• Title/Summary/Keyword: 부작위

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Inhalt und Probleme von dem Entwurf des Änderungsgesetzes zum koreanischen Verwaltungsprozessgesetz - Zugleich eine kritische Betrachtung zum Änderungsgesetz für Reform und Entwicklung des Verwaltungsprozesses - (행정소송법 개정안의 내용 및 문제점 - 특히 행정소송의 개혁과 발전을 위한 비판적 고찰을 중심으로 -)

  • Chung, Nam-Chul
    • Journal of Legislation Research
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    • no.44
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    • pp.283-314
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    • 2013
  • Das koreanische Verwaltungsprozessgesetz (KVwPG) wurde am 24. 8. 1951 kodifiziert. Es hat bisher mehrmals $ge{\ddot{a}}ndert$. Der Regierungsentwurf des KVwPG-${\ddot{A}}nderungsgesetzes$ vom 30. 3. 2013, ist fast $drei{\ss}ig$ jahre nach der Novellierung des KVwPGs 1984 erfolgt und auch spiegelt sich die Erfolge der $Bem{\ddot{u}}hungen$ in Literatur und Rechtsprechung wider. Aber es gibt nicht nur einige Unterschiede zwischen dem Regierungsentwurf und dem Entwurf der Kommission des Justizministeriums zur ${\ddot{A}}nderung$ des KVwPG (dem sog. Kommissionsentwurf), sondern auch der Regierungsentwurf ist theoretisch nicht problemlos. Vor allem sind Begriff und Umfang der neuen Klagebefugnis nicht klar. Des weiteren sind in ${\S}$ 12 des Regierungsentwurfs die Klagebefugnis mit dem $Rechtsschutzbed{\ddot{u}}rfnis$ identisch gesehen. Der $Rechtsschutzbed{\ddot{u}}rfnis$ nach ${\S}$ 12 Satz 2 des Regierungsentwurfs kann aus meiner Sicht relativ eng ausgelegt. Die $Einf{\ddot{u}}hrung$ der Verpflichtugnsklage in den Regierungsentwurf ist sehr gut, aber es kann trotzdem als problematisch angesehen werden dass Feststellungsklage der Rechtswidrigkeit der Unterlassung und Anfechtungsklage gegen Ablehnung bestehen noch. Der Begriff der Unterlassung ist $unn{\ddot{o}}tig$ und auch strikt. $Vorl{\ddot{a}}ugier$ Rechtsschutz des Regierungsentwurfs ist unter dem Gesichtpunkt der Rechtsschutz der $B{\ddot{u}}rger$ noch zu verbessern, aber doch das Modell des japanischen Verwaltungsprozessgesetzes darf nicht befolgt werden. Aufbau und System des $vorl{\ddot{a}}ufigen$ Rechtsschutzes sind auch nicht eindeutig. Nach Gegenstand und Klageart muss das Institut des $vorl{\ddot{a}}ufigen$ Rechtsschutzes in Ordnung gebracht werden. Es ist nicht ${\ddot{u}}berzeugend$ dass die $Einw{\ddot{a}}nde$ gegen die $Einf{\ddot{u}}hrung$ der vorbeugenden Unterlassung mit dem Gewaltenteilungsprinzip und der $Eigenst{\ddot{a}}ndigkeit$ der Verwaltung erhoben sind. $Dar{\ddot{u}}ber$ hinaus ist ADR (Alternative Dispute Resolution) zu beachten. In Bezug darauf ist Rechtgrundlage $f{\ddot{u}}r$ Mediation in der Verwaltungsgerichtsbarkeit zu stellen.

공정거래법상 시정조치의 문제점

  • 박해식
    • Journal of Korea Fair Competition Federation
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    • no.108
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    • pp.5-13
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    • 2004
  • 일반적으로 행정법 위반행위에 대하여는 고의나 과실을 요하지 않는다고 하지만, 공정거래법 위반행위에 대하여는 그 자체가 곧바로 형벌의 구성요건을 이루고 있다는 점에 비추어 특히 법위반 사실에 대한 고의요건을 배제하기는 어렵지 않을까 생각된다. 부당지원행위에 한정하여 본다면, 하나 하나의 행위만으로는 부당성이 인정되기 어렵다 하더라도 수 개의 행위를 포괄하여 부당성을 인정할 여지가 있다면 수 개의 행위를 포괄하여 하나의 법위반 행위를 구성한다고 이론구성을 할 수 있다고도 생각해 볼 수 있지 않을까 생각된다. 대법원 2004. 4.9. 선고 2001두6197 판결이 자금지원행위는 자금을 지원할 의도로 자산이나 용역 등의 거래로 인한 대가인 자금을 변제기 이후에도 회수하지 아니하여 지원객체로 하여금 그 자금을 운용토록 함으로써 그이자 상당의 수익을 얻게 하는 것과 같은 부작위행위도 포함한다고 해석함이 상당하다고 한 취지는 이러한 관점을 전제로 한 것이 아닌가 생각된다. 이 점에 관한 논의의 활성화가 기대된다.

