, especially about ``sovereign equality``: for example, if we stick at national sovereignty, we can not provide rapidly and effectively an humanitarian assistance to disaster victims when an affected State refuses arbitrarily or resists to an international aid offered in bona fides.

3다형적 페르소나로서 법 -낙태의 자유와 잊혀질 권리를 예로 하여-

저자 : 민윤영 ( Yoon Young Min )

발행기관 : 고려대학교 법학연구원 간행물 : 고려법학 61권 0호 발행 연도 : 2011 페이지 : pp. 95-129 (35 pages)

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This article introduces Jung`s analytic psychology as a new referential point for analyzing legal issues. Among Jung`s analytic psychology, this article focuses especially on his theory concerning the relationship between Persona, which is the outer personality presented to others socially by an individual, and inner personality. This theory is expected to be relevant when applied to jurisprudence, as the law of ``person`s can be understood as the law of ``persona`s. This article is based on the understanding that human life is created through the performance of diverse personas. Therefore, it claims that as a human right, plural and even mutually contradicting personas should be recognized by law. As persona, which originally means the mask worn by Greek actors, has an intrinsic power to induce narrative and storytelling, permitting diverse personas should be recognized as a condition for guaranteeing human rights. Furthermore, this article insists that guaranteeing diverse and contradictory, yet balancing personas will form a basis from which new justice, which restores the primordial Archetypus of human kind, will be produced, different from the existing justice which is achieved through unified and coherent legal order. From these theoretical points of view, the need to recognize the persona of prostitution and that of abortion is claimed. However, it is not without limit to recognize diverse personas. The work of guaranteeing personas should be performed in harmony with existing legal principles. Lastly, bearing in mind Jung`s warning that identifying with one`s persona is symbolically the same as death, this article suggests an analysis that law functions as pharmakon in regards to the identification with persona. Law has an essential attribute of causing the individual to identify with his persona, while it also works to prevent identification with one`s past personas. This preventive aspect of law is discussed more with the right to be forgotten as an example which is appearing as an important right in this digitalized era.

4시각장애인웹접근성 법제에 대한 비교법적 고찰 -미국, 영국, 호주를 중심으로

저자 : 박경신 ( K. S. Park ) , 김가연 ( Kha Yeun Kim ) , 김성훈 ( Seong Hun Kim ) , 양송희 ( Son Hee Yang ) , 채필규 ( Pil Kyu Chae )

발행기관 : 고려대학교 법학연구원 간행물 : 고려법학 61권 0호 발행 연도 : 2011 페이지 : pp. 131-171 (41 pages)

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The blind can also access the Internet through a screen reader and must be allowed to do so in order to overcome the Digital Divide, the negative impact of which will fall on them in the most extreme form. To that end, websites must be designed so that they are screen- reader-friendly. The author looks at the laws and cases of the U.S., the U.K. and Australia that impose such design requirement on web operators and examine the corresponding law of Korea, the Disability Discrimination Prevention Act and its regulations, for improvement.

5헌법재판소 한정합헌,한정위헌 결정의 기속력

저자 : 최희수 ( Hee Su Choi )

발행기관 : 고려대학교 법학연구원 간행물 : 고려법학 61권 0호 발행 연도 : 2011 페이지 : pp. 173-203 (31 pages)

