• 발명특허
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• v.37 no.3
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• pp.62-69
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• 2012

대법원 2012. 1. 19. 선고 2010다95390 전원합의체 판결은 민사법원이 특허침해소송에서 특허의 진보성에 대하여도 판단을 할 수 있고 진보성이 부정되는 특허권의 행사는 권리남용으로 허용되지 않는다는 취지로 판시하였다. 이 글에서는 이 사건 판결을 소개하고, 기존 대법원의 입장과 하급심의 실무 및 일본의 운용 실태를 살펴본 후, 향후 특허침해소송에서 진보성 판단 방향 및 구체적 적용기준을 전망하였다.

• Proceedings of the Korean Society of Computer Information Conference
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• 2016.07a
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• pp.141-143
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• 2016

2016년 5월 19일 대법원은 전원합의체판결에서 부동산 매수자가 본인 명의로 소유권이전등기를 하지 않고 등기를 매도인에게서 직접 명의수탁자로 이전하는 제3자간 명의신탁(중간생략등기형 명의신탁)의 경우 명의수탁자가 신탁부동산을 임의로 처분하여도 형사처벌를 할 수 없다는 판결을 하였다. 본 논문에서는 민법과 형법의 교차영역인 명의신탁에서 민사사건의 형사화를 지양했다는 점에서 긍정적인 평가를 하지만 이에 따른 관련법의 정비를 통한 법개정을 제안한다. 즉, 명의신탁에 관한 법제 간 모순을 극복하기 위해 '부동산 실권리자명의 등기에 관한 법률'의 개정이 요구된다. 또한 부동산소유자가 그 등기명의를 타인에게 신탁하기로 하는 명의신탁약정을 맺고 그 등기명의를 명의수탁자에게 이전하는 소위 2자간 명의신탁의 경우도 비범죄화를 함으로써 법체계의 논리성과 통일성을 확보할 필요가 있다.

• The Korean Society of Law and Medicine
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• v.24 no.1
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• pp.131-155
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• 2023

Medical act divides unlicensed medical practice into medical practice by non-medical practitioners and unlicensed practice by medical practitioners. In the past, it was a common approach to strictly distinguish between western and Korean medicine, but the Supreme Court's Decision of December 22, 2016, Do. 21314, provided a new direction regarding the criteria for determining whether a Korean medicine practitioner is acting outside license. This paper analyzes the new criteria in detail, examines the significance of the new criteria, and explores its impact on the dualistic medical system. The difference between the new criteria and the previous criteria in the precedents is that the judgment is not based on the connection between Korean medicine principles and Western medicine principles. It is an advanced standard that actively accepts the overlap and variability of medical practice, moving away from dichotomous thinking that exclusively distinguishes between Korean medicine and Western medicine.

• The Journal of the Korea Contents Association
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• v.13 no.5
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• pp.223-233
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• 2013

As the injunctive effect on the real estate gets announced in public once the seizure register gets exercised in terms of auction and the action of disposal by the real estate owner afterwards becomes nullified in the relationship with a seizure creditor or a successful bidder, the register performed by the cause of disposal action that cannot confront with the seizure or provisional seizure, becomes cancelled in virtue of a registration officer's office. Accordingly, in case of being a singular successor who relatively loses property in a relationship toward the successful bidder due to the injunctive effect of provisional seizure, the identity with building owner and land owner as the precondition of establishing legal superficies according to the custom must be decided based on the time of provisional seizure. The Supreme Court Decision 2010Da52140 delivered on October 18, 2012 has great significance from the fact that it has settled inconsistency in existing precedent cases with such purpose.

• The Korean Society of Law and Medicine
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• v.24 no.3
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• pp.125-153
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• 2023

The Supreme Court's en banc decision on December 12, 2022 (docket number 2016Do21314) presented a new standard for determining whether the use of diagnostic medical devices by Korean medical doctors constitutes oriental medical doctors constitutes unlicensed medical practice. Based on this standard, it was determined that the use of ultrasound by Korean medical doctors was not an unlicensed medical practice. Supreme Court's Decision 2016Du51405 on August 18, 2023, is the first case in which a new standard was applied to determine that an Korean medical doctor's use of electroencephalography to diagnose Parkinson's disease and dementia was not an unlicensed medical practice. The Supreme Court abolished the previous standard that Western medical knowledge and technology should not be required for Korean medical doctors to use medical devices. However, it was unclear whether Western medical diagnosis of Korean medical doctors using diagnostic medical devices would be viewed as an an auxiliary method of diagnosis. Parkinson's disease and dementia are Western medical diagnoses. The Supreme Court judged that the Western medical diagnosis of Korean medical doctors was not an unlicensed medical practice. This clearly explains what an auxiliary method of diagnosis means. In addition, the Supreme Court excluded the principles of development and production of electroencephalography from its judgment criteria. Automatic extraction and automatic reading of test results were also excluded. The criminal court's view that the meaning of oriental medical practice should be clearly and strictly interpreted from the perspective of an oriental doctor, and it was clarified that diagnostic medical devices were excluded from criminal punishment unless it was clear that they were not related to the principle of oriental medical practice. As a result, the Supreme Court made it clear that the use of diagnostic medical devices is excluded from criminal punishment unless it is clear that they are not related to the principles of Korean medicine.

