• Title/Summary/Keyword: Legal liability

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국제물품매매계약상 물품의 계약적합성 의무에 관한 비교 연구 (A Comparative Study on the Seller's Duty to Deliver the Goods in Conformity with the Contract)

  • 이병문
    • 무역학회지
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    • 제42권6호
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    • pp.1-25
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    • 2017
  • 본 연구는 하자물품에 대한 매도인의 책임에 관한 CISG와 CESL상 매도인의 계약에 적합한 물품인도의무에 관한 비교연구라는 연구목적 하에 다음과 같은 주요 연구내용을 담고 있다. 첫째, CISG 및 CESL상 하자담보책임 관련 규정중 매도인의 계약에 적합한 물품인도의무의 내용을 구체적 내용의 검토와 더불어 그간 논의의 전개과정을 살펴본다. 둘째, 각 규범의 관련 규정과 상호 비교하여 살펴봄으로 근대입법의 흐름을 진단하여 무역업계의 하자담보책임 관련 이해의 차이를 좁히고 실무적 대응방안의 기초를 마련한다. 셋째, 비교연구를 통하여 상호 차이점에 대한 해석론적 내지 개정 의견을 제시하도록 한다. 이러한 비교연구의 시도는 특히 거래당사자로서 상인과 소비자의 각자 이익의 관점에서 그들의 계약상 합리적 기대를 올바로 반영하고 있는지를 평가하고자 한다.

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정신질환자 보호의무자의 감독의무 위반으로 인한 손해배상책임 -대법원 2021. 7. 29. 선고 2018다228486 판결의 검토- (Liability for Damages Due to Violation of Supervisory Duty by the Legal Guardian of the Mental Patient)

  • 정다영
    • 의료법학
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    • 제23권4호
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    • pp.133-170
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    • 2022
  • 대법원 2021. 7. 29. 선고 2018다228486 판결은 책임능력 있는 정신질환자의 보호의무자의 감독의무 위반으로 인한 손해배상책임의 근거를 민법 제750조로 명시하였다. 이 판결은 보호의무자가 구 정신보건법에 따라 정신질환자에 대한 감독의무를 부담함을 근거로, 보호의무자에게 민법 제750조에 따른 감독의무 소홀로 인한 불법행위책임의 성립을 인정하고 있다. 그러나 '감독할 법정의무'를 명문의 규정으로 요구하는 민법 제755조 제1항의 경우와 달리, 민법 제750조는 일반 불법행위책임을 규정하고 있을 뿐이므로, 민법 제750조에 따라 감독의무 위반으로 인한 불법행위책임을 인정하기 위해서는, 감독의무의 근거가 반드시 법률일 것을 요하지 아니한다. 이 경우 사회상규나 조리, 신의칙, 형평의 원칙에 의해서도 감독의무를 인정할 수 있다. 보호의무자의 감독의무는 정신질환자의 행동으로 인한 모든 결과를 방지해야 하는 일반적인 의무가 아니라 합리적으로 제한된 범위에서의 의무이다. 따라서 보호의무자가 피보호자인 정신질환자가 타인을 위해할 가능성이 있다는 구체적인 위험을 인지하였는데도 대비를 하지 않은 경우와 같이 정신질환자의 행위에 관해서 책임을 묻는 것이 타당한 객관적 상황이 인정되는지 여부에 따라 개별적으로 판단하여야 한다. 정신건강증진 및 정신질환자 복지서비스 지원에 관한 법률에 따른 보호의무자에게는 피감독자에 대한 일반적인 자상타해방지감독의무까지 인정하기는 어렵다고 할 것이나, 보호의무자가 입원신청을 하였으나 정신건강의학과전문의가 입원등이 필요하다고 진단하지 않은 경우나 정신의료기관등의 장은 입원등을 받아들이지 않은 경우 및 정신질환자의 행동에 대해 보호의무자에게 구체적인 예견가능성이 없다고 판단될 경우에는 보호의무자의 감독의무 위반 자체가 없다고 보아야 하며, 설혹 감독의무 위반이 있다고 하더라도 정신질환자의 불법행위로 인한 손해와의 사이에 인과관계가 존재하지 않는다고 보아야 할 것이다.

