Incorporation and Implementation of Treaties in South Korea

2019 ◽  
pp. 220-238
Author(s):  
Jaemin Lee
Keyword(s):  
Legal System ◽  
Legal Status ◽  
Executive Branch ◽  
International Investment ◽  
Specific Reference ◽  
South Korean ◽  
The Status ◽  
Municipal Law ◽  
The Government ◽  
Political Landscapes

This chapter explains South Korea’s approach to incorporating and implementing treaties within its domestic legal system. The chapter begins by explaining the hierarchy of the legal system in Korea with specific reference to where treaties stand in the system. Treaties duly concluded automatically become part of the domestic law under the monistic approach adopted by the Korean Constitution. More specifically, the prevailing view in Korea is that treaties ratified with the consent of the National Assembly are deemed to have the same legal status as acts or statutes. Simplified treaties without ratification proceedings, hence without legislative consent, are considered to have the status of presidential decrees or enforcement decrees under acts or statutes. Due to the increasing interaction between treaties and municipal law, recent South Korean court cases attempt to clarify other outstanding legal issues, such as the distinction between self-executing and non-self-executing treaties, and the scope of individual persons’ claims under treaties. It is expected that more challenges will be raised in the executive branch and the legislature as well as the judiciary as domestic stakeholders are increasingly affected by a myriad of treaties, in particular free trade agreements and international investment agreements. Having realized the direct impact from treaties, domestic interest groups are now keen to provide their observations and views during negotiations and to scrutinize the implementing legislation of the government after the conclusion. Thus, while the constitutional framework of treaty conclusion has remained largely the same since 1948, the domestic legal and political landscapes for treaty negotiation, conclusion, and implementation are undergoing significant changes.

scholarly journals LEGAL STATUS OF A JUDGE AS A PUBLIC SERVANT

2019 ◽  
pp. 124-130
Author(s):  
Yu.V. Slabunova ◽  
N.M. Shcherbak
Keyword(s):  
Public Service ◽  
Legal Status ◽  
Public Official ◽  
The European Union ◽  
Association Agreement ◽  
Legal Personality ◽  
Public Servant ◽  
The Status ◽  
The Government ◽  
Legislative Improvement

The article deals with the characterization of the legal status of a judge of a court of general jurisdiction as a public servant. In the context of the active development and improvement of public administration in the world, the role of public service as a defining feature of the state for which the rights, freedoms, and legitimate interests of citizens is of the highest social value is increasing. Since the signing of the Association Agreement with the European Union by Ukraine, it has become necessary to introduce and establish in the national legislation such an institution as a public service. This became the lever that started the process of reforming the government system in the country and determined the correct vector for the development of public service in Ukraine. Legislative improvement of the judicial system and the status of judges of courts of general jurisdiction in the context of public service reform in Ukraine is one of the prerequisites for the further development of our country as a rule of law and democracy. In particular, public service reform in Ukraine should be aimed at creating a fundamentally new system of judiciary. Unfortunately, as of today, the domestic legislation has not undergone significant changes and additions regarding the introduction of the Public Service Institute. Particular attention is paid to the concept of “public service”, which is the defining legal definition for the study. Based on the analysis of the opinions of scientists, scientists form a list of the main features of public service. The nature and content of the activity of judges of courts of general jurisdiction is determined by the totality of the relevant legal elements that are part of the structure of their legal status. These include the judge’s legal personality, his rights and obligations, functions, principles, legal liability, and safeguards. The list of features of activity of judges of courts of general jurisdiction as public servants is determined. It is concluded that the status of judges of the courts of general jurisdiction is to be legally enshrined as a fundamentally separate and distinct type of public service. Keywords: public official, public service, judges of courts of general jurisdiction, judicial authorities, legal status.