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Third Party's Legal Interest Protection from Commercialization of Drones -A focus on Decision of the German District Court- (카메라 장착 드론에 대한 지상 제3자의 법익 보호 - 독일의 하급심 판결을 중심으로 -)

  • Kim, Sung-Mi
    • The Korean Journal of Air & Space Law and Policy
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    • v.35 no.1
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    • pp.3-32
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    • 2020
  • With controlling Drones, although it was discussed in the previous study which showed a possibility. Which is personality and property rights of third parties could be violated while operating the drone with a video camera. But It's hard to find out precedents related to drones in Korea. In case of that someone try to control the drone which is equipped with a camera in a yard of neighborhood, the German District Court (Potsdam) considered an operator of drone has little bit of careless to do his duty and admit nonfeasance claim in the owner of the one's property for prevention to repetition of similar situation according to a nonfeasance claim for prevention to Section 1004 (1) sentence 2 of the German Civil Code(BGB). The drone which is equipped with a camera have possibilities to disrupt property and personal rights of the owner. Because a danger in repetition is getting larger regarding the violation of law. Moreover, there is a case that someone shot down the drone which is equipped with a camer. Because it has a risk to interrupt private life and cause some dangerous in our life. The German district court(Riesa) recently have considered that controlling the drone with a camera in private spaces is illegal as a violation of personal life. In addtion to, the action of property owner shot down drone is a legal according to § 228 of the German Civil Code(BGB) which is caleed "Necessity". Although it is difficult to apply to foreign cases directly to Korea, similar cases are likely to be occurred in Korea. The decision of the German District Court showed implications to Korea. As demand for the camera-equipped drone increases in Korea, it is time to discuss specific measures for drone violations.

Thermal Dispersion Analysis Using Semi-Active Particle Tracking in Near Field Combined with Two-Dimensional Eulerian-Lagrangian Far Field Model (근역에서 부력입자추적모형을 적용한 Eulerian-Lagrangian 결합에 의한 온수확산)

    • Journal of Korean Society of Coastal and Ocean Engineers
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    • v.10 no.2
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    • pp.73-82
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    • 1998
  • In order to simulate surface discharged heat dispersion in costal area, a 2-dimensional Eulerian-Lagrangian model for far field and semi-active particle tracking random walk model in near field has been combined. The mass of discharged heat water in near field has treated as particles with buoyancy and this is eventually converted to horizontal additive dispersion in random walk equations. This model is applied to both a simplified coastal geometry and a real site. In simple application it can simulate plume-like characteristics around discharging point than a near field-model, CORMIX/3. Actual application in the Chonsu Bay shows farther spreading of heat water in near field comparing the observed data, and this shows that the developed model might be applied with satisfaction.

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A Study on Fire Origin Determination Methods by Fire Patterns (화재패턴에 의한 발화부판단 방법에 관한 연구)