Electronic Proceedings in Modern Legal Conditions

  • Veselovska, Nataliia;Slipeniuk, Vasyl;Yasynok, Dmytro;Zhukevych, Ihor;Gorbenko, Arina
    • International Journal of Computer Science & Network Security
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    • 제21권8호
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    • pp.224-228
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    • 2021
  • The article is devoted to the problems and prospects of integration of informational technologies in the administration of justice as a necessary component of the development of the informational society in Ukraine. In general, informational technologies make it possible to create new forms of organization and interaction of bodies of public authorities with society, to introduce innovative solutions for legal regulation and organization of public relations. More and more services for citizens are moving to electronic format. Judicial reform is aimed at ensuring more comfortable and convenient interaction with the courts. The need for the usage of informational technology in the proceedings is preconditioned by the global informatization of modern society, the development of new forms of interaction in the civil sphere with the usage of electronic means of communication: the global Internet, mobile, and satellite communication systems and more. "Electronic justice" involves the use of information and communication technologies in the implementation of procedural law.

간호사고의 원인과 그 예방 (A Study on Theory of Nurse Liability)

  • 문성제
    • 의료법학
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    • 제5권1호
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    • pp.622-660
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    • 2004
  • Medical services aren't done by doctors only but by different medical personnels. If any medical accident takes place, to what extent doctors, nurses and other personnels should respectively be liable for that should be determined. And when an employed doctor does any illegal medical act, his or her employer also should be responsible for that as a user. If a medical accident occurs, the victim or patient usually claims against the employer of the doctor sho causes the accident for compensation. And those who assist medical treatment, including nurses, should be liable for their own acts, but in case their doctor doesn't give any appropriate directions, the doctor should shoulder the liability. This indicates that nurses are also professional medical personnels, and that they should share the liability as well. There are lots of different medical personnels, but doctors and nurses are the pivot of team treatment, and nurses should also take responsibility for their services. Doctors and nurses are equal, as they are in pursuit of the same, namely, helping patients recover their health. Only their roles are different. If they respect each other and see each other as being responsible for their own roles, they will be able to consult together. Medical information on patients and nursing information should be shared by both of them, and patients should be provided accurate treatment and nursing services. If those who offer nursing services are unaware of required information due to conflicts with doctors, it might result in threatening the safety of patients. And in case any important information isn't properly conveyed between them, it might trigger a medical accident. Sophisticated and complex medical science requires medical personnels to be professional, and nurses as well as doctors need to be an expert. The fact treatment-related accidents take place often indicates that treatment is basically attended with danger. Furthermore, patients respond to all sorts of investigation and medicine in a different manner. They should be professional and knowledgeable to predict how they might respond and prevent any possible hazardous situations, and they are expected to have more knowledge in the future. Nonetheless, there aren't yet enough studies on the legal liability of nurses, and this study is expected to pave the way for future research on nurse liability against medical accidents.

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우주법상 손해배상책임과 분쟁해결제도 (The Liability for Damage and Dispute Settlement Mechanism under the Space Law)

  • 이강빈
    • 한국중재학회지:중재연구
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    • 제20권2호
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    • pp.173-198
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    • 2010
  • The purpose of this paper is to research on the liability for the space damage and the settlement of the dispute with reference to the space activity under the international space treaty and national space law of Korea. The United Nations has adopted five treaties relating to the space activity as follows: The Outer Space Treaty of 1967, the Rescue and Return Agreement of 1968, the Liability Convention of 1972, the Registration Convention of 1974, and the Moon Treaty of 1979. All five treaties have come into force. Korea has ratified above four treaties except the Moon Treaty. Korea has enacted three national legislations relating to space development as follows: Aerospace Industry Development Promotion Act of 1987, Outer Space Development Promotion Act of 2005, Outer Space Damage Compensation Act of 2008. The Outer Space Treaty of 1967 regulates the international responsibility for national activities in outer space, the national tort liability for damage by space launching object, the national measures for dispute prevention and international consultation in the exploration and use of outer space, the joint resolution of practical questions by international inter-governmental organizations in the exploration and use of outer space. The Liability Convention of 1972 regulates the absolute liability by a launching state, the faulty liability by a launching state, the joint and several liability by a launching state, the person claiming for compensation, the claim method for compensation, the claim period of compensation, the claim for compensation and local remedy, the compensation amount for damage by a launching state, the establishment of the Claims Commission. The Outer Space Damage Compensation Act of 2008 in Korea regulates the definition of space damage, the relation of the Outer Space Damage Compensation Act and the international treaty, the non-faulty liability for damage by a launching person, the concentration of liability and recourse by a launching person, the exclusion of application of the Product Liability Act, the limit amount of the liability for damage by a launching person, the cover of the liability insurance by a launching person, the measures and assistance by the government in case of occurring the space damage, the exercise period of the claim right of compensation for damage. The Liability Convention of 1972 should be improved as follows: the problem in respect of the claimer of compensation for damage, the problem in respect of the efficiency of decision by the Claims Commission. The Outer Space Damage Compensation Act of 2008 in Korea should be improved as follows: the inclusion of indirect damage into the definition of space damage, the change of currency unit of the limit amount of liability for damage, the establishment of joint and several liability and recourse right for damage by space joint launching person, the establishment of the Space Damage Compensation Review Commission. The 1998 Final Draft Convention on the Settlement of Disputes Related to Space Activities of 1998 by ILA regulates the binding procedure and non-binding settlement procedure for the disputes in respect of space activity. The non-binding procedure regulates the negotiation or the peaceful means and compromise for dispute settlement. The binding procedure regulates the choice of a means among the following means: International Space Law Court if it will be established, International Court of Justice, and Arbitration Court. The above final Draft Convention by ILA will be a model for the innovative development in respect of the peaceful settlement of disputes with reference to space activity and will be useful for establishing the frame of practicable dispute settlement. Korea has built the space center at Oinarodo, Goheung Province in June 2009. Korea has launched the first small launch vehicle KSLV-1 at the Naro Space Center in August 2009 and June 2010. In Korea, it will be the possibility to be occurred the problems relating to the international responsibility and dispute settlement, and the liability for space damage in the course of space activity. Accordingly the Korean government and launching organization should make the legal and systematic policy to cope with such problems.

