• Journal of Arbitration Studies
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• v.12 no.1
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• pp.55-88
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• 2002

Arbitration Act does not have express provision about voluntary agreement for the arbitration which third party, that is, the expert confirms factual bases of party's relationship of rights and duties, determines contents of the contract, and supplements or modifies contracts, and then the parties obey the expert's decision, but it is more probable that the parties can agree to this kind of arbitration agreement as long as they freely make a contract within the scope of law. However, there is a split of authority on the scope of such arbitration agreement. Some scholars argue that the parties can only agree on the extent of the expert's confirmation about factual situations of party's relationship of rights and duties or contents of the contract. On the other hand, the other scholars argue that the parties can consent not only the expert's confirmation about factual situations of party's relationship of rights and duties or contents of contract, but also the expert's supplement or modification of contents of contract. Due to the expert's decision has effect on both parties and judges who give a judgment as a matter of law, this kind of arbitration agrement can contribute to prevent litigation. Also arbitration relieves court's burden, if such arbitration agreement was done on the important disputes. Considering that the arbitration agreement can function as a dispute resolution or a dispute prevention, it is desirable that legislators make the provision about this kind of arbitration and allow the application of arbitration Act in such arbitration agreement. Most scholars agree that the voluntary agreement for the arbitration as to third party's supplement or modification of contents of the contract can be included in the concept of a substantive law. However, it has not been concluded whether the voluntary agreement for the arbitration which follows the expert's confirmation about factual situations of party's relationship of rights and duties or contents of the contract has the nature of substantive law or procedural law. The dispute about the nature of such arbitration agreement have some shortcomings in the effect of second kind of voluntary arbitration and the applicability of procedural principles. Therefore, it will be more adequate that the focus is given to the original function of this kind of arbitration agreement and the applicability of procedural principles (the neutrality of arbitrator, the assurance of hearing of the parties) rather than the dispute regarding the nature of this kind of arbitration agreement. Considering that more attention is given to the substitutive dispute resolution these days, the function of arbitration as prevention to the litigation and resolution before the litigation should be emphasized. To do this, a legal dispute about such arbitration agreement has to be resolved. More important issues in this kind of arbitration agreement are to retain of the neutral expert and to positively inform the benefits of this institution to the public.

• The Korean Journal of Applied Statistics
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• v.27 no.4
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• pp.523-541
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• 2014

We apply a Bayesian estimation procedure to the analysis of roll call voting records on 2,389 bills processed during the 18th Korean National Assembly. The analysis of roll calls yields useful tools for to combining the measurement of legislative preference with the models of legislative behavior. The current Bayesian procedure is extremely exible, applicable to any legislative setting, irrespective of the extremism of the legislator's voting history or the number of roll calls available for analysis. It can be applied to any legislative settings, providing a useful solution to many statistical problems inherent in the analysis of roll call voting records. We rst estimate the ideal points of all members of the 18th National Assembly and their condence intervals. Subsequently, using the estimated ideal points, we examine the factional disparity within each major party using the estimated ideal points. Our results clearly suggest that there exists a meaningful ideological spectrum within each party. We also show how the Bayesian procedure can easily be extended to accommodate theoretically interesting theoretical models of legislative behavior. More specically, we demonstrate how the estimated posterior probabilities can be used for identifying pivotal legislators.

• Korean Journal of Legislative Studies
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• v.24 no.2
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• pp.67-99
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• 2018

This study analyzes the revision bills of the National Assembly Law in the 19th National Assembly in which the National Assembly Advancement Act was enacted, with the question "who are involved in the revision of the procedural rules, and what motivates them?" The cosponsor network analysis focusing on primary sponsors of the revision bills shows that the network was constructed by party affiliations. A small number of members with high degree centrality attempted to cooperate with each other at the cosponsoring stage, but the legislation did not pass through the related committee. In addition, this study tests the four competitive hypotheses (the committee hypothesis, the distributive politics hypothesis, the ideological distance hypothesis, and the partisan affiliation hypothesis) about the motivation to propose amendments by using the regression models which include newly measured variables. Only the committee hypothesis and the partisan affiliation hypothesis are empirically supported. This implies that partisan consideration is still significant in amending the National Assembly Law even after the National Assembly Advancement Act, and thus party leaders' willingness to seek bipartisan compromises is at the heart of problem-solving.

• Journal of Legislation Research
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• no.44
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• pp.387-433
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• 2013

Understanding the concepts of health and medical practice are significant because they are the basis of health and medical policy and law. How legislators, policy makers, and the public perceive those concepts defines the direction of legislation and policy making. This study aims to show the changes of the concepts by reviewing the history of major Statutes relating to health and medicine. Alongside medicalization of human conditions and daily activities, the concepts of health and medical practice also expanded. On the other hand, as technologies of health and medicine have specialized and segmented, the large portion of public services of the past is now provided by the private sector. We argue that the actual laws and decisions by the judiciary should be responsive to social and scientific changes, which may cause the changes of the perceptions of health and medical practice. By doing so, they not only can have actual legal force but also even initiate a movement for establishing new medical policy or law.

