• 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.

• Archives of Plastic Surgery
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• v.43 no.5
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• pp.402-410
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• 2016

Background In an increasing number of lawsuits doctors lose, despite providing preoperative patient education, because of failure to prove informed consent. We analyzed judicial precedents associated with insufficient informed consent to identify judicial factors and trends related to aesthetic surgery medical litigation. Methods We collected data from civil trials between 1995 and 2015 that were related to aesthetic surgery and resulted in findings of insufficient informed consent. Based on these data, we analyzed the lawsuits, including the distribution of surgeries, dissatisfactions, litigation expenses, and relationship to informed consent. Results Cases were found involving the following types of surgery: facial rejuvenation (38 cases), facial contouring surgery (27 cases), mammoplasty (16 cases), blepharoplasty (29 cases), rhinoplasty (21 cases), body-contouring surgery (15 cases), and breast reconstruction (2 cases). Common reasons for postoperative dissatisfaction were deformities (22%), scars (17%), asymmetry (14%), and infections (6%). Most of the malpractice lawsuits occurred in Seoul (population 10 million people; 54% of total plastic surgeons) and in primary-level local clinics (113 cases, 82.5%). In cases in which only invalid informed consent was recognized, the average amount of consolation money was KRW 9,107,143 (USD 8438). In cases in which both violation of non-malfeasance and invalid informed consent were recognized, the average amount of consolation money was KRW 12,741,857 (USD 11,806), corresponding to 38.6% of the amount of the judgment. Conclusions Surgeons should pay special attention to obtaining informed consent, because it is a double-edged sword; it has clinical purposes for doctors and patients but may also be a litigation strategy for lawyers.

• Journal of Korean Neurosurgical Society
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• v.45 no.5
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• pp.293-296
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• 2009

Objective : Pain has long been regarded as a subjective symptom. Recently, however, some regard a type of intractable chronic pain as a disease. Furthermore, chronic persistent pain becomes a cause of permanent impairment (PI) In 6th edition, the American Medical Association (AMA) Guides has rated the pain as a PI. In Korea, pain has been already been rated as a PI. Here, we examined the present status and the prospect of disability evaluation for the pain in Korea. Methods : Pain can be rated as a PI by the Workmen's Compensation Insurance Act (WCIA) and Patriots and Veterans Welfare Corporation Act (PVWCA) in Korea. We examined the definition, diagnostic criteria and grades of the pain related disability (PRD) in these two acts. We also examined legal judgments, which were made in 2005 for patients with severe pain. We also compared the acts and the judgments to the criteria of the 6th AMA Guides. Results : The PRD can berated as one of the 4 grades according to the WCIA. The provisions of the law do not limit the pain only for the complex regional pain syndrome (CRPS). The PRD can berated as one of the 3 grades by the PVWCA. If there were objective signs such as osteoporosis, joint contracture and muscle atrophy corresponding to the CRPS, the grade is rated as 6. When the pain always interferes with one's job except easy work,the grade is rated as high as 5. In Korea, judicial precedents dealt the pain a sa permanent disability in 2005. Conclusion : Although there were no objective criteria for evaluation of the PRD, pain has been already rated as a PI by the laws or judicial precedents, in Korea. Thus, we should regulate the Korean criteria of PRD like the AMA 6th edition. We also should develop the objective tools for evaluation of the PRD near in future.

• Journal of Arbitration Studies
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• v.12 no.2
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• pp.337-372
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• 2003

Given the difficulties investors would encounter in pleading and proving their claims in court, they may well be better off in a system where less attention is paid to the law and more to the equities of the actual dispute before the arbitration panel. While this is not a system where accountability and predictability of results can be achieved, investors may fare better than they might expect. It follows then that if equitable considerations enhance rather than subtract from investors' chances of recovery, then investors need not worry about the consequences of the arbitrators' failure to apply the law. This article tracked the evolution of the arbitration process, through amendments to the pertinent securities arbitration codes of procedure, from an informal proceeding into a quasi-judicial one. Subsequently, I examined the practical difficulties arbitrators encounter in their efforts to apply the law. The Court in McMahon assumed arbitrators would apply the law and that the “manifest disregard” standard would provide sufficient judicial oversight to ensure that they did. But there is no meaningful review of arbitration awards to assure arbitrators are applying the law. Arbitration awards have no value as precedent for future arbitrations. Accordingly, there appears to be little reason to write such an award, particularly if the end result is an award immune from challenge no matter how the panel ruled. In these days, securities arbitration as a disputes resolution system is becoming a more popular practice. The trend of the courts in America has been to enforce arbitration agreements. Moreover arbitration helps alleviate some of the burden of a heavy caseload from the judiciary and is a viable method to resolve disputes in a relatively quick and efficient manner. Therefore I think it would be necessary to introduce securities arbitration system to our disputes resolution system Compared to American practices, there could be, of course, many differences in recognition on arbitration and legal structure in our country. Thus it will be an assignment to consider seriously and carefully what kind of securities arbitration system will be proper for us.