Navigating Diffuse Jurisdictions

2019 ◽  
pp. 98-120
Author(s):  
Helen Quane
Keyword(s):  
Legal System ◽  
Legal Pluralism ◽  
Customary Law ◽  
Specific Reference ◽  
State Law ◽  
System P ◽  
The Status ◽  
Over Time

This chapter studies the jurisdictional boundaries between state and non-state law with specific reference to religious, or customary, law. The determination of these regulatory forms as state law depends on the extent to which they perform prescriptive, adjudicative, or enforcement functions. Indeed, the boundaries between state and non-state law are not as stable as they may appear, as they are liable to shift according to circumstances and over time. The chapter then argues that the issue of classification acquires resonance in cases where legal pluralism occurs as the character and scope of a state’s exercise of jurisdiction becomes far more ambiguous in such situations. This can create uncertainty about the jurisdiction of the respective systems, the status of norms from one system that are given effect in another, and how these norms should be interpreted and applied given their concurrent existence within more than one legal system.

International Investment Dispute Resolution in Vietnam: Opportunities and Challenges

2017 ◽  
Vol 18 (5-6) ◽  
pp. 918-941
Author(s):  
Manh Dzung Nguyen ◽  
Thi Thu Trang Nguyen
Keyword(s):  
Human Resources ◽  
Dispute Resolution ◽  
Legal System ◽  
Legal Framework ◽  
International Investment ◽  
Global Market ◽  
Foreign Investors ◽  
Investment Treaty ◽  
Challenges And Opportunities ◽  
The Government

Abstract Integration into the global market brings both challenges and opportunities for the Vietnamese legal system. As investment dispute prevention and settlement has not received much attention from the Vietnamese government, Vietnam experienced difficulties in dispute resolution when faced with investment claims. The reluctance to recognise and enforce foreign arbitral awards in Vietnam to protect local parties has resulted in a number of commercial disputes escalating into investment treaty claims. These experiences have, however, allowed Vietnam to identify defects in its legal framework, human resources and governance, and prompted the government to take measures to reduce the risk of being sued by foreign investors. Even though the effectiveness of these measures has not yet been proven, investment disputes have brought opportunities as well as challenges for Vietnam.

Government Rulemaking as a Brake on Perestroika

1990 ◽  
Vol 15 (03) ◽  
pp. 419-432 ◽  
Author(s):  
Eugene Huskey
Keyword(s):  
Soviet Union ◽  
Communist Party ◽  
Economic Reform ◽  
Legal System ◽  
Political System ◽  
Executive Branch ◽  
The Soviet Union ◽  
The Government

The Soviet political system is made up of three major institutions: the Communist Party, the parliament, and the government. Whereas the first two have changed dramatically under perestroika, the government has continued to function in more traditional ways. Most worrying to reformists, the government–the Soviet Union's “executive branch”–has used its broad rulemaking authority to impede the transformation of Soviet politics and society. This essay examines the role of governmental rules in the Soviet political and legal system. It concludes, following the lead of Soviet reformists, that without a fundamental restructuring of government making authority, legal, political, and economic reform in the Soviet Union cannot be institutionalized.

scholarly journals Ethnic Germans of Ukraine in the Context of Soviet-German Relations (1920-1950s)

2017 ◽  
pp. 166-182
Author(s):  
B. Chirko
Keyword(s):  
World War Ii ◽  
Legal Status ◽  
Ethnic Community ◽  
Spiritual Needs ◽  
German Population ◽  
Political Consequences ◽  
The Status ◽  
Ethnic Germans ◽  
The Government ◽  
State Relations

The aim of the publication is the study of ethno-political, socio-economic, demographic and other processes taking place in the environment of the German ethnic group of Ukraine in the context of the Soviet-German inter-state relations during 1920-1950s. The author analyzes the attitude of governmental bodies to the German ethnic community, causes, mechanisms of realization, demographic, social and political consequences of political repressions of the Stalinist regime against ethnic Germans, mass deportation of the German population from the regions of traditional accommodation in the interwar period. The author emphasizes that the repressive actions were caused by and closely related to administrative-imperative methods of implementation of domestic policies, the militarization of the economy, collectivization of village, violent grain procurements, antireligious campaigns etc. Repressions of the “nationalists” (German, Polish, etc.) were linked with the international factor - the aggravation of the situation in the world. The deterioration of relations between the USSR and Germany and Poland as well as the corresponding strengthening of anti-German and anti-Polish propaganda campaign led in particular to a special bias of Soviet authorities towards the German and Polish population, which was considered as a potential base for “Nazi” activities in the country. This publication analyzes the social and legal status of “volksdeutsche” during World War II, the attitude towards “ethnic Germans” of Ukraine from Nazi occupation regime. The status and nature of ethnic Germans staying in the mode of special settlements, repatriation and problems of separated families in the postwar years have been considered. The author has paid  special attention to the problems of lifting restrictions in the legal status of the majority of the German population of the USSR as a result of the German-Soviet negotiations in Moscow in 1955, the attempts of ethnic Germans and the government of Ukraine to ensure ethnic, social, cultural, religious and spiritual needs of the German ethnic community under conditions of modern Ukrainian state – building and deepening of democratic processes in Ukrainian society.

