• Journal of Arbitration Studies
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• v.16 no.1
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• pp.343-373
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• 2006

지적재산권의 속지주의 원칙에 따라 전통적으로 지적재산권의 침해에 있어서 결과의 발생이 없는 행위지를 침해지로 인정하지 않았다. 어문과 예술작품을 보호하기 위해 1886년 체결된 베른협약(Berne Convention for the Protection of Literary and Artistic Works) 제5조 제1항은 저작자가 베른협약에 따라 보호되는 저작물에 관하여 본국 이외의 동맹국에서 각 법률이 현재 또는 장래에 자국민에게 부여하는 권리 및 이 협약이 특별히 부여하는 권리를 향유한다고 규정하여 내국민대우원칙을 천명하고 있다. 또한 베른협약 제5조 제2항은 저작권의 보호와 향유는 저작물의 본국에서 보호가 존재하는 여부와 관계가 없이, 보호의 범위와 저작자의 권리를 보호하기 위하여 주어지는 구제의 방법은 오로지 보호가 주장되는 국가의 법률의 지배를 받는다라고 규정하여 저작권 침해가 발행한 국가의 법률의 적용을 명시하고 있다. 인터넷과 무선통신 기술의 발달은 저작물을 디지탈 형식으로 실시간에 전세계에 배포하는 것을 가능하게 하였다. 특히 저작물의 인터넷상에서의 배포는 다국적 저작권 침해행위를 야기하여, 저작권자가 다수의 국가에서 저작권 침해소송을 제기하여 판결을 집행하는 것이 필요하게 되었다. 헤이그국제사법회의(Hague Conference on Private International Law)에서 1992년부터 논의되어 온 민사 및 상사사건의 국제재판관할과 외국판결에 관한 협약(Convention on Jurisdiction and Foreign Judgment in Civil and Commercial Matters)에서 채택된1999년의 예비초안(preliminary draft) 및 2001년 외교회의에서 수정된 잠정초안(Interim text) (이하 헤이그 협약 )은 저작권자가 저작권침해행위가 발생한 각 국가에서 저작권 침해행위를 금지하는 소송을 제기할 필요없이, 동 협약의 한 가맹국가의 법원의 저작권침해금지판결을 다른 가맹국가에서도 집행할 수 있는 가능성을 제시해 주는데 의미가 있다. 헤이그 협약 제10조는 불법행위(torts)에 관한 일반적인 재판관할에 관한 규정을 두고 있으며, 저작권침해에 관한 분쟁은 동 조항의 적용을 받는다. 제10조에 의해 당사자는 가해행위지 국가의 법원 또는 결과발생지 국가의 법원에서 소송을 제기할 수 있다. 결과발생지의 경우 제10조 1항 (b)는 피고가 자신의 행위가 본국의 법규에 비추어 동일한 성격의 손해를 초래할 수 있다라고 합리적으로 예견할 수 없었던 경우에 본 조항의 적용을 배제하고 있다. 인터넷을 통한 저작권침해의 경우, 피고가 자신의 국가의 법규하에서 합법적으로 저작물을 웹사이트에 게시하였으나, 그 행위가 다운로딩이 행해진 국가에서 불법인 경우, 피고는 저작권침해를 예견할 수 없었으므로 이에 문제가 제기된다. iCrave TV사건에서, 피고인 캐나다회사가 미국 및 캐나다에서 방송되는 텔레비젼 방송 프로그램을 자신의 웹사이트에 게시하여 이용자들로 하여금 컴퓨터를 통하여 방송을 재시청 할 수 있도록 하였는데 이는 캐나다에서 합법인 반면에 미국에서는 저작권 침해에 해당한다. 피고는 방송 프로그램을 인터넷상에서 재방송하는 것은 캐나다법상 합법이므로 저작권침해를 예견할 수 없었다고 주장하면서, 해당 사이트에 오직 캐나다 거주자만의 접속을 허용하고 미국 거주자의 접속을 제한하는 일련의 Click-Wrap 계약과 스크린 장치를 제공하였다고 주장하였다. 본 사건 피고의 주장을 받아들인다고 가정할 때, 제10조 1항(b)에 의해 원고는 결과발생지인 미국법원의 재판관할을 강제할 수 없을 것이다. 지적재산권을 둘러싼 분쟁에 관한 재판관할과 국제법상의 판결의 승인 및 집행의 통일성을 기하기 위하여 2001년 1월 세계지적재산권기구(World Intellectual Property Organization)가 제안한 WIPO 협약초안(Draft Convention on Jurisdiction and Recognition of Judgments in Intellectual Property Matters)은 헤이그 협약이 재판관할과 판결의 승인 및 집행에 대한 일반적인 접근을 하고 있는 점에 반하여 지적재산권자의 보호라는 측면을 고려하여 지적재산권침해소송에 국제재판관할권을 규정하고 있다. WIPO 협약초안 제6조는 저작권자가 저작권 침해를 막기 위한 합리적인 조치를 취한 국가에서 저작권 침해소송을 피할 수 있다고 규정하고 있다. 따라서 본 조항에 의할 경우, iCrave TV사건의 피고는 미국에서의 저작권 침해소송을 회피할 수 있을 것이다. 이상과 같이 헤이그 협약이 외국판결의 승인 및 집행을 가능하게 하고 있음에도 불구하고, 외국법원의 판결이 다수의 가맹국가에서 집행되지 못하는 가장 큰 장애는 대다수의 국가들이 외국법원의 판결이 공서양속(Public Policy)에 반하는 경우 판결을 승인하지 않는 예외규정을 두고 있기 때문이다. 미국의 경우, Uniform Recognition Act와 Restatement(Third) of Foreign Relations에 따른 공서양속의 예외규정(Public Policy exception)은 외국법원의 판결의 승인을 부인하는 근거가 된다. Yahoo! 사건에서 Yahoo! Inc.의 옥션 사이트를 통해 독일 나치 소장물의 판매가 이루어졌는데, 프랑스 형법상 이는 범죄행위에 해당하므로, 프랑스 법원은Yahoo! Inc.에게 프랑스 이용자가 당해 옥션 사이트에 접속할 수 없도록 모든 가능한 조치를 취할 것을 명하였다. 이에 미국 법원은 프랑스 법원의 판결은 Yahoo! Inc.의 미국헌법 제1 수정(First Amendment)의 언론의 자유(freedom of speech)에 반하므로 판결의 집행을 거부하였는데 이는 공서양속의 예외규정을 보여주는 예이다. 헤이그 협약 제28조와 WIPO 협약초안 제25조 또한 공서양속의 예외규정을 두고 있다. 본 논문은 인터넷과 통신기술의 발달로 야기되는 다국적 저작권 침해사건에서 한 국가의 법원의 저작권 침해금지판결이 다수의 국가에서 승인 및 집행될 수 있는 능성을 헤이그 협약과 WIPO 협약초안 및 미국판결을 중심으로 살펴보았다. 국제적으로 통일된 저작권법이 존재하지 않고 외국 판결의 승인을 부인하는 예외조항과 외국판결의 집행에 관한 각국의 이해관계와 준거법의 해석이 다른 현시점에서 지적재산권의 속지주의를 뛰어넘어 외국법원의 판결을 국제적으로 집행하는 것은 다소 어려움이 있어 보이나 국제적인 집행가능성의 열쇠를 제시하는 헤이그 협약과 장래의 국제조약에 그 기대를 걸어볼 수 있겠다.