  • Kim, Young Chul;Lee, Su Kyung
    • 한국방재학회:학술대회논문집
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    • 2011.02a
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    • pp.63-63
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    • 2011
  • 화재란 사람의 의도에 반하거나 고의에 의해 발생하는 연소현상으로서 소화시설 등을 사용하여 소화할 필요가 있는 것을 말한다. 사람의 의도에 반한다고 하는 것은 과실에 의한 화재를 의미하며 화기취급 중 발생하는 실화뿐만 아니라 부작위에 의한 자연발화도 포함하며, 고의에 의한다고 하는 것은 일정한 대상에 대하여 피해발생을 목적으로 화재발생을 유도하였거나 직접 방화한 경우를 말한다. 연소현상이라 함은 가연성 물질이 산소와 결합하여 열과 빛을 내며 급속히 산화되어 형질이 변경되는 화학반응을 말한다. 소화시설 등을 사용하여 소화할 필요가 있다는 것은 화재란 연소현상으로서 소화의 필요성이 있어야 하며 소화의 필요성의 정도는 소화시설이나 그와 유사한 정도의 시설을 사용할 수준 이상이어야 한다. 화재원인조사란 발화부를 판단하고 화재에 이르게 된 발화원을 규명하며, 발화부로부터 연소확대된 경과를 조사하는 일련의 행위로서 화재원인조사시 가장 중요한 사항은 발화부 판단인 바, 이는 화재원인이 발화부에만 존재하기 때문이다. 최근에는 다양한 소재의 사용으로 인해 일단 화재로 진행될 경우 인명 및 재산상 피해가 증가하게 되어 있으며, 이로 인해 화재조사시 화학, 물리, 전기, 건축, 기계, 소방 등 다양한 지식과 화재현장에 대한 이해가 요구된다. 화재현장 조사시 발화부 판단의 과학적 접근은 매우 중요한 것으로서, 화재원인의 명쾌한 규명으로 책임한계 구분은 물론, 유사사고의 재발방지를 위한 연구가 필요하다. 본 연구에서는 기 발생한 화재사례에서 얻은 화재패턴을 분석하여 얻은 자료를 통해 발화부를 판단할 수 있는 조사방법을 다음과 같이 제시하였다. 1) 화재시 열전달과 화염확산 과정에서 건축구조물, 내장재, 집적물 및 각종 설치물의 구조, 재질 등에 따라 다양한 화재패턴을 형성하게 됨을 알 수 있다. 2) 화재패턴의 종류로는 화재플럼에 의한 삼각형, 주상, V, U 패턴 등이 있으며, 연소 생성물인 화염, 연기, 열 등에 의해 다양한 형태를 보임을 알 수 있다. 3) 위와 같은 결과를 종합하여 연소의 상승성, 불꽃 및 연기 흔적, 열에 의한 흔적 등에 의해 연소의 방향성을 알 수 있다. 4) 결국 화재현장에서 명확한 화재원인을 규명하기 위해서는 화재패턴에 의해 연소확대과정을 역으로 추적하여 발화부를 결정한 다음, 발화부내에서 화재원인을 찾아내야 할 것이다.

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Legal Consideration of Transfer Refusal by 119 Rescuers (119구급대의 이송거절 및 거부에 대한 법적 고찰)

  • Bae Hyun-A;Lee Sang-Jin;Kim Chan-Woong;Lee Kyung-Hwan
    • Fire Science and Engineering
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    • v.19 no.4 s.60
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    • pp.47-56
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    • 2005
  • The regulation on organization and operation of rescue and aid party was amended. This Regulation is designed to provide legal formality in order to protect not only the patients' right but also 119 rescuers from liability, which is due to treatment refusal by patient and the discretionary refusal of transfer by 119 rescuers on the non-emergency situation. This study looked over the constitute of violation of emergency medical service act related to the discretionary refusal of 119 rescuers, the criminal liability owing to omission and the possibility of national indemnities on the damage of patients. This study also analyzed the courts' decision and attitude by exploring overseas judicial precedents and examined what should be considered on the execution of the newly enacted law. Finally, this study put emphasis on the importance of medical director's control, documentation of every procedure, 119 rescuer's authorization on the refusal of transfer by securing patient's informed consent.

A Study on Appeal System according to Disciplinary Punishment of Police Officers (경찰공무원의 징계결과에 따른 소청제기에 관한 연구)

  • Kim, Sang-Woon;Choi, Hung-Cheol
    • The Journal of the Korea Contents Association
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    • v.13 no.11
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    • pp.885-893
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    • 2013
  • Police officers interact with the citizen a lot, they have high possibility of corruption, graft, and conflict with the citizen. The Police have governmental authority and regulation right, which requires police officers to have high ethical consciousness. because of this, disciplinary action upon them has higher standard. According to the actual statistical data between 2008 and 2012, showed that only 801 police officers were disciplined in 2008. But in 2009, average 1,100 police officers were disciplined. To solve the problem of unreasonable discipline, government is enforcing an Appeal System. Appeal system is a special system which allows government employees to make a formal objection against unfavorable discipline. Through Appeal system, many police officers were saved from being disciplined. Discipline given to the police officers were decided to be invalid, or to be reducted. The data showed that approximately 25% of police officers were saved by this system. As a research was done about a correlation between disciplinary policy and entreaty, correlation between entreaty quotation and working department, to look in to the correlation between discipline and appeal system. The result showed that certain characteristic existed depending on the substance.