scholarly journals INSTITUTE OF PRESIDENCY IN HUNGARY AND UKRAINE: POLITICAL AND LEGAL ASPECT

2020 ◽  
pp. 85-94
Author(s):  
Sergii Tellis ◽  
Keyword(s):  
Comparative Study ◽  
Legal Status ◽  
Legal Aspect ◽  
Executive Branch ◽  
The Political ◽  
Constitutional Court ◽  
Personal Impact ◽  
Positioning Strategy ◽  
Head Of State ◽  
The Government

The article provides a comparative study of the constitutional powers granted to presidents in Ukraine and Hungary in the context of the political and legal aspect, and also an attempt to appraise the role of subjective factors involved in the exercise of state power and transformation of the presidency institute of the aforementioned states. The aim of the article: to comparative study of the constitutional and legal status of Hungarian and Ukrainian presidents in the political and legal context and performing an appraisal of the personal impact exerted by the head of state on the government of the above-said countries. The research methodology: to observation and generalization; ordering of all basic elements; method of scientific generalization, which made it possible to formulate conclusions. As a result, it is established that the institution of the presidency in Ukraine is the core of the executive branch, which dominates the state system. In Hungary, the executive and legislative branches make up a political bloc (alliance) which is counterbalanced in certain relations by the constitutional court and judicial power. The subjective factor, namely personal qualities of presidents – career path, role perception, interpretation of powers – determines the political heft of the head of state. Subject to sufficient individual traits, a constitutionally “weak” president is able to influence the country’s development concept and the positioning strategy on the global scene.

scholarly journals INITIATING LAW REFORM IN INDONESIA (FROM THE DIGNIFIED JUSTICE PERSPECTIVE)

2020 ◽  
Vol 3 (1) ◽  
pp. 14-25
Author(s):  
Christina Maya Indah S ◽  
Teguh Prasetyo
Keyword(s):  
Legal System ◽  
Civil Law ◽  
Status Quo ◽  
Point Of View ◽  
Law Reform ◽  
Social Changes ◽  
Sociological Jurisprudence ◽  
Legislative Branch ◽  
The Status ◽  
The Government

It is argued in this article that a study on the law reform of a country is the study which related to understanding of a scientific paradigm which made up of the basic idea of a country’s legal system. The main argument in this article is that the basic idea ofma legalmrefom on a legal system must be build upon the enforcement of the juridical principles found and developed in the system. This is derived from a postulate of the Dignified Justice teory perspective.In this view legal virtues underpinning a legal system are examined together as one system of principles and rules or a legal system. Philosophically, or it is a theoretical and a paradigm that law is believed as inseparable from the legal science itself. This philosophy has been developed to make a correction to the sociological jurisprudence perspective, which mainly argued that each occurence of social changes in a legal system cannot be answered by regulation alone. The sociological jurisprudence point of view argues that law is confined to the status quo of a society. Many has argued that this sociological indicative has occurred in many civil law systems, in particular Indonesia, to be used as its best prototype. In the Indonesian legal system, law is positioned as rules and regulations made by the legislative branch of the government. In this perspective laws has been excluded from humanity almost altogether. This article argues that Pancasila as the Indonesia Legal System is the way to solve this problem. Since Pancasila is used as the basis of the State and the source of all legal sources. For this reason, it is interesting to examine how the Pancasila actually became a basis of values in initiating the project of law reform in Indonesia.