• Journal of the Korean Institute of Landscape Architecture
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• v.36 no.3
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• pp.9-20
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• 2008

The government is planning to link a small park with the soon to be ready subway line 9 as a part of Seoul's policy, "The standard or plan for making a water-friendly space by water use" (2007). However, the specified concepts and instructions of the small parks need further work. Therefore, the policy is expected to expand to neighboring small parks near the subway station, but these are not supported by research or data which suggests the needs or actual user behavior and utilization of small parks. our country added the specified concept of small parks and theme parks to the classification of urban parks in the Urban Park Act Revision (2005.3.31), but the concept of small parks is not clearly settled in the law in the scopes of its function, scale, promotion nor particularly defined plans for small park projects. This study examines as small park near a subway station. The characteristics of there region and users vary from the characteristics of the station and region. In the "directions for concrete standards under the types of urban parks and green zones" (2007.2) the types of small parks are classified by "regional characteristics" and "user characteristics". Therefore, this study classifies the subject of neighboring small parks near subway stations as the neighborhood and small urban parks according to the Urban Park Act. The study was paralleled with observation and questionnaires on the analysis of the neighborhood and small urban parks. The actual conditions of park utilization and user behavioral characteristics were deducted by observation, while the questionnaire determined actual user utilization, importance and satisfaction level as well as the small park environment. This study largely focused on three aspects: park facility, design of this sentence isn't even complete. The second aspect isn't finished and the third isn't here.