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Durch die vorliegende Arbeit hat Ich die Probleme der Bindungswirkungen "Soweit-verfassungsmaßig"(Constitutional in certain extent)-Entscheidungen und "Soweit-verfassungswidrig"(Unconstitutional in certain extent)-Entscheidungen des Verfassungsgerichts in Korea untersucht. Dafur hat ich verschiedene Theorien uber die Relation zwischen oben zwei Entscheidung-Varianten in Rechtsprechungen und Literatur, verschiedene Meinungen uber den Umfang der Bindungswirkung nach jede Entscheidung-Variant analysiert. Die Folgerungen dieser Untersuchng konnen als nachfolgende Konklusionen zusammengefasst werden. (1) Nach meiner Meinung sind diese zwei Entscheidung-Varianten identisch in ihres Wesen. (2) "Soweit-verfassungsmaßig"-Entscheidung voraussetzt, dass der bleibende Teil außer dem als verfassungsmaßig beurteilten Teil der Norm verfassungswidrig ist. In Gegenteil bedeutet "Soweit-verfassungswidrig"-Entscheidung, dass der bleibende Teil außer dem als verfassungswidrig beurteilten Teil der Norm verfassungsmaßig ist. (3) Aber kann Bindungswirkung nur der als verfassungawidrig beurteilte Teil in jeder oben zwei Entscheidung-Varianten entfaltet, weil anders als in Deutschland nicht ``die Entscheidungen des Verfassungsgerichts``, aber nur ``die Verfassungswidrigkeitserklarung des Verfassungsgerichts`` Bindungswirkungen entfalten kann. Wenngleich diese durch Rechtsprechung ausgestaltete Konklusionen auf heftige verschiedene literarische Kritik stießt hat, bin ich der meinung, dass die Ansicht der Rechtsprechug den gute Grund hat.

6의회와 입법절차 -입법기능과 입법절차의 상관관계를 중심으로-

저자 : 이장희 ( Jang Hee Lee )

발행기관 : 고려대학교 법학연구원 간행물 : 고려법학 61권 0호 발행 연도 : 2011 페이지 : pp. 205-241 (37 pages)

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The main thesis of this paper is the relation between legislative function and a legislative procedure in the Constitution. A rational and fair legislative procedure is necessary for lawmaking, in which a legislative procedure is considered as a legal process that should be abided by legislator. However, the procedure is often ignored or infringed practically by legislator. All state actions including legislation are under control by the Constitution and the law, which should be achieved according to a legal procedure envisaged by the Constitution and the law. It means that legislative process regulated by a legal procedure that has binding force is a full fulfillment of legislative function in the Constitution; by such a legal procedure two kinds could be strengthened, the one is democracy as to make adjustments in diverse and different opinions possible, the other is the rule of law as to remain within legality. Hence a legislative procedure in relation to legislative function has a meaning that improve rationality, fairness, and democracy in lawmaking. Furthermore, a legislative procedure does its role to ensure the law to be constitutional, that is, ``constitutional law in fair procedure``. If there are significant procedural faults in lawmaking, we can say that there is no law coming into being regardless of whether the law is good or bad. The premise of the execution of the law or of the jurisdiction according to the law is bringing into the existence of the law, which could be possible only by abiding by a legislative procedure. However, in the view of the legal stability, there are another questions and need extra inquiries about whether there could be the denial of the force of the law which has procedural faults in lawmaking.

7계약을 통한 사적 자유의 제한과 그 한계 -광고계약을 중심으로-

저자 : 박영목 ( Young Mok Park )

발행기관 : 고려대학교 법학연구원 간행물 : 고려법학 61권 0호 발행 연도 : 2011 페이지 : pp. 243-280 (38 pages)

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Freedom of Contract is one of the most important principles in the Civil Law. But this freedom also must be realized within legal system formed by Constitutional Law. So when judges the validity of contract or interpret the intent of contract, they must respect the value of Constitutional Law. The examples that contracts restrict the fundamental rights are non-competition duty clauses in employment contracts and the keeping dignity duty clauses in advertising contracts. The former clauses protect the trade secrets of employers, but also restrict the rights to work and freedom of vocational choice rights of employees. The latter clauses protect the rights of advertisers, but can infringe on the models` privacy. In former case Korean Supreme Court balance between freedom of vocational choice rights of workers and employer`s rights of property (Korean Supreme Court Judgment 2010. 3. 11. 2009Da82244). But in latter case of keeping dignity duty clause the Korean Supreme Court just recognizes a model`s duty of keeping dignity in advertising contracts without balancing between the model`s privacy and the advertiser`s interest (Korean Supreme Court Judgment 2009. 5. 28, 2006Da32354). However two cases are identical to its evaluating. Therefore also in latter case it is necessary to balance between the model`s privacy and the advertiser`s interests. At this stage, the following factors can be considered; (1) what remedy is claimed by the advertiser, (2) whether such remedy is explicitly provided in the agreements and (3) how seriously the model`s freedom is infringed on.