• Journal of Arbitration Studies
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• v.23 no.1
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• pp.153-175
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• 2013

The issue of patent validity becomes a subject of dispute under the FTA and there is a definite difference of opinion between China, Japan, and Korea. In other words, the validity of a judgment on the patent was exclusively under the jurisdiction of the administrative agency at a particular patent office. Thus, the issue arises where there is a potential judgment on patent validity. In this case, the Supreme Court rather than the patent office can offer a judgment from a judicial institution and can make a judgment in the case of a medication. In China, however, the lowest possibility of judgment on patent validity is predicted to occur in judicial institutions. Such a judgment is recognized as the Grand Bench Decision in Korea, and the court can judge the patent validation rather than the patent office. That is just the case in the Kilby case-it is invalid for reasons obvious in Japan. Therefore, there is a substantial difference between the three countries. Especially in Japan, where after the Kilby case, they revised the patent law in 2004 to introduce Article 104-3, placing the judgment of patent validity in the court, even if the "Apparentness"is not requisite. Per this law, infringers can argue for patent invalidity not only the judgment of the patent invalidation but also the infringement lawsuit. From the point of view of Japan, Korea became the judgment of trademark validation by extension and obvious cases can become directly to judge through the Supreme Court about the right that needs to examinations and registrations. In terms of the mediation, it also provides a clue about the judgment of intellectual property validation and expands the scope of the mediation in the future. From now on, in order to have active mediation procedures in the three countries, China, Japan, and Korea would need to unify regulations and application scopes for mediation in the FTA negotiation and to look forward to achieve a vigorous mediation approach.

• Convergence Security Journal
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• v.18 no.2
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• pp.113-121
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• 2018

The The ROK military announced a reform proposal for the National Defense Reform 2.0 in 2018 in order to substantially guarantee the constitutional rights and human rights of the soldiers and to meet the demands of the military judicial reform. In order to establish a fair and independent military judicial system through such reforms, the Supreme Military Court was abolished to eradicate the controversy in the army and to abolish the system of the judges' And professionalism is systematically ensured so that judges can be judged only by law and conscience. This military reform proposal is so dramatic that it has a vocal voice of opposition, but the military should no longer be an exception to democracy and should try not to get caught in the stigma of human rights blindness.

• Journal of Arbitration Studies
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• v.31 no.1
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• pp.129-154
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• 2021

As our society and industry develop, disputes are becoming ever more complicated and diversified to the point that it is alleged that dispute resolution by court proceedings has certain limits and setbacks. Therefore, it is commonly suggested that mediation by a qualified mediator should come as an alternative method, and there have been many attempts to establish and provide mediation service in the courts and government authorities. To comply with a party's autonomy, which is the essential basis of mediation, and to promote the use of mediation, it is highly recommended that private mediation, rather than court-driven or administrative mediation, shall take the initiative. In the meantime, despite a number of academic research and attempts to increase the awareness and use of mediation nationwide, we have not yet seen meaningful developments due to the longstanding misunderstanding and discredit of mediation. In contrast, Italy has begun to revitalize mediation by enacting 'Legislative Decree No. 28/2020' following the 'Directive 2008/52EC' of the European Parliament and encouraging the so-called via-mediation policy. It is acknowledged to have significantly contributed to the development of private mediation in Italy and the increased use of mediation as a dispute resolution method. It shall be particularly noted that Italy's mediation proceedings have certain traits, including preliminary mediation meetings, mandatory involvement of legal counsel, and tax benefits for the settled cases by mediation. Italy's efforts would provide people with meaningful lessons and perspectives. As society strives to promote private mediation to distribute and utilize the judicial resources' inefficient ways, institutions need to develop practical measures to increase the number of civil and commercial disputes in the mediation proceedings. To that end, legislative efforts to enact relevant laws necessary to provide incentives to disputing parties and establish integrated education and certification programs to train qualified mediators need to start soon.

• Korean Journal of Forensic Psychology
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• v.13 no.1
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• pp.23-52
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• 2022

In this study, focused group interviews with 24 incumbent judges were conducted on how they conceptualize public opinion and what attitude they take toward it in relation to judicial trials. The contents of the interviews were analyzed through grounded theory and topic modeling (STM). According to the grounded theory results, judges distinguished concepts such as social rules, socially accepted ideas, legal emotion, and public mood from public opinion, and subdivided public opinion into temporary and emotional reactions to specific legal cases and consistent attitudes toward law and policies. In addition, it was found that judges' attitudes toward public opinion and social norms differed depending on the type of cases or legal issues. Topic modeling results significantly corresponded to the grounded theory results. In this model, the effects of the types of cases dedicated to participants on topical prevalence were statistically significant.