• Journal of the Korean Society for Marine Environment & Energy
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• v.15 no.3
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• pp.263-272
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• 2012

Carbon dioxide, emitted by human activities since the industrial revolution, is regarded as a major contributor of global warming. There are many efforts to mitigate climate change, and carbon dioxide capture and geological storage (CCS) is recognized as one of key technologies because it can reduce carbon dioxide emissions from large point sources such as a power station or other industrial installation. The inclusion of CCS as clean development mechanism (CDM) project activities has been considered at UNFCCC as financial incentive mechanisms for those developing countries that may wish to deploy the CCS. Although the Conference of the Parties serving as the Meeting of the Parties to the UNFCCC's Kyoto Protocol (CMP), at Cancun in December 2010, decided that CCS is eligible as CDM project activities, the issues identified in decision 2/CMP.5 should be addressed and resolved in a satisfactory manner. Major issues regarding modalities and procedure are 1) Site selection, 2) Monitoring, 3) Modeling, 4) Boundaries, 5) Seepage Measuring and Accounting, 6) Trans-Boundary Effects, 7) Accounting of Associated Project Emissions (Leakage), 8) Risk and Safety Assessment, and 9) Liability Under the CDM Scheme. The CMP, by its decision 7/CMP.6, invited Parties to submit their views to the secretariat of Subsidiary Body for Scientific and Technological Advice (SBSTA), SBSTA prepared a draft modalities and procedure by exchanging views of Parties through workshop held in Abu Dhabi, UAE (September 2011). The 7th CMP (Durban, December 2011) finally adopted the modalities and procedures for CCS as CDM project activities (CMP[2011], Decision-/CMP.7). The inclusion of CCS as CDM project activities means that CCS is officially accredited as one of $CO_2$ reducing technologies in global carbon market. Consequently, it will affect relevant technologies and industry as well as law and policy in Korea and aboard countries. This paper presents a progress made on discussion and challenges regarding the issue, and aims to suggest some considerations to policy makers in Korea in order to demonstrate and deploy the CCS project in the near future. According to the adopted modalities and procedures for CCS as CDM project activities, it is possible to implement relevant CCS projects in Non-Annex I countries, including Korea, as long as legal and regulatory frameworks are established. Though Korea enacted 'Framework Act on Low Carbon, Green Growth', the details are too inadequate to content the requirements of modalities and procedures for CCS as CDM project. Therefore, it is required not only to amend the existing laws related with capture, transport, and storage of $CO_2$ for paving the way of an prompt deployment of CCS CDM activities in Korea as a short-term approach, but also to establish the united framework as a long-term approach.

• The Journal of Dong Guk Oriental Medicine
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• v.1
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• pp.161-191
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• 1992

