The Functional Transformation of Courts : Taiwan and Korea in Comparison
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Superior document: | Global East Asia ; v.3 |
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TeilnehmendeR: | |
Year of Publication: | 2015 |
Edition: | 1st ed. |
Language: | German |
Series: | Global East Asia
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Physical Description: | 1 online resource (302 p.) |
Notes: | Description based upon print version of record. |
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Table of Contents:
- Intro
- Title Page
- Copyright
- Table of Contents
- Jiunn-rong Yeh: 1 Introduction
- Body
- Courts in Asian new democracies: Taiwan and South Korea
- Structure of the book
- Overview of book chapters
- Conclusion: similarity, difference and challenge
- References
- Part I: Courts in Constitutional and Administrative Adjudications
- Jiunn-rong Yeh: 2 Court-ordered Apology: The Function of Courts in the Construction of Society, Culture and the Law
- 1 Introduction
- 2 Court-ordered apology cases in Taiwan and South Korea
- 2.1 Taiwan's case
- 2.2 Korean case
- 2.3 Judgment and reasoning in comparison
- 2.3.1 Freedom of speech vs. freedom of conscience
- 2.3.2 Rights conflicts vs. state-imposed restriction
- 2.3.3 Necessary remedy vs. improper measure
- 3 Legal debates on court-ordered apology
- 3.1 The subject of review
- 3.2 Rights and restriction
- 3.3 Necessary and proper
- 4 Cultural perspective on court-ordered apology
- 4.1 Apology in the West
- 4.2 The culture of "face" in Asia
- 4.2.1 Apology as guilt/right and as relational reputation
- 4.2.2 The function of apology and its requirements
- 5 The role of courts and judicial strategy
- 5.1 A court of reconciliation: Taiwan model
- 5.2 A court of modernization: Korea model
- 6 Conclusion
- References
- Jong-ik Chon: 3 The Effect of Constitutional Adjudication on the Judicial Branch: The Relationship between the Constitutional Court and the Ordinary Court
- 1 Introduction
- 2 Background
- 2.1 History of constitutional adjudication
- 2.2 The Constitutional Court in the 1988 Constitution
- 3 Impact of constitutional adjudication on the ordinary courts
- 3.1 Constitutional issues in ordinary court decisions
- 3.2 Scope of appeals to the Supreme Court
- 4 Conflicts between the Constitutional Court and the Supreme Court
- 4.1 Subject of conflicts.
- 4.2 Rules Implementing the Certified Judicial Scriveners Act case
- 4.3 Constitutional Review of the Supreme Court Decision case
- 4.4 Supplementary Provision of a Repealed Act on the Regulation on Tax Reduction and Exemption Case
- 5 Conclusion
- References
- Wen-Chen Chang: 4 The Evolution of Administrative Adjudication in Taiwan: A Model of Judicial Cooperation
- 1 Introduction
- 2 Creation and evolution
- 2.1 The establishment of administrative adjudication
- 2.2 The comprehensive revision since the late 1990s
- 3 Judges and appointment
- 3.1 Qualifications of judges
- 3.2 Appointments of judges
- 3.3 The number of judges
- 4 Jurisdiction and performance
- 4.1 Jurisdictional conflict
- 4.2 Standing to sue
- 4.3 Performance
- 5 Expansion: the model of judicial cooperation
- 5.1 Expansion by administrative courts
- 5.2 Expansion by the Constitutional Court
- 6 Conclusion
- References
- Seong-Wook Heo: 5 The Judicial Review Criteria in Korean Administrative Litigation: The Proportionality Principle in Korean Administrative Law and Democratic Accountability
- 1 Introduction
- 2 The proportionality principle in Korean administrative adjudication
- 2.1 Background
- 2.2 The contents of the proportionality principle
- 2.2.1 Principle of suitability (Grundsatz der Geeignetheit)
- 2.2.2 Principle of necessity (Grundsatz der Erforderlichkeit)
- 2.2.3 Principle of proportionality (Grundsatz der Angemessenheit)
- 2.3 The effect of the violation of the principle of proportionality
- 3 The example of judicial review of administrative action through the proportionality principle in Korea
- 3.1 Supreme Court March 8, 1994 Decision [Case I]
- 3.2 Supreme Court November 23, 2006 Decision [Case II]
- 3.3 Supreme Court August 24, 2001 Decision [Case III].
- 4 Is there any consistent and logical criterion for deciding whether a certain administrative measure is proportional?
- 5 The proportionality principle and the Chevron deference principle
- 6 The proportionality principle and democratic accountability
- 7 Conclusion
- References
- Part II: Courts in Civil and Commercial Adjudications
- Chung-jau Wu: 6 The Law-making Function of the Court and the Necessity for a Second Amendment for Taiwanese Law of Contracts: An Observation from Leading Cases
- 1 Introduction: a unanimous orientation of the codification or amendment of civil law in East Asia
- 2 Rethinking the necessity for a second amendment of the Taiwanese Law of Obligations
- 2.1 An overall re-examination on the rules of limitations
- 2.2 Reviewing the law of irregularities of performance
- 2.2.1 A general outline
- 2.2.2 Performance impossible: subjective or objective?