A Study on Jurisdiction under the International Aviation Terrorism Conventions (국제항공테러협약의 관할권 연구)

  • Kim, Han-Taek
    • The Korean Journal of Air & Space Law and Policy
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    • v.24 no.1
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    • pp.59-89
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    • 2009
  • The objectives of the 1963 Tokyo Convention cover a variety of subjects, with the intention of providing safety in aircraft, protection of life and property on board, and promoting the security of civil aviation. These objectives will be treated as follows: first, the unification of rules on jurisdiction; second, the question of filling the gap in jurisdiction; third, the scheme of maintaining law and order on board aircraft; fourth, the protection of persons acting in accordance with the Convention; fifth, the protection of the interests of disembarked persons; sixth, the question of hijacking of aircraft; and finally some general remarks on the objectives of the Convention. The Tokyo Convention mainly deals with general crimes such as murder, violence, robbery on board aircraft rather than aviation terrorism. The Article 11 of the Convention deals with hijacking in a simple way. As far as aviation terrorism is concerned 1970 Hague Convention and 1971 Montreal Convention cover the hijacking and sabotage respectively. The Problem of national jurisdiction over the offence and the offender was as tangled at the Hague and Montreal Convention, as under the Tokyo Convention. Under the Tokyo Convention the prime base of jurisdiction is the law of the flag (Article 3), but concurrent jurisdiction is also allowed on grounds of: territorial principle, active nationality and passive personality principle, security of the state, breach of flight rules, and exercise of jurisdiction necessary for the performance of obligations under multilateral agreements (Article 4). No Criminal jurisdiction exercised in accordance with national law is excluded [Article 3(2)]. However, Article 4 of the Hague Convention(hereafter Hague Article 4) and Article 5 of the Montreal Convention(hereafter Montreal Article 5), dealing with jurisdiction have moved a step further, inasmuch as the opening part of both paragraphs 1 and 2 of the Hague Article 4 and the Montreal Article 5 impose an obligation on all contracting states to take measures to establish jurisdiction over the offence (i.e., to ensure that their law is such that their courts will have jurisdiction to try offender in all the circumstances covered by Hague Article 4 and Montreal Article 5). The state of registration and the state where the aircraft lands with the hijacker still on board will have the most interest, and would be in the best position to prosecute him; the paragraphs 1(a) and (b) of the Hague Article 4 and paragraphs 1(b) and (c) of the Montreal Article 5 deal with it, respectively. However, paragraph 1(b) of the Hague Article 4 and paragraph 1(c) of the Montreal Article 5 do not specify if the aircraft is still under the control of the hijacker or if the hijacker has been overpowered by the aircraft commander, or if the offence has at all occurred in the airspace of the state of landing. The language of the paragraph would probably cover all these cases. The weaknesses of Hague Article 4 and Montreal Article 5 are however, patent. The Jurisdictions of the state of registration, the state of landing, the state of the lessee and the state where the offender is present, are concurrent. No priorities have been fixed despite a proposal to this effect in the Legal Committee and the Diplomatic Conference, and despite the fact that it was pointed out that the difficulty in accepting the Tokyo Convention has been the question of multiple jurisdiction, for the reason that it would be too difficult to determine the priorities. Disputes over the exercise of jurisdiction can be endemic, more so when Article 8(4) of the Hague Convention and the Montreal Convention give every state mentioned in Hague Article 4(1) and Montreal Article 5(1) the right to seek extradition of the offender. A solution to the problem should not have been given up only because it was difficult. Hague Article 4(3) and Montreal Article 5(3) provide that they do not exclude any criminal jurisdiction exercised in accordance with national law. Thus the provisions of the two Conventions create additional obligations on the state, and do not exclude those already existing under national laws. Although the two Conventions do not require a state to establish jurisdiction over, for example, hijacking or sabotage committed by its own nationals in a foreign aircraft anywhere in the world, they do not preclude any contracting state from doing so. However, it has be noted that any jurisdiction established merely under the national law would not make the offence an extraditable one under Article 8 of the Hague and Montreal Convention. As far as international aviation terrorism is concerned 1988 Montreal Protocol and 1991 Convention on Marking of Plastic Explosives for the Purpose of Detention are added. The former deals with airport terrorism and the latter plastic explosives. Compared to the other International Terrorism Conventions, the International Aviation Terrorism Conventions do not have clauses of the passive personality principle. If the International Aviation Terrorism Conventions need to be revised in the future, those clauses containing the passive personality principle have to be inserted for the suppression of the international aviation terrorism more effectively. Article 3 of the 1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, Article 5 of the 1979 International Convention against the Taking of Hostages and Article 6 of the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation would be models that the revised International Aviation Terrorism Conventions could follow in the future.