The purpose of this study is how have the form and theory of the five element theory in the (黃帝內徑) by the investigation of the course of the course of the five element introduced the ancient oriental medicine from ancient oriental philosophy. The following results were obtained. 1. The five elements in (尙書) meaned the uses of water, fire, earth, wood, metal which were important in living. Because these had very important meaning in ancient political and economic society, emphasized to big law(洪範) 2. The five elements in (左傳) and (國語) mean the five uses too, and there are the phases of "five win metal"(火勝金) and "wather win fire"(水勝火), but these only meaned the physical interrelation. 3. In the five circulating factor theory made by Chu Yen(鄒衍) which have the attribute of the five elements, he more reasonably had argued human affairs like that a dynasty become different in step with the circulating five favors. There is the regular annual policy in the (呂氏春秋) which closely connected nature and human living, and attached the various colors, animals, visceras, flavors, sounds, the sexagenary cycle and so on to the five elements. 4. In the (春秋繁露) writed in fore-period of Han(漢) dynasty, the interactions of the five elements are concretely applicated to policy, Dong Jung Soe(童仲舒) had discrived the interactions of the five elements by Dong Lyu Sang Dong theory(同類相動說) and the misfortune theory(災異說), emphasized the sympathy of nature and human. Thought there is many content which are superstitious and contradictory, I concider which that affcted many effects in the formation of five element theory of oriental medicine. In the (淮南子) the order of matters were explained by the five element theory too, as the interrelations of the five elements were explained by the sexagenary ctcle, I assume that the bud of O-Un theory(五運理論). And there was not founded the fullscale intriduction of the five element theory in the Ma Wang Tye(馬王堆) excavated finds, the Mu Yyi medical writings formed the dynasty(武威漢代醫簡) and the documents about Pyun Jak(偏鵲) and Sun U Ie(淳于意). 5. The application of the five element theory in the (Whang Di Nei Qing) (黃帝內徑) is devided into the attachement to the five elements, the interelations of the five elments, and Un Gi theery(運氣論). In the attachment to the five elemeant theory, it made the attachment of the five viseras of (今文尙書) party a standard and attached the sections of a human body, the whole internal organs of sense, the five colors, the five flavors and the five sounds and so on to the five elements. It put to use by means of the apllivation of the interrelation of the five elements in the transferations of the diseases and the relative severeness of a disease in step with change of time and season. Un Gi theory(運氣論) which synthesized by the attachment to the five elements, the inter-relations of the five elements and the climate which observerd from ancient times systematically argued the effects of weather to human. 6. The application of the five elements theory in (黃帝內徑) have the significant what had get rid of irrational factors like that the emotion and action of human could to influense the weather, what had been formes more rational thingking by the obesrvation of human and nature. It is required more reserches about the possibility of the formation of the doctrinal faction bt the geographical effect of the Yon, Je(燕,薺) region, the application of the five element theory in other ancient medical books and the relationship of the five element theory and Yin Yang(陰陽)

• Journal of the Korean Institute of Landscape Architecture
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• v.39 no.6
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• pp.86-97
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• 2011

This study analyzed the necessity of the tentatively-named "Framework Act on Landscape Architecture" as an umbrella law in the field of landscape architecture regarding legal, industrial, and academic aspects and is intended to provide basic data to suggest the optimal legal system and legislative proceedings to control it. This study can be summarized as follows: First, a form of framework act on landscape architecture is appropriate for a compromise between ideal type and political framework. Some content is suitable for proclamatory character including present and future issue related to the landscape architecture fields. Second, legislative proceedings are more reasonable as motions coming from assembly proposals rather than government. Motions by assembly proposal recommend the following procedure: submission of a legislative bill by an assemblyperson, passing of a permanent commission, review by government, leading approval by emphasis on correspondence with the principle to carry out government affairs, proclamation. Third, a frame based on content and form can be made up of a total of 7 chapters 34 articles. The function must include the following: the suggestion of direction for government policy, the systematization of the institution and what it includes, the control of government administration, a public service system regarding public relations for landscape architecture and so on. The results of this study will form a social consensus about the necessity of a framework act regarding landscape architecture fields and contribute to informing the importance of landscape architecture as related to other industrial fields.

• Health Policy and Management
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• v.8 no.2
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• pp.125-148
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• 1998

