00Kor Low 7-1부속_재 2008.4.25 19:20 페이지i (주)애니프린팅 Esko-Graphics FlowDrive 4.2 -1 Journal of Korean Law Volume 7 Number 1 Law Research Institute & BK 21 Law Seoul National University 00Kor Low 7-1부속_재 2008.4.25 19:20 페이지ii (주)애니프린팅 Esko-Graphics FlowDrive 4.2 -1 00Kor Low 7-1부속_재 2008.4.25 19:20 페이지iii (주)애니프린팅 Esko-Graphics FlowDrive 4.2 -1 INFORMATION ABOUT THE JOURNAL OF KOREAN LAW The Journal of Korean Law is co-published twice annually, in June and December, by Law Research Institute and BK 21 Law of Seoul National University. Please address all correspondence to: College of Law 15-527 Seoul National University Shillim-dong San 56-1, Kwanak-ku Seoul 151-742, Korea Phone: +82-(0)2-880-6867 FAX: +82-(0)2-876-2160 E-mail: [email protected] Homepage: http://www.snujkl.org Subscriptions. Annual subscriptions to the Journal of Korean Law are available for ￦40,000 for domestic subscribers and US$50.00 for foreign subscribers. Price includes surface shipping costs, and is subject to change without notice. Subscriptions are automatically renewed unless notification to the contrary is received. Prepayment is required. Please send payment to the address above. Checks should be made payable to BK 21 Law. Copies of the Journal of Korean Law may also be purchased or subscribed for from the following: Kyobo Book Centre William S. Hein & Co., Inc. 1-1, Jongno, Jongno-gu, 1285 Main Street, Seoul 110-714, Buffalo, NY 14209-1987 Korea U.S.A. homepage: < http://www.kyobobook.co.kr > homepage: < http://www.wshein.com> Manuscripts. The Journal of Korean Law invites the submission of unsolicited manuscripts. Please address manuscripts to the Editor-in-Chief, Journal of Korean Law. Unsolicited manuscripts will be subject to review by referees. Articles of less than 10,000 words are preferred. We regret that manuscripts cannot be returned. Copyright. Authors of accepted manuscripts must transfer copyright to Seoul National University (the Journal of Korean Law). Opinions expressed are those of the contributor and do not represent the views of the Journal of Korean Law, its editors, or Seoul National University. Postmaster. Please send address changes to the Journal of Korean Law, College of Law, Seoul National University, Shillim-dong San 56-1, Kwanak-ku, Seoul 151-742, Korea. EDITORIAL POLICY The Journal of Korean Law assumes that all authors listed in a manuscript have agreed with the following policy on submission of manuscript. 1. Except for the negotiated secondary publication, manuscript submitted to the Journal must be previously unpublished and not be under consideration for publication elsewhere. 2. All submissions should be accompanied by a cover letter and a brief abstract. All necessary contact information should also be included. The abstract should be concise, less than 200 words, and describe concisely purpose, methods, and argument of the study. Up to ten keywords should be listed at the bottom of abstract to be used as index terms. The Journal strongly encourages contributors to email their manuscripts in Microsoft Word format to [email protected]. Citations in manuscripts should appear in footnotes, not endnotes, and follow The Bluebook: A Uniform System of Citation (18th ed. 2005). The Journal also encourages the use of gender-neutral language. 3. All published manuscripts become the permanent co-property of Law Research Institute and BK 21 Law of Seoul National University and may not be published elsewhere without written permission. ISSN 1598 -1681 00Kor Low 7-1부속_재_수정 2008.4.26 10:1 페이지iv (주)애니프린팅 Esko-Graphics FlowDrive 4.2 -1 ADVISORY BOARD William P. Alford Bernard S. Black Harvard University University of Texas at Austin Jerome A. Cohen John O. Haley New York University Washington University in St. Louis Young Moo Kim Jung Hoon Lee Kim & Chang, Korea Bae, Kim & Lee, Korea Tae Hee Lee Jean Morange Lee & Ko, Korea University of Paris 2 Pantheon-Assas Woong Shik Shin Young Moo Shin Shin & Shin, Korea Shin & Kim, Korea Malcolm Smith Sang Hyun Song University of Melbourne International Criminal Court Frank K. Upham Hoil Yoon New York University Yoon & Yang, Korea Michael K. Young University of Utah EDITORIAL BOARD Editor-in-Chief Hwa-Jin Kim Seoul National University Editors Seung Wha Chang Stephen Choi Seoul National University New York University Tom Ginsburg Sang Gon Kim University of Illinois Lee & Ko, Korea Kenneth S. Korea Chang Hee Lee Dechert Silicon Valley Seoul National University Keun-Gwan Lee John Ohnesorge Seoul National University University of Wisconsin Ghyo Sun Park Joon Park Shin & Kim, Korea Seoul National University Adam C. Pritchard Chi Yong Rim University of Michigan Bae, Kim & Lee, Korea Hyun Woong Song Sunsuk Yang Evergreen Law Group, Korea Kyungpook National University Young-Tae Yang Horizon Law Group, Korea Assistant Editor Junho Kim Seoul National University 00Kor Low 7-1부속_재 2008.4.25 19:20 페이지v (주)애니프린팅 Esko-Graphics FlowDrive 4.2 -1 iii Information About the Journal of Korean Law iv Advisory Board / Editorial Board Articles 1 Korean Legal System and the Human Rights of Persons with Mental Disorders: Current State and Challenges Kyong-Whan Ahn 25 The Future Direction of Takeover Law in Korea Stephen J. Choi 51 Why do We Pursue “Oral Proceedings” in Our Legal System? Hyun Seok Kim 81 Journal Against the Viability of Private Enforcement: Focusing on Korean Environmental Law Hong Sik Cho of Comments 109 Litigating in Korea: A General Overview of the Korean Civil Procedure Youngjoon Kwon Korean 145 The Prospect for ISP’s Liability in UGC-Related Cases in Korea Jun-Seok Park Law 2007 Beseto Conference 157 Between Dreams and the Reality: Making of the Administrative Procedure Act in China Xixin Wang 183 The Legal System of Nature Conservation in Japan: From the Viewpoint of Biodiversity Hisashi Koketsu 197 The Chinese Financial Conglomerate and Its Company Law Implications Li Guo 217 Environmental Public Interest Litigation: When will it Flourish in China? Jin Wang 229 New Regulatory Framework for Units of Non-regulated Collective Investment Schemes in Japan Hiroyuki Kansaku 00Kor Low 7-1부속_재 2008.4.25 19:20 페이지vi (주)애니프린팅 Esko-Graphics FlowDrive 4.2 -1 01Kyong-Whan Ahn다시 2008.4.25 19:21 페이지1 (주)애니프린팅 Esko-Graphics FlowDrive 4.2 -1 Korean Legal System and the Human Rights of Persons with Mental Disorders: Current State and Challenges Kyong-Whan Ahn* Abstract Medical and social statistics present the alarming reality that one in four people will suffer from mental illness at some point in their lives. Yet, in most countries, mental health is one of the least cared about issues. Korea is no exception. Here people with mental disorders have been subject to prejudice, stigma, discrimination and marginalization in all aspects of their social lives. Korean legal schemes and practices reveal a grave injustice in the treatment of patients and the administration of the mental health system. Yet, to this date, the Korean legal community has not shown the slightest of interests in this matter. This paper, which is long overdue, aims at bringing this painful issue to public attention, with a plea for attentive care for this vulnerable group of people. The current status of persons with mental illnesses is analyzed critically and suggestions for improvement are made with a special emphasis on the necessity for a comprehensive national report, as undertaken in both Australia and U.S.A. I. Introduction According to a WHO report in 2001, mental health affects 450 million people and one in four of us will suffer from mental illness at some time in our lifetimes.1) Human rights abuses of mentally disordered people, particularly those who lack sufficient social capital to stand up for themselves against mistreatment for the reason of their illness and who are retained voluntarily or involuntarily in * Chairperson, National Human Rights Commission of Korea; Professor of Law, Seoul National University. 1) MENTAL HEALTH — GLOBAL POLICIES AND HUMAN RIGHTS, at xi (Peter Morrall & Mike Hazelton eds., Whurr Publishers 2002). 1 01Kyong-Whan Ahn다시 2008.4.25 19:21 페이지2 (주)애니프린팅 Esko-Graphics FlowDrive 4.2 -1 Journal of Korean Law, Vol. 7, No. 1, 2007 unregulated establishments, can be extremely serious and brutal.2) A mental health care system should be ensured for the protection of the rights of people with mental disorders, who are among the world’s most vulnerable groups. They are often subjected to stigma, discrimination and marginalization in all societies, which increases the likelihood of violations of their human rights. Mental disorders can sometimes impair decision-making or legal capacity, and the affected-people may not always seek or accept medical treatment for their problems. Rarely, people with mental illness may put themselves or others at risk because of their impaired decision-making ability. In fact, the risk of violence or harm associated with mental disorders is relatively small.3) Common misconceptions on this matter should not be allowed to influence legislation of mental health laws.4) The lives of people with mental disorders have been one of the least addressed issues in the contemporary Korean society, even in comparison to persons with physical disabilities whose difficulties and hardships have come into spotlight in recent years. This article aims to bring this topic into the arena of ‘law and society’ with a plea for attentive care of the fellow jurists to these unduly neglected people in our society. Part II of the article briefly overviews the international and domestic legal frameworks on mental health care. In Part III, the article highlights current status of the mentally disabled persons with selected statistics. Part IV discusses the roles of the National Human Rights Commission of Korea in the promotion and protection of the rights of the citizens with mental disorders, and Part V analyses flaws and shortcomings in the legal system and practice of mental health care in Korea, as have been repeatedly raised in recent years.