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Product Liability and Causation in Criminal Law (형법상 제조물책임과 인과관계의 확정)

  • Lee, Seok-Bae
    • The Korean Society of Law and Medicine
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    • v.17 no.2
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    • pp.3-28
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    • 2016
  • While product liability has been settled as a technical term in civil law, criminal law does not commonly accept technical term for it. Not like civil law, product liability in criminal law point outs individual responsibility and disability of normative order. Meaning that causation between individual's action of violation of duty and the result of danger of legal interest or infringement of legal interest must be proved. In criminal law excluding "non-result-constituted crimes (Unternehmensdelikt)", charge of injuring, accidental infliction of injury, homicide or involuntary manslaughter is problematic in product liability. Of course, it is necessary to distinguish whether the action related to the outcome is act or ommission. Also the causal relationship between the action and the result must be proved, and the intention or negligence should be recognized. In this paper, it analyzes cases that were problematic in Korea, Germany, Spain, etc. Mainly focusing on the problems revealed in the determination of causal relationship, especially recognizing criminal liability related to products. Furthermore it is followed by the view of reviewing the cause-and-effect relationship by 2 steps, dividing natural scientific causation and the normative causal relationship. In this process, to acknowledge criminal product liability in accordance with recognizing cause-and-effect relationship, there should be general risk of specific substance causing the outcome. This only premise can be meaningful to examine the casual relationship from specific cases. As it shows in some cases and theories, it is not contradicting general law of cause and effect by determining specific causal relationship by free evaluation of evidence if a general causal relationship does not exist. Also since judge's testimony does not hold a dominant position from rule of thumb, it is possible to recognize specific causal relationship. However this paper takes position that if there is no objective and reasonably undeniable cause and effect law. If there is no objective and reasonably undeniable causal law, which is the premise for recognizing concrete causal relations, judge should sentence guilty according to "in dubio pro reo" principle. In addition, it is not allowed for the defendant to burden unproven fact by free evaluation of evidence which has an effect of shift of burden of proof.

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Patient's 'Right Not to Know' and Physician's 'Duty to Consideration' (환자의 모를 권리와 의사의 배려의무)

  • Suk, HeeTae
    • The Korean Society of Law and Medicine
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    • v.17 no.2
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    • pp.145-173
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    • 2016
  • A patient's Right to Self-Determination or his/her Right of Autonomy in the Republic of Korea has traditionally been understood as being composed of two elements. The first, is the patient's Right to Know as it pertains to the physician's Duty to Report [the Medical Situation] to the patient; the second, is the patient's Right to Consent and Right of Refusal as it pertains to the physician's Duty to Inform [for Patient's Consent]. The legal and ethical positions pertaining to the patient's autonomous decision, particularly those in the interest of the patient's not wanting to know about his/her own body or medical condition, were therefore acknowledged as passively expressed entities borne from the patient's forfeiture of the Right to Know and Right to Consent, and exempting the physician from the Duty to Inform. The potential risk of adverse effects rising as a result of applying the Informed Consent Dogma to situations described above were only passively recognized, seen merely as a preclusion of the Informed Consent Dogma or a denial of liability on part of the physician. In short, the legal measures that guarantee a patient's 'Wish for Ignorance' are not currently being understood and acknowledged under the active positions of the patient's 'Right Not to Know' and the physician's 'Duty to Consideration' (such as the duty not to inform). Practical and theoretical issues arise absent the recognition of these active positions of the involved parties. The question of normative evaluation of cases where a sizable amount of harm has come up on the patient as a result of the physician explaining to or informing the patient of his/her medical condition despite the patient previously waiving the Right to Consent or exempting the physician from the Duty to Inform, is one that is yet to be addressed; that of ascertaining direct evidence/legal basis that can cement legality to situations where the physician foregoes the informing process under consideration that doing so may cause harm to the patient, is another. Therefore it is the position of this paper that the Right [Not to Know] and the Duty [to Consideration] play critical roles both in meeting the legal normative requirements pertaining to the enrichment of the patient's Right to Self-Determination and the prevention of adverse effects as it pertains to the provision of [unwanted] medical information.

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