Relationship between the Legislature and the Judiciary - Contributions to the 6th Seoul-Freiburg Law Faculties Symposium

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Section I Constitutional Law

Of Judicial Justice

The Gap between the Theories of Justice and Judicial Practice

Dilemma intrinsic in the Concept of Justice

Division of Justice

Justice as a Communicative Procedure

The Justice as a ‘Vanishing Point’

The Constitution Conformant Interpretation – Norm Compatibilisation Through Harmonisation by Way of Interpretation

I. An Instrument of Constitutionalisation

II. The Concept of Constitution Conformant Interpretation

1. Derivation, Premises and Mode of Action

2. Limits

III. A Legal Key Concept

IV. Four Questions regarding the Constitution Conformant Interpretation

1. Is it Interpretation?

a) Competing Contents of a Norm

b) The Character of the Exclusion of Interpretation

2. Do the Constraints Work?

3. Does the Derivation Work?

a) Hierarchically Structured Unity and Consistency of the Legal Order

b) Legal Capacity and Legal Ability

4. Do the Intended Effects Correspond to the Results?

a) Reducing a Norm’s Content Without Reducing a Norm’s Shape

b) The Constitution Conformant Interpretation by Ordinary Courts

c) The Constitution Conformant Interpretation by the FCC

V. A Preliminary Conclusion

Section II Legal Theory

Legal Construction between Legislation and Interpretation

I. Interpretation

1. Interpretation as Intentional Explanation

2. Meaning and Intentions

3. Legislative Intent

II. Legal Construction

1. Legal Construction as the Interpretation of a Text

2. Construction Versus Association

3. The Fiction of an Author

4. Legal Construction Versus Legal Interpretation

a) Generality

b) Consistency

c) Instrumental Rationality

d) Evaluative Rationality

e) “The Fusion of Horizons”

5. Legal Construction Versus Legislation

6. Legal Construction and the Rule of Law

7. Legal Construction and Truth

III. Résumé

Notes

Bibliography

Section III Private Law

Tension and Conflict between Laws Made by a Judge and Legislations by the National Assembly in Private Law

I. Misunderstanding and Truth of the Civil Law Country

II. Civil Cases showing tension and conflict between judge-made laws and legislations

1. Decisions against the text of the legislations.

1) Ordinary Wage Case(Supreme Court en banc Decision Case No. 2012Da72582 Decided May 16, 2014)

2) BMW Case (Supreme Court Decision Case No. 2012Da72582 Decided May 16, 2014)

3) The Beauty of The Golden Field Case(Daejeon High Court Case No. 2006Na1846 Decided Nov. 1, 2006)

2. Legislations Changing the Precedents

1) The statute regarding the status of the transferee of the security deposit of the lessee

2) The statute regarding Obligee's Duty to Provide Information and to Give Written Notice

3. Influences on the judge-made law by the related legislations

1) Interest Limitation Case(Supreme Court en banc Decision Case No. 2004Da50426 Decided Feb 15, 2007)

2) Divorce Claim Case(Supreme Court en banc Decision 2013Meu568 Decided September 15, 2015)

III. Causes bringing about tension and conflict between judge-made law and legislations

1. Intrinsic Constraints of Clarity of Language

2. Judges Seeking the Substantive Justice in Each Specific Case

3. Role of the Legislative and Court Ruling Overturned by the Legislative

4. Distrust in Legislature

IV. Solutions for easing tension and conflict between judge-made laws and legislations

1. Possible Solutions

2. How to Control Logic of the Judge

Judge-made Law beyond the German Civil Code

I. Introduction: A Decisive Distinction

II. Types of Judicial Development of Law

III. Justification for Judicial Development of Law beyond Statutes

IV. Boundaries of Judicial Development of Law beyond Statutes

1. Constitutional Boundaries

2. The Case of European Law

V. Judge-Made Law as a Legal Source

1. Case Law

2. Customary Law

VI. Distinguishing Judge-made Law from Other Types of Law

1. Substantiation of Statutes

2. Filling Gaps in Statutes

3. Supplementing Statutes

4. Correcting Statutes

VII. Conclusions

The Decision of the Korean Supreme Court on the Contingent Fee Agreement in Criminal Cases – General Clause, Judicial Activism, and Prospective Overruling