8대규모 집회,시위 참가자의 공동불법행위책임에 관한 연구 -민법 제760조와 부진정연대책임론에 대한 재검토

저자 : 김제완 ( Je Wan Kim )

발행기관 : 고려대학교 법학연구원 간행물 : 고려법학 61권 0호 발행 연도 : 2011 페이지 : pp. 281-321 (41 pages)

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In 2009, Seoul Metropolitan Government`s Hi Seoul Festival was interrupted by a series of assemblies and demonstrations which protest against President Lee and the ruling party`s policies. Seoul Metropolitan Government and Seoul Foundation for Arts and Culture made a lawsuit against 9 participants out of more than 1300 participants, claiming 30%(est. 200,000 USD) of the frustrated costs of the festival which the plaintiffs had already spent, now made meaningless by the damages caused by the defendants` unlawful acts in the assemblies and demonstrations. In 2010, Seoul District Court gave a judgement ruling that the defendants are jointly and severally liable for most of the damages claimed by the plaintiffs. This article criticizes the case and discusses further on the Korean tort law issues, whether or not the mere participants are jointly and severally liable for the unexpected damages caused during a series of assemblies and demonstrations, which the defendants did not organize themselves. The author presents a critical review on multiple tortfeasors and apportionment of liability laws in Korea and an analysis on the remoteness, the same damage, indivisible harm, pure economic loss and partial causation rules in a comparative law aspect. As a conclusion, the author suggests that we need to debate more precisely about the causation and the same damage rule, and find the balance between various values of our laws, including the Constitution, hopefully mitigating the damage or partially accepting the several liability rules for the case.

9형법개정에서 "구류형의 존폐"에 관한 연구 -특히 경찰청의 입장을 중심으로-

저자 : 허일태 ( Il Tae Hoh )

발행기관 : 고려대학교 법학연구원 간행물 : 고려법학 61권 0호 발행 연도 : 2011 페이지 : pp. 323-355 (33 pages)

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The Criminal Law Revision Committee under the control of Ministry of Justice had provisionally agreed to delete the detention as a kind of criminal punishment in the lower half of 2007. On the other hand, in 2010, National Police Agency advocated the necessity of maintaining detention, demanded to review whether the detention would be retained or not. Thus, the Criminal Law Revision Committee decided to maintain the detention as a kind of criminal punishment. The Ministry of Justice has submitted an amendment to the Criminal Law, the amendment has stipulated the detention as a kind of criminal punishment. However, the detention should be deleted from the Korean Criminal Code, the reasons are as follows. In the first place, a punishment should be imposed in the ultimate step. In practice, the accused is detained for five to six days. There is a close analogy between the penal-detention sentence and detention as part of the criminal procedure. Detention as part of the criminal procedure is not thought of as a punishment. It is difficult to find the difference between penal detention in the criminal law and detention as part of the criminal procedure. It is also hard to establish the propriety of penal detention as a kind of punishment. Second, there is no essential difference between the periods of imprisonment and detention. If a person is sentenced to 30-day imprisonment, the person is treated as a convict and is divested of a public office that he/she may be holding at the time. On the other hand, if the accused is sentenced to 29-day penal detention, he is not divested of a public office that he/she may be holding at the time. Thus, the propriety of the distinction between imprisonment and detention is doubtful. Third, most of the crimes that are punishable by penal detention or the imposition of a minor fine come under the Punishment of Minor Offenses Act. They are thus no more than mere social deviations. Germany decriminalized social deviations by treating them as violations of the public order. Criminal punishments have the intrinsic attribute of inflicting unbearable pain on the convict, and thus, the crimes that are subject to punishment should be illegalities that are not tolerated in the society. Thus, imposing penal detention for social deviations by treating them as crimes is against the essential function of a punishment. It is desirable to decriminalize the actions that come under the Punishment of Minor Offenses Act, as Germany has done by placing such acts under the Act on the Regulation of Violations of the Public Order. If we will do the same, the cost of criminal justice can be expected to be reduced, the spawning of ex-convicts can be expected to be diminished, and peace can be expected to prevail in the homes of the South Koreans. Fourth, it seems necessary to improve the general kinds of punishment and their methods of imposition. According to the Chinese Criminal Law, capital punishment, imprisonment, and detention are principal penalties while the imposition of a fine is an additional penalty. It is possible that only a fine will be imposed as an additional penalty, without a principal penalty. Thus, we can refer to the structure of punishment in the Chinese Criminal Law. It should be considered possible for "community service order," "order to attend a lecture," or "order of compensation for the victim" to be solely imposed, without imposing "suspension of execution" or "suspension of sentence." Lastly, there are reasonable grounds for the provision of imposing community corrections independently, although community corrections. For example, "community service order," "order to attend a lecture," or "order of compensation for the victim" could be imposed instead of five-day penal detention. It is also necessary to come up with a rule to the effect that an insolvent person could be put under custody at a workhouse if he/she defaults on the "order of compensation for the victim."