• Journal of Arbitration Studies
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• v.28 no.2
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• pp.3-43
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• 2018

The emergence of a multi-door courthouse is related with a couple of reasons as follows: First, a multi-door courthouse was originally initiated by the United States government that increasingly became impatient with the pace and cost of protracted litigation clogging the courts. Second, dockets of courts are overcrowded with legal suits, making it difficult for judges to handle those legal suits in time and causing delays in responding to citizens' complaints. Third, litigation is not suitable for the disputant that has an ongoing relationship with the other party. In this case, even if winning is achieved in the short run, it may not be all that was hoped for in the long run. Fourth, international organizations such as the World Bank, UNDP, and Asia Development Bank urge to provide an increased access to women, residents, and the poor in local communities. The generic model of a multi-door courthouse consists of three stages: The first stage includes a center offering intake services, along with an array of dispute resolution services under one roof. At the second stage, the screening unit at the center would diagnose citizen disputes, then refer the disputants to the appropriate door for handling the case. At the third stage, the multi-door courthouse provides diverse kinds of dispute resolution programs such as mediation, arbitration, mediation-arbitration (med-arb), litigation, and early neutral evaluation. This study suggests the extended model of multi-door courthouse comprised of five layers: intake process, diagnosis and door-selection process, neutral-selection process, implementation process of dispute resolution, and process of training and education. One of the major characteristics of extended multi-door courthouse model is the detailed specification of individual department corresponding to each process within a multi-door courthouse. The intake department takes care of the intake process. The screening department plays the role of screening disputes, diagnosing the nature of disputes, and determining a suitable door to handle disputes. The human resources department manages experts through the construction and management of the data base of mediators, arbitrators, and judges. The administration bureau manages the implementation of each process of dispute resolution. The education and training department builds long-term planning to procure neutrals and experts dealing with various kinds of disputes within a multi-door courthouse. For this purpose, it is necessary to establish networks among courts, law schools, and associations of scholars in order to facilitate the supply of manpower in ADR neutrals, as well as judges in the long run. This study also provides six case studies of multi-door courthouses across continents in order to grasp the worldwide picture and wide spread phenomena of multi-door courthouse. For this purpose, the United States and Latin American countries including Argentina and Brazil, Middle Eastern countries, and Southeast Asian countries (such as Malaysia and Myanmar), Australia, and Nigeria were chosen. It was found that three kinds of patterns are discernible during the evolution of a multi-door courthouse model. First, the federal courts of the United States, land and environment court in Australia, and Lagos multi-door courthouse in Nigeria may maintain the prototype of a multi-door courthouse model. Second, the judicial systems in Latin American countries tend to show heterogenous patterns in terms of the adaptation of a multi-door courthouse model to their own environments. Some court systems of Latin American countries including those of Argentina and Brazil resemble the generic model of a multi-door courthouse, while other countries show their distinctive pattern of judicial system and ADR systems. Third, it was found that legal pluralism is prevalent in Middle Eastern countries and Southeast Asian countries. For example, Middle Eastern countries such as Saudi Arabia have developed various kinds of dispute resolution methods, such as sulh (mediation), tahkim (arbitration), and med-arb for many centuries, since they have been situated at the state of tribe or clan instead of nation. Accordingly, they have no unified code within the territory. In case of Southeast Asian countries such as Myanmar and Malaysia, they have preserved a strong tradition of customary laws such as Dhammthat in Burma, and Shriah and the Islamic law in Malaysia for a long time. On the other hand, they incorporated a common law system into a secular judicial system in Myanmar and Malaysia during the colonial period. Finally, this article proposes a couple of factors to strengthen or weaken a multi-door courthouse model. The first factor to strengthen a multi-door courthouse model is the maintenance of flexibility and core value of alternative dispute resolution. We also find that fund raising is important to build and maintain the multi-door courthouse model, reflecting the fact that there has been a competition surrounding the allocation of funds within the judicial system.

• Journal of the Korea Institute of Building Construction
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• v.6 no.3 s.21
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• pp.83-90
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• 2006

The purpose of this study is to propose improved apartment management rules so that the inhabitants of apartment houses can manage their apartment in efficient and transparent manners. This study points out several problems of current management system and propose improved apartment management rules by analyzing misconducts of management office, related laws and regulations, standard apartment management rules, these and judicial decisions. Therefore, the inhabitants may refer to this study in establishment or amendment of their apartment management rules.