• Korean Journal of Legislative Studies
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• v.27 no.2
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• pp.71-109
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• 2021

The purpose of this study is to find out what factors influence lawmakers' voting decisions in the plenary session. In particular, the study examines causes and characteristics of waffling and strategic waffling, which express opposition or abstention in a discharge petition or a vote at the plenary session despite participating in a bill sponsorship. The study on waffling is meaningful because it has not been covered in previous literatures. To this end, the Gadeokdo New Airport Special Act, which the National Assembly passed in February 2021, was set as an analysis target. The study examined the factors that affected legislators' voting decisions and participation in bill sponsorship and who were related with waffling. Statistical results showed that the age variable influenced the motion of the bill while seniority and party affiliation had an effect on the participation of the bill. Likewise, the study found that party affiliation and district had an influence on the approval of the bill. In addition, the analysis of waffling showed that lawmakers with higher seniority tended not to participate in the vote. It could be interpreted that lawmakers with more legislative experience judged that they would benefit from strategic waffling. There is a limit to understanding lawmakers' decision-making and waffling through a limited analysis of the Gadeokdo New Airport bill. However, given that lawmakers tend to choose avoidance strategies in ambiguous situations, and given the high intelligence of lawmakers who know better than anyone about the future impact of a new bill, the decision-making shown by lawmakers in each stage of the situation is a prudent judgment gained from their experience. It indicates that it is necessary to research the legislative activities of lawmakers in various ways.

• The Korean Society of Law and Medicine
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• v.20 no.3
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• pp.143-174
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• 2019

Our Constitution obliges the state to protect the health of the people, and the Medical Law, which embodied Constitution, sets out in detail the matters related to open the medical institution, and one of them is to prohibit the operation of multiple medical institutions. By the way, virtually multiple medical institutions could be opened and operated because the Supreme Court had interpreted that several medical institutions could be opened if medical activities were not performed directly at the additional medical institution which was opened under the another doctor's license. However, some health care providers opened the several medical institutions with another doctor's license for the purpose of the maximization of profit, and did illegal medical cares like the unfair luring of patients, over-treatment, and commission treatment. Also, realistic problems such as the infringed health rights have arisen. Accordingly, lawmakers had come to amend the Medical Law to readjust the system of opening for medical institution so that medical personnel could not open or operate more than one medical institution for any reason. For this reason, the Constitutional Court recently declared a constitutional decision through a long period of in-depth deliberation because the constitutional petition and the adjudication on the constitutionality of statutes had been filed on whether Article 33 paragraph 8 of the revised medical law is unconstitutional. The Constitutional Court acknowledged the "justice of purpose" in view of the importance of public medical institutions, of the prevention from seduction of for-profit patients and from over-treatment, and of the fact that health care should not be the object of commercial transactions. Given the risk that medical personnel might be subject to outside capital, the concern that the holder of the medical institution's opening certificate and the actual operator may be separated, the principle that the human body and life should not be just a means, and the current system's inability to identify over-treatment, it also acknowledged the 'minimum infringement'. Furthermore, The Constitutional Court judged it is constitutional in compliance with the principle of restricting fundamental rights, such as 'balance of legal interests'. In this regard, legislative complements are needed in order to effectively prevent the for-profit management and the over-treatment the Constitutional Court is concerned about. In this regard, consumer groups actively support the need for legislation, and health care providers groups also agree on the need for legislation. Therefore, the legislators should respect the recent Constitutional Court's decision and in the near future complete the complementary legislation to reflect the people's interests.

• The Korean Society of Law and Medicine
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• v.20 no.2
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• pp.3-39
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• 2019

Even after the Constitutional Court decided on August 23, 2012 that the provisions of abortion were constitutional, discussions on the abolition of abortion continued. The controversy about abortion is not only happening recently, but it has already existed since the time when the Penal Code was enacted, and it shares the history of modern legislation with the Republic of Korea. Legislators whom submitted amendment while insisting upon the eradication of abortion in the process of enacting criminal law at that time, presented social and economic adaptation reasons as the core reason. From then on, the abolition of abortion has been discussed during the development dictatorship, but this was not intended to guarantee women's human rights, but it was closely connected to the national policy projects of "Contraception" and "Family Planning" of the Park's dictatorship. Since then, the enactment of the Mother and Child Health Law, which restrictively allow artificial abortion, was held on February 8, 1973, in an emergency cabinet meeting that replaced the legislative power after the National Assembly was disbanded. It became effected May 10th. The reason behind the Mother and Child Health Law that included legalization of abortion in part was that the Revitalizing Reform at that time did not allow any opinion, so it seem to be it was difficult for the religious to express opposition. The "Maternal and Child Health Law" enacted in this way has been maintained through several amendments. It can be seen that the question of maintenance of abortion has been running on parallel lines without any significant difference from the time when the Penal Code was enacted. On August 23, 2012, the Constitutional Court decided that the Constitutional Opinion and the unonstitutional Opinion were 4: 4. However, it was decided by the Constitution without satisfying the quorum for unconstitutional decision of the Constitutional Court. This argument about abolition of abortion is settled for the the time being with the decision of the constitutional inconsistency of the Constitutional Court, and now, the National Assembly bears the issue of new legislation. In other words, the improved legislation must be executed until December 31, 2020, and if the previous improved legislation is not implemented, the crime of abortion (Article 269, Paragraph 1, Article 270 of the Criminal Code) Article 1 (1) will cease to be effective from 1 January 2021. Therefore, in the following, we will look into the reason of the Constitutional Court's constitutional discordance adjudication on criminal abortion(II), and how it structurally differs from the previous Constitutional Court and the Supreme Court. After considering key issues arised from the constitutional discordance adjudication(III), the legislative direction and within the scope of legislative discretion in accordance with the criteria presented by the Constitutional Court We reviewed the proposed revisions to the Penal Code and the Mather and Child Health Act of Korea(IV).