Accurate vital statistics are essential for a national health planning and evaluation. Among various vital statistics, birth and death rates, and infant and matemal mortality rates together with the causes of death are the very basic ones for above purposes as well as for the maternal and child health management. These statistics are based on the birth and death reports. It is required by law to report every birth and death within one month after its occurrence. However, in case of a neonatal death occurring prior to the birth report, most of the birth and death are not reported. Thus accurate infant and maternal mortality rates are not available yet in Korea. The main objective of this study is to develop a birth and infant death reporting system via computer network. We designed a new birth report form based on the current form and data from the analysis of medical record forms of 14 hospitals. A new form is basically addition of essential medical information to the current birth report form. Since a revision of the rules and regulations related wtih the birth report is necessary to use a new form, we kept the current from intact to make it acceptable to the government office for a field trial. We also developed computer programs for data input for birth and death reports at a medical faciltiy, data processing for production of maternal and child health indices at a health center, and management of maternal and child health services including immunization and postantal care at health center. The birth certificate and birth report can be printed out at a medical facility. The computer packages were programmed by Borland Delphi 3.0 and can be run under Windows 95 system. We proposed a new birth and death reporting system via computer network after a field trial for data input, transmission, and processing. The medical and demographic data o birth and death at medical facilities will be sent to health centers directly via computer network. The health center will retain the medical data for analysis and forward only the data for birth and death reports required by current regulations to the Dong, Up, or Myun Office. Once the birth or death is reported via computer network to the Dong Office, then the Dong Office will notify the baby's mother of the birth report and request to submit the baby's name by mail. When the baby's name its submitted. the Dong Office will forward the birth reports to the Common Court and Statistics Agency in the same way as the current system, Upon the completion of birth registration of the Common Court, the court will issue the birth certificate to mother which will be used in lieu of the family record. The advantages of proposed birth and death reporting system via computer network ar as follows ; I) The accuracy, timing, and completeness of reporting will be improved and more accurate maternal and child health indices can be obtained, ii) The maternal and child health services of health center will be obtained, iii) Epidemiologic data for pregnancy and birth can be obtained, iv) Manpower for birth and death reporting will be saved.

• KDI Journal of Economic Policy
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• v.31 no.1
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• pp.139-167
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• 2009

A new public insurance for long-term care was introduced in July 2008 to provide for the rising demand for long-term care as the population is aging rapidly. The demand for long-term care is expected to rise further because more and more elderly are living alone or in households with only other elderly, such as his/her spouse, without informal care of their adult children. Even when the elderly are living together with their adult children, daughters and daughters in law, once the main informal care-givers, are not available because they choose to become economically active and work more over time. Experiences of countries such as Japan and Germany with similar public long-term care insurance scheme highlight the importance of detailed analysis on the demand for long-term care for the financial stability of the insurance scheme. Countries which had underestimated the demand for long-term care at the time of adopting the scheme went through financial instability of insurance schemes. This study analyzes the determinants of the demand for long-term care using data from the second demonstration project (April 2006~April 2007) of the long-term care insurance scheme for the elderly in Korea. Taking full advantage of detailed data on the long-term care, this paper analyzes the eligibility for the long-term care insurance scheme and its use. According to study results, even when common diseases among the elderly such as cancer, diabetes, arthritis, dementia, hypertension, etc. are controlled together with other individual and socioeconomic factors, limitations the elderly are faced with in their twelve activities of daily living significantly affect the eligibility for the Korean Long-term Care Insurance Scheme. This means that limitations in daily living activities are more critical than common diseases among the elderly are to the eligibility for the Korean Long-term Care Insurance Scheme. Bathing and toileting problems have been found to be the most important factor affecting the eligibility for the insurance scheme, followed by eating, dressing and moving around inside the house. Moreover, the choices of whether to use long-term care and which to use between home care and institutional care are found to be significantly influenced by health status and various socioeconomic factors of the elderly. In particular, those with more limitations in daily living activities and the female elderly are more likely to use long-term care and institutional care rather than home care. As for home care users, those living alone or with adult children and those with monthly household income of more than 500,000 won are more likely to use home care. Most importantly, even when the monthly household income of the elderly is controlled, the elderly recipients of the National Basic Living Security, who are not charged for long-term care, are more likely to choose home care. This implies that price as well as income is a critical factor for the decision to use long-term care. Further study on the duration of long-term care use will surely enhance the long-term care policy, when panel data is available for simultaneous analysis of the likelihood of long-term care use and its use duration.