I. Introduction

II. The Decision

1. The Situation Before the Decision

2. Underlying Facts of the Decision

3. The Decision

4. The Influence of Foreign Laws

5. The Response to the Decision

III. Judicial Activism in the Interpretation

1. The Concept of Judicial Activism

2. Judicial Activism in the Interpretation

3. General Clauses as a Means of Judicial Activism

IV. Factors Relevant to Judicial Activism

1. The Text of Statute

2. The Compatibility with the Existing Law System

3. The Comparative Advantage Between the Legislature and the Court

4. The Magnitude of the Impact Upon Legal Relations

5. Application to This Case

V. The Problem of Prospective Overruling

1. Prospective Overruling

2. Criticism

VI. Conclusion

The Relationship between the Legislature and the Judiciary in DevelopingGeneral Principles of Private International Law

I. Introduction

II. Characterisation

1. In the domestic context

2. In the European context

a) Autonomous characterisation

b) Assessment of damages

c) Culpa in contrahendo

d) The relationship between European and domestic judges

III. Escape Clauses

1. In the domestic context

2. In the European context

a) The tension between flexibility and certainty

b) The relationship between European and domestic judges

IV. Habitual Residence

1. In the domestic context

2. In the European context

V. Dual and Multiple Nationalities

1. In the domestic context

2. In the European context

VI. Public Policy

1. In the domestic context

2. In the European context

VII. Conclusion

Section IV Criminal Law

The Influence of the Judiciary on the Criminal Legislation and Its Impact on the Transformation of Models: An Analysis of the Korean Experience

I. Introduction

II. Models of Criminal Procedure

A. Models and Structures

B. Two Models of Criminal Process

1. Crime Control Model

2. Due Process Model

C. Arrest and Detention in the Models

1. Arrest for Investigation

(1) Crime Control Model

(2) Due Process Model

2. Detention and Interrogation after a Lawful Arrest

(1) Crime Control Model

(2) Due Process Model

D. Linear and Triangle Structures

E. Use of Models and Structures

III. Korean Experience

A. Tool of Reign (1910-1945)

1. Structure of the Colonial System

2. Power Makes Rule

B. Introduction of Warrant System (1945-1948)

1. Design of the Interim Government

2. Transplant of US System

C. Intention of the Founders of Korean Criminal Procedure Act (1954)

D. Formal Judicial Review based on Documents (1948-1995)

1. Ideals and Reality

2. Voluntary Restraint (Accompanying the Police Voluntarily)

3. The Ostrich Court

4. Wriggling through the Frozen Land

E. Substantial Judicial Review with Hearings (1995- 2015)

1. Amendment of 1995

2. Amendment of 1997

3. Amendment of 2007

F. Doctrine of Trial-Centered Procedure

IV. Models and Experience

V. Conclusion

Criminal Law, Security and Criminal Policies: German and Korean Perspectives

1. Introduction

2. Pursuit of Security through Criminal Law and Criminal Sanctions

3. Crime Trends and Security Policies

4. Security an d Criminal Law Reform: Developments in Germany

5. Developments in Korea

6. Korean and German Perspectives Compared

Section V Commercial Law

Unintended Effect of Legislation: Valuation of listed shares when private benefits of control are expected

Introduction

I. Legislation & Court Decision

1. Unique Legislation on Valuation of Shares

2. Court Decisions

II. Samsung Group Merger

1. Merger

2. Disputes on Valuation of Listed Shares

III. Implications

1. Measuring Value of Control

2. Fairness of Merger Ratio

3. Effect of Legislation on Valuation of Shares

Concluding Remarks

Regulation of Internet Information Intermediaries: Personality Rights and Data Protection Law