- 2.2.3 Performance impossible or performance non-conforming?
- 2.2.4 How the provisions of non-conforming performance and warranty are applied collaboratively
- 3 Conclusion: analysis and development of the Taiwanese Law of Obligations
- 3.1 The achievement of judge-law-making function by the court
- 3.2 The constraints of judge-law-making and the necessity for an amendment
- 3.3 A chance for the unification of East-Asian contract law
- References
- Jinsu Yune: 7 Judicial Activism and the Constitutional Reasoning of the Korean Supreme Court in the Field of Civil Law
- 1 Introduction
- 2 Actual lawmaking by the court
- 2.1 The protection of transsexuals' human rights
- 2.2 Termination of life-sustaining treatment
- 3 Constitutional review of customary law
- 3.1 The customary prescription for the inheritance restitution right
- 3.2 The female membership of the Jongjung
- 3.3 The host or hostess of the ancestor worship ritual.
- 4 Horizontal effect of human rights in the private sphere
- 4.1 The liability of an internet service provider for defamation
- 4.2 Mandatory religious education in private schools
- 4.3 The disclosure of private information about attorneys
- 5 Conclusion
- References
- Ching-Ping Shao: 8 Beyond Uncertainty: Lower Courts' Defiance in Insider Trading Cases
- 1 Introduction
- 2 Insider trading law and enforcement in Taiwan
- 3 Insider trading cases in Taiwanese courts
- 4 Beyond uncertainty: two examples of the lower courts' defiance
- 4.1 Comparison of the insider trading law before and after 2010
- 4.2 Controversy of "possession" versus "use"
- 5 Exploring the lower courts' defiance
- 6 Restoring the authority of the Supreme Court
- 7 Concluding remarks
- References
- Hyeok-Joon Rho: 9 Enforcement against Wrongdoing Directors: The Role of the Courts in Korea
- 1 Introduction
- 2 Statutory arrangement: civil and criminal sanction
- 2.1 Civil sanction: director's liability under the Korean Commercial Code and the Capital Market Act
- 2.1.1 Causes of action
- 2.1.2 Special procedures for civil enforcement: derivative action and class action
- 2.2 Criminal sanction: director's liability under the Korean Criminal Code and special criminal statute
- 3 Jurisprudence by the Korean civil courts
- 3.1 Director's misconduct and business judgment
- 3.2 The limitation on damages
- 3.3 Facilitative interpretation of procedural requirement
- 4 Jurisprudence by the Korean criminal courts
- 4.1 Criminal courts' broad interpretations on some vague terms
- 4.2 Business judgment rule in criminal cases?
- 4.3 Criminal charge on LBO transaction
- 5 More complex enforcement: directors in corporate groups
- 5.1 Civil enforcement
- 5.2 Criminal enforcement
- 6 Towards balanced enforcement in Korea.
- 6.1 The criminalization of corporate law and its limits
- 6.2 The role of courts in corporate governance
- References
- Part III: Changing Courts with Civil and Criminal Procedural Reforms
- Kuan-Ling Shen: 10 The Role of the Courts in Civil Disputes in Taiwan
- 1 Introduction
- 2 Courts and civil procedure
- 2.1 From direct adoption of foreign systems to localized reform
- 2.2 Important characteristics of Taiwan's civil procedural law
- 2.3 From party autonomy to court coordination
- 2.3.1 The purpose of the civil procedure
- 2.3.2 Increasing importance of the court's responsibility to elucidate to avoid surprise verdicts
- 2.4 From protection of individual interests to protection of group interests
- 3 Court-connected mediation
- 4 Conclusion
- References
- Kang-Jin Baik: 11 Civil Disputes in Korea and the New Role of the Court
- 1 Introduction
- 2 Features of the Korean civil procedure
- 2.1 Brief history of the Korean civil procedure
- 2.2 Guiding principles of civil procedure in Korea
- 3 Unique features of Korean society and new challenges for the court
- 4 Electronic litigation system as an access route for the court
- 5 Court Mediation Center as a hub for dispute resolution
- 6 A whole new model: active involvement of judges in the process
- 6.1 Emergence of a new model
- 6.2 Transition of oral proceeding
- 6.3 Problem of active elucidation
- 7 Observation
- 8 Conclusion
- References
- Rong-Geng Li: 12 From an Inquisitorial to Adversarial System: The Recent Development in Criminal Justice of Taiwan
- 1 Introduction
- 2 The adversarial system and the inquisitorial system
- 3 The court's duty to investigate before 2002
- 4 The court's duty of investigation of crimes after 2002
- 5 The examination of witness
- 6 The order of trial proceedings
- 7 Plea bargaining
- 7.1 The practice before 2004.
- 7.2 Applicable offenses.