Developments in Constitutional Law: Selected Topics

1990 ◽  
Vol 24 (3-4) ◽  
pp. 368-430 ◽  
Author(s):  
Shimon Shetreet
Keyword(s):  
Civil Rights ◽  
Prime Minister ◽  
Executive Branch ◽  
The State ◽  
Constitutional Protection ◽  
The Supreme Court ◽  
The Status ◽  
Relative Status ◽  
The Government ◽  
State Of Israel

The first forty years of the State of Israel witnessed significant changes in the relative status of the various branches of government. The executive was quite powerful during the early decades of the State's existence, thanks to the strong leadership of the first Prime Minister and founding father, David Ben Gurion. Accordingly, the status of the Supreme Court during that period was weak in comparison to the Executive Branch, i.e. the Government. Subsequently, the government's position weakened as the judiciary gained strength. This phenomenon was expressed in the increasing recourse to the courts to consider issues that had previously been the exclusive domain of the government. The judiciary's broader role and enhanced position vis-à-vis the executive did not bring about commensurate constitutional protection of the judicial system. In fact, we may observe a certain decline in this respect that hopefully, will be rectified when the Constitution of the State of Israel is completed with the enactment of Basic Laws on Human and Civil Rights coupled with legislation that will provide the requisite constitutional protection.

scholarly journals THE STATUS OF INTERNATIONAL TREATIES IN THE LEGAL SYSTEM OF THE RUSSIAN FEDERATION: FROM THEORY TO PRACTICE

2018 ◽  
Vol 1 (4) ◽  
pp. 28-37
Author(s):  
Olga Kiseleva
Keyword(s):  
Legal System ◽  
Legal Status ◽  
Legal Analysis ◽  
International Treaties ◽  
Conceptual Approach ◽  
International Treaty ◽  
Anal Ysis ◽  
The Status ◽  
Basic Characteristics ◽  
Definition Of

The subject. The article is devoted to research the legal nature of international treaties.The purpose of the article is to formulate the feasibility of determining the legal status of international treaties in the composition of the sources of law in terms of its unity.The methodology. The author uses the systematic approach to research, methods of anal-ysis and synthesis, including formal legal analysis of international treaties, Russian legislation and courts’ decisions.The main results and scope of their application. The analysis of the categories of legal act, the regulatory agreement, the international treaty, describing its characteristics, legal characteristics is performed. On the basis of the main legal characteristics of the category of normative legal acts, the expediency of inclusion of an international treaty to this category is proven. It is groundless to detach international treaties on normative legal acts, thereby reducing the extent of the need for their application. This, however, does not change the fact that the source of law in each legal system may have special characteristics depending on such system and complementing the basic characteristics. The international treaty is a legal act of international law. Such a conceptual approach to this issue allows making further conclusions.Conclusions. The author highlights the circumstances of the need for reasonable use of international treaties to resolve disputes, that are significant for the process of enforcement. This position is based on the proposed definition of an international treaty including it to the normative legal acts.

scholarly journals The Constitutional and Legal Regulation of Migration in the Italian Republic

Russian judge ◽  
2020 ◽  
Vol 11 ◽  
pp. 46-50
Author(s):  
Ilya S. Iksanov ◽  
Keyword(s):  
European Community ◽  
Regional Integration ◽  
Legal Status ◽  
Migration Policy ◽  
Legal Regulation ◽  
Social Adaptation ◽  
Illegal Migrants ◽  
The Status ◽  
The Government ◽  
Basic Approaches

Italy became a country of immigration quite late. external factors influenced the formation of Italy’s migration policy: the expansion of regional integration within the European community and accession to international conventions. The legislation on citizenship reacted to these changes. In particular, access to citizenship was made more difficult for foreigners from countries that were not part of the European community, and it was easier for descendants of emigrants who lived abroad to acquire citizenship. Italy has one of the most modern laws on the status of foreigners, which regulates all aspects of the legal status of these persons, as well as their social adaptation, and provides for the necessary measures to prevent discrimination and xenophobia. The provisions of this act may change in the event of a change in the government coalition, but the basic approaches are unchanged: citizens of other States are considered as part of the population of Italy; foreigners who reside in the country legally are equal to its citizens; illegal migrants are legally guaranteed a certain minimum of rights and freedoms.

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