I. Introduction

II. Jurisdiction

1. European Level

a. ECJ – Shevill (1995)

b. ECJ – eDate Advertising (2012)

c. Evaluation

2. National Level

a. Objective Domestic Relations

b. Legal Evaluation

c. Reaction of the FCJ

3. Interim Conclusion

III. Applicable Law

1. Right to Data Protection – Google Spain (2014)

a. Activity of a Permanent Establishment

Decision-Making Rationale

Legal Evaluation

2. Freedom of Speech

a. European Level

b. National Level

IV. Current Material Issues

1. ECJ – Google Spain – Right to be forgotten (2014)

a. Data-Protection Impairments of Personality Rights

b. Rights of the Person Concerned and Weighing of Interests

c. Legal Evaluation

Outlook

2. Assessment

V. Overall Summary

The Legislator‘s Fear of the CJEU in the Unified Patent System

I. Introduction

II. The status quo of the patent system in Europe

III. First unsuccessful attempt: The Draft Agreement on a European and European Union Patents Court (EUPC)

1. Basic features of the EUPC Court

2. Dismissal of the EUPC by the CJEU by Opinion 1/09

IV. Second (successful) attempt: The unified patent package

1. Basic features of the Unitary Patent and the Unified Patent Court

2. Removal of substantive European patent provisions from the EU-Regulation (“Cameron Rule”)

a. Primacy of EU Law for the entire UPC system

b. Removal of substantive patent law from the EU Regulation

c. Removal of the scope of patent protection from the EU Regulation

V. Interconnected EU- and Non-EU-Sources of Law under primacy of EU Law

1. Close links between different sources of law lead to an interconnected body of law

2. Primacy of EU law for the entire UPC body of law

3. Primacy of EU law for references to other EU sources law in the UPCA

4. Primacy of EU law in cases of “autonomous implementation” of EU law into the UPCA

VI. Consequences for the CJEU’s Jurisdiction

1. The CJEU might find itself competent to hear cases in which the primacy of EU law in the UPCA is at issue

2. CJEU Jurisdiction in cases of “overreaching implementation”

3. The CJEU might find itself competent to hear cases in which the scope of a patent is at issue

VII. Conclusion

Section VI Administrative Law

Recent Issues and Trends of Environmental Law and Policy in Korea – Legislature vs. Judiciary

I. Green growth and new climate regime in Korea

II. An Overview of CO2 Emission Trading Act in Korea and its insights on judiciary

1. Introduction

2. Allocation of Permits

3. Trading of Permits

4. Flexible mechanism

5. Market stabilization measures by competent authority

6. Penalties

7. ETA litigations

8. “Green Growth” in the judiciary

9. Climate change in the judiciary

III. Humidifier sterilizer case

1. Introduction

2. Regulation failure

3. Risk society and challenges of environmental law

4. Government reactions

IV. Criminal penalty on environmental crime

1. Aggravated punishment of environmental offenses

2. Disparity between the norm and the reality

3. Lessons for the humidifier sterilizer case

V. Legislature and judiciary in environmental law

VI. Conclusion

A Dynamic between the Legislature and the Judiciary in Korean Health Law: examplified by End-of-Life Decision-making and Health Care Financing Issues

I. Introduction

II. Discontinuance of Futile Life-Extending Treatments

1. The Boramae Medical Center Case

2. The Kim Case

(1) Requirements of Discontinuance of Life-Extending Treatment

(2) How to Confirm the Patient’s Intent?

(3) Procedural Aspect

3. Discussion

(1) The Kim Case’s Flaws and Limitations

(2) Legislative Reaction: The Enactment of Act on Hospice, Palliative Care and Decision on Life-Extending Treatment for the Patient in Dying Process

III. Treatment Uncovered and Unauthorized by National Health Insurance

1. Backgrounds: Health Care Financing System in Korea

(1) Compulsory Public Insurance

(2) Nomination Ipso Jure as a Health Care Service Provider for NHIS

(3) Standards and Costs of Health Care Service Covered by NHI

2. Treatment Uncovered and Unauthorized by NHI

3. Discussion

IV. Conclusion

List of Contributors