• Korean Journal of Social Welfare
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• v.53
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• pp.285-310
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• 2003

As National Pension Scheme for all nation complete in 1999 through expanding application in cities, the public pension including Public Occupational Pension became main axis of old-age income maintenance. After 4years since then, now, it is only half of total National Pension insured persons who have been qualified to receive pension through participate and contribution. The other half of National Pension insured is left the excluded from public pension. This paper is intended to identify scale and characteristics of the excluded from public pension and to analysis its cause, and to explore policy measures for solving the excluded's problem. for current recipients over 60 years old generation, the its excluded's scale is no less than 86% of the old over 60 years. The probability of getting in the excluded is high in case of old elderly and female for current elderly generation. For future recipients 18-59 years working generation, the its excluded's scale is no less than 61% of the 18-59 years total population. The probability of getting in the excluded is high in case of 18-29 years and female for current working generation. As logistic regression analysis determinant factor of paying or not pension contribution for future recipients, it appear that probability of getting in the excluded for current working generation is high in case of younger old, lower education attainment, irregular employee, working at agriculture forestry fishery sector, construction sector, wholesale retail trade restaurants hotels sector, financial institution and insurance real estate renting and leasing sector in comparison with manufacturing sector, occpaying at elementary occupation, professionals technicians and associate professionals, sale and service workers, plant machine operators and assemblers, legislators senior officials and managers in comparison with clerks. The Policy measures for the current recipient old generation have need to reinforce supplemental role of Senior's pension(non-contribution pension) until maturing of public pension, because of no having chance of public pension participants for them. And the Policy measures for the future recipient working generation have need to restructure social security fundamentally corresponding with social-economic change as labour market and family structure etc. The pension system has need to change from one earner one pension to one citizen one pension with citizenship rights. At this point, public pension have need to manage with combining insurance's contribution principle and citizenship principle financing by taxes. Then public pension will become substantially universal social network for old-age income maintenance and we can find real solution for the excluded from.

• Korean Security Journal
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• no.61
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• pp.285-305
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• 2019

In the bill of [Act on Certified Detective and Certified Detective Business] (hereinafter referred to as the Certified Detective Act) proposed and represented by the member of National Assembly, Lee Wan-Yong in 2017, the legislative point of view showed that various incidents and accidents, including new crimes, are frequently increasing as society develops and becomes more complex, however, it is not possible to solve all the incidents and accidents with the investigation force of the state alone due to manpower and budget, and therefore, a certified detective or private investigator are required. According to the decision of the Constitutional Court in June 2018, Article 40 (4) of the Act on the Use and Protection of Credit Information is concerned with 'finding the location and contact information of a specific person or investigating privacy other than commerce relations such as financial transactions' are prohibited. It is for the purpose of preventing illegal acts in the process of investigation such as the location, contact information, and the privacy of a specific person and protecting the privacy and tranquility of personal privacy from misuse and abuse of the personal information etc. Such 'privacy investigation business' currently operates in the form of self-employment business, which becomes a social issue as some companies illegally collect and provide such privacy information by using illegal cameras or vehicle location trackers and also comes to be the objects of clampdown of the investigative agency. Considering this reality, because it is difficult to find a resolution to materialize the legislative purpose of the Act on the use and protection of credit information other than prohibiting 'investigation business including privacy etc' and it is possible to run a similar type of business as a detective business in the scope that the laws of credit research business, security service business, the position of the Constitutional Court is that 'the ban on the investigations of privacy etc' does not infringe the claimant's freedom to choose a job. In addition to this decision, the precedent positions of the Constitutional Court have been that, in principle, the legislative regulation of a particular occupation was a matter of legislative policy determined by the legislator's political, economic and social considerations, unless otherwise there were any special circumstances, and. the Constitutional Court also widely recognized the legislative formation rights of legislators in the qualifications system related to the freedom of a job. In this regard, this study examines the problems and improvement plans of the certified detective system, focusing on the certified detective bill recently under discussion, and tries to establish a legal basis for the certified detective and certified detective business, in order to cultivate and institutionalize the certified detective business, and to suggest methodologies to seek for the development of the businesses and protect the rights of the people.