10주거침입죄의 제한적 해석을 위한 비판적 고찰

저자 : 박혜진 ( Hye Jin Park )

발행기관 : 고려대학교 법학연구원 간행물 : 고려법학 61권 0호 발행 연도 : 2011 페이지 : pp. 357-387 (31 pages)

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The violation of domicile is a crime about constant temperature and a safety of personal residence, the building which manages, the vessel, the aircraft and the room which occupies etc.. Above all, the importance of the crime of breaking into a dwelling-house grows more in us of today. and that reason why we live in dangerous inside of private life exposure and interference. The current Constitution Law guarantees freedom of privacy as a basic human right and Article 319 of the Criminal Law defines that A Person, who intrudes upon a personal housing, managed the buildings, vessel or aircraft, or occupied room, shall be punished by imprisonment of three years or less. or a fine of not more than five million won. Affording a basis for that, there is the aim that the violation of domicile is a crime for the personal benefit and protection of the law of that special i.e. one`s freedom of habitation, not public policy or social order. The problem is that unlawful entry has been under scrutiny for possible abuse with no purpose of one`s privacy protection but another object or the punishment aim in many cases, contrary to the intend of the law. Furthermore, Many of the ruling and theories are on the opposite side in interpretation and that hinder valid understanding. Recently, The Supreme Court ruled that a room of public convenience and common space of apartment house are implied by a concept of ``residence``, in regard to constitute unlawful entry an offence. Therefore, First of all, This Study will conduct in-depth discussions about major issues of interpretation in unlawful entry such as the benefit and protection of the law, the object, trespass and etc. So I`m going to split these up and try the restrictive analysis, in an attempt to make The violation of domicile an active part of the normative cause and the benefit and protection of the law.

12
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간행물명 수록권호

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한국의료법학회지
17권 1호 ~ 19권 2호

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한국의료법학회지
20권 1호 ~ 22권 2호

KCI등재

법학연구
27권 4호 ~ 27권 4호

KCI후보

안암법학
59권 0호 ~ 59권 0호

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형사정책
31권 3호 ~ 31권 3호

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비교형사법연구
21권 3호 ~ 21권 3호

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한국의료법학회지
23권 1호 ~ 25권 2호

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경찰법연구
17권 3호 ~ 17권 3호

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한국의료법학회지
12권 1호 ~ 27권 1호

교회와 법
6권 1호 ~ 6권 1호

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법조
68권 5호 ~ 68권 5호

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법과 사회
61권 0호 ~ 61권 0호

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법학연구
29권 3호 ~ 29권 3호

BFL
90권 0호 ~ 91권 0호

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홍익법학
20권 3호 ~ 20권 3호

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법학논총
36권 3호 ~ 36권 3호

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법학연구
75권 0호 ~ 75권 0호

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법학논집
24권 1호 ~ 24권 1호

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피해자학연구
27권 2호 ~ 27권 2호

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서울대학교 법학
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