• The Journal of the Korea Contents Association
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• v.12 no.5
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• pp.188-198
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• 2012

Church is one of organizations recognized not as corporation but as private association and therefore its identity and possession of properties must be confirmed by the general theories of the civil law in relation not to corporation but to private association. Different from corporation, the internal relations of private association is primarily regulated by the articles of association. When there is no article of association, ordinary resolution and provisions for incorporated association in the civil law are applied by inference. As for the debt of private association, all the members own it in a quasi-joint manner (article 275 and 278). For the last 50 years, the judicial precedents of the Supreme Court has permitted the partition of church for the Protestant church and ruled that the relationship of properties at the time of partition is the joint ownership by church members at the time of partition. This ruling is different from that of corporation and ordinary principles of law. However, a new judicial precedent (the Supreme Court, 2006. 4. 20, 2004다37775) prescribes that different from corporation, the partition of private association is not allowed. Thus, in order to settle the dispute of private association, the Supreme Court changes its traditional standpoint of allowing partition into denying it. This ruling seems to reflect the necessity of settling dispute above all.

• The Journal of the Korea Contents Association
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• v.22 no.8
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• pp.392-402
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• 2022

The purpose of this study is to examine the protection of third parties of the transactions made by the representative director without resolution adopted by the board of directors. The legal effect of a transaction conducted by a representative director without board resolution in violation of internal restriction or statutory restriction is at issue. The Supreme Court of Korea('SCK') made a new ruling that revised the prior case law(Supreme Court en banc Decision 2015Da45451, Feb. 18, 2021). The SCK in the subject case proclaimed a legal doctrine that 'a third party acting in good faith' shall be protected according to Article 389(3) and 209(2) of the Korean Commercial Act, except that 'a third party with gross negligence' is considered as 'a person acting in bad faith' and thus is excluded from protection. The subject case law can be evaluated as broadening the scope of protection of the third party. In addition, the subject case is meaningful in that it is balance with the related SCK ruling, which considered a third party with gross negligence as a person acting in bad faith while protecting a third party with ordinary negligence in the case of transactions involving apparent representative directors, etc.

• The Journal of the Korea Contents Association
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• v.21 no.8
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• pp.305-314
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• 2021

According to the recent judgment of Supreme Court, in case when the National Health Insurance Service pays the insurance to a victim of torts, and then subrogate the victim's claim for damages, the scope of institution's subrogation should be limited to the amount of the assailant's responsibility rate of the institution charge, and the amount of compensation claimed by the victim to the assailant should be calculated in the method of contributory negligence after deduction. The court has judged that the institution could subrogate the whole amount of institution charge in the limit of assailant's damages, and the method of deduction after contributory negligence should be applied when calculating the assailant's damages to the victim. Supreme Court decision is greatly significant in the aspect of harmonizing the nature of health insurance as property right and social insurance as the beneficiaries could get additional supplement, and also seeking the balance between insurer and beneficiary. With the changed legal principles of Supreme Court in the scope of institution subrogation like this, the necessities to complement the litigation relation, legislation, and institution were suggested.

• The Journal of the Korea Contents Association
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• v.20 no.1
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• pp.460-469
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• 2020

Recently, the Supreme Court pointed out that it would be difficult to maintain the existing opinion any more because the overall conditions that were the basis of the past empirical rule were remarkably changed when estimating the lost earnings of a deceased minor. Thus, the court sentenced en banc decision to extend the maximum working age of manual laborers under the empirical rule to 65 years old. The significance of this ruling is to put an end to social confusion caused by courts' different sentences on the maximum working age under the empirical rule depending on lower court decision, and also to acknowledge the maximum working age of physical laborers by applying the new empirical rule in accordance with entering the aged society. It is still unfortunate to conclude the maximum working age as a specific age and also to estimate the lost earnings of a victim by applying the daily wages of urban laborers. Like this, this study aimed to provide the basic data for guaranteeing a proper compensation for damage to victims by analyzing the issues of rulings related to the maximum working age of manual laborers under the empirical rule, and then complementing imperfections in Korean society that has entered the aged society.

• The Korean Society of Law and Medicine
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• v.18 no.2
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• pp.75-103
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• 2017

There are three types of benefits in the National Health Insurance Act of Korea. Those are the treatment benefit, statutory uninsured medical benefits and arbitrary uninsured medical benefits. Recently the Korea Supreme Court changed its past legal theory and permitted the arbitrary uninsured medical benefits under the strictly exceptional conditions. According to the Supreme Court's decision, the existence of procedural difficulty, the medical necessity and the patient's consent are necessarily required in order to allow the legal exceptions in arbitrary uninsured medical benefits. Among the three requirements, the doctor's explanation and the patient's fully informed consent are the most important essentials in this legal conflict. The requirement concerning the doctor's explanation and the patient's consent roles like a hole in the ice as a breathing hole in the arbitrary uninsured medical benefits. The most cases dismissed after Supreme Court Decision 2010DU27639, 27646 Decided June 18, 2012. were due to the defect of three requirements.