• Journal of the Korean Institute of Landscape Architecture
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• v.45 no.1
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• pp.73-81
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• 2017

During the 1990s, policy was put in place to create resting spaces in rural areas. This policy was associated with a government project to improve the rural residence environment and it attracted attention to outdoor spaces in rural areas. Many communities have gradually disappeared in rural areas but previous studies suggested that legally protected trees might provide resting and cultural spaces in a given rural community. The rural residential environment can be improved by legally protected trees and by doing so, these resources may then help to sustain many rural communities. Therefore, the creation of resting spaces or mini-parks created around trees that are protected by in rural communities should be considered. The value of trees that are protected by law can differ depending on the status of the trees or the surroundings. Nevertheless, there has not been systemic research regarding legally-protected trees in terms of rural communities. This study aims at evaluating the potential of these trees and at analyzing how these trees can be useful in the creation of community spaces in rural areas. The findings can be helpful in providing foundation data for creating these types of community spaces. Forty legally protected trees in Gimchon City were selected for this study. Nine items were used to evaluate the potential of the trees for creating community spaces. These items could be classified into five factors including accessibility, relation to public facilities, environment and safety, symbolism, and ease for creating community spaces. The potential of the legally protected trees was evaluated by 5-point Likert Scales in a given item. The overall potential was evaluated by the sum of individual item scores. Specifically, trees with over 20 points (max. 25 points) could be considered high potential. According to the empirical findings, the portion of legally protected trees with high potential is five percent (No.7 and No.12 trees). Therefore, the priority is to protect or use the trees for the creation of community spaces that can help make a better residential environment for rural communities.

• 한국사회정책
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• v.25 no.2
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• pp.367-402
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• 2018

This study analyzed the relationship between the act on the guarantee of rights of and support for persons with developmental disabilities(Act for PWDD) and the similar ordinance of the local governments based on this law and focused on the correspondence(the rate of reflection) and the autonomy(differentiation). As of October 2017, 63 local government regulations and Act for PWDD were analyzed in this study. The results of the analysis are as follows: First, the rate of reflection in the ordinance of Act for PWDD was different according to the clause. In the aspect of emphasizing welfare support, the agreement between local ordinance and rate was high. While the Act for PWDD emphasized the rights of persons with developmental disabilities, there was little information about their right in the ordinance of local governments. This is evidence that current ordinance is based on the protective point of view for people with developmental disabilities. In the future, policy measures will be needed to ensure that respect for decision-making by persons with developmental disabilities and rights guarantees are included in the bylaws. Second, there is a provision that the rate of ordinance reflection is 0%, which may be guaranteed by other laws in the area, so it does not mean the absence of related system in the region, but there is possibility of institutional blind spot. In the future, consideration should be given to the complementarity of other legal systems in the area with developmental disabilities, so that persons with developmental disabilities should not be placed in institutional blind spots. Third, the autonomy(differentiation) of local ordinance was examined from the contents aspect and the administrative aspect to help practical implementation. The differentiation between the ordinances vary. Emphasizing the responsibilities of the head of the organization, emphasizing the fact-finding survey, setting up the welfare committee, or adding local needs were included to the ordinance. Local governments considering the enactment of ordinances in the future should refer to these cases and establish enactable local ordinances that take advantage of the characteristics of local autonomy.

• Korean Journal of Heritage: History & Science
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• v.51 no.4
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• pp.146-169
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• 2018

Artificial or natural artifacts, which have historical, artistic, academic or scenic value as national, ethnic or global assets, are designated as "cultural heritages" under the Act on the Protection of Cultural Heritage. Cultural heritages can be divided into tangible cultural heritages, intangible cultural heritages, and monument and folklore heritages. In addition, depending on the object of designation, a cultural heritage can be designated either as a city or a provincial cultural heritage or a cultural heritage material, by a city mayor or provincial governor, and as a state-designated heritage by the administrator of the Cultural heritage Administration. The regular survey is a part of the policy for the preservation and management of state-designated heritages, which requires that surveys be undertaken every three to five years for the preservation, repair and maintenance of cultural heritages. It was stipulated in the Act on the Protection of Cultural Heritage in 2006, and since then has substantially contributed to the preservation and management of state-designated heritages based on the identification of damage to cultural heritages and the application of appropriate treatment measures. However, some parts of the guidelines on the regular survey, legislated in 2006, occasionally give rise to confusion in managing the regular survey system of state-designated movable cultural heritages, and need to be modified to facilitate the systematic management and improvement of the regular survey system. This study attempts to analyze the structure and operation of the regular survey system of state-designated movable cultural heritages, and proposes plans for improving the way of specifying each department which leads, manages and executes the regular survey, the process of entrusting the survey, and its guidelines and forms. I hope that these plans concerning the regular survey of state-designated movable cultural heritages will contribute to improving the quality and management of the system.