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제조물책임법상 제조물로서 의약품의 결함 (Defective Medicine according to Product Liability Law)

  • 전병남
    • 의료법학
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    • 제8권1호
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    • pp.235-277
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    • 2007
  • In Product Liability law, the 'defection' of the manufactured products is its key concept, defined in detail. The concept had been already developed through the precedents and theories for the past years even before the PL law was enacted and the concept was listed. Especially, the medicine products need the different approach, because they might directly harm to the human life and body due to their being injected or taken, unlikely other manufactured articles. Since the medical products have the double contradictory functions such as effects and side effects, the defection decisions become so difficult. However, because there are high concerns that wrong medical products will directly harm the human life and body, the decision standards should be more strengthened. The decision standards should include the risk-effect standard as the considered components and make the customer-expecting standard as the final standard. The decision time for defection should be made considering the science technology level when the medical products were provided, not when the accident occurred. It is the most important for the manufacturers to prevent the damages by making and selling the non-defective medicine products for themselves, rather than by taking the legal remedy means afterwards. Therefore, the non-defective guidelines for the medicine manufacturers will help increase the effects and minimize the side-effects.

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소비자 제품과 관련된 휴먼에러의 예방을 위한 제품안전활동 (Product Safety Activities for Preventing Human Errors Related with Consumer Products)

  • 임현교;고병인
    • 대한인간공학회지
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    • 제30권1호
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    • pp.9-17
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    • 2011
  • Consumer products are produced on the premise that consumers can use their products safely and effectively no matter how serious human errors they may make. However, different careers and educational experiences of them may induce diverse human errors when they want to use them. In that sense, not a few policies to reduce human errors may show some implications for human error prevention and industrial design of consumer products. In this paper, producers' safety efforts required by Product Liability(PL) Act were reviewed in view of human error prevention, and legal aspects of manufacturers' responsibility for consumer products were discussed in relation to Product Liability Act. Then, principal approaches for them were introduced under the title of System Safety Precedence. After that, major key points for preventing human errors related with consumer products - such as ergonomic design and effective labeling - were discussed with reference to ISO standards. Therefore, it was shown that all the efforts required by PL Act would be correspondent to human error prevention in the whole manufacturing processes if understood by ergonomists. To make a conclusion, it could be said that, for human error prevention, the principle of System Safety Precedence would be indispensable, and that all the efforts for preventing human errors should be systematically organized in Product Safety Management Systems.

체선료의 책임주체와 그 범위에 관한 연구 (A Study on the Legal Party and its Extent of the Demurrage)

  • 김명재
    • 한국항해항만학회지
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    • 제37권6호
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    • pp.689-697
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    • 2013
  • 체선료는 운임의 일종으로서 항만에서 선박의 체항에 따른 시간적 손실에 대한 보상이다. 통상적인 항해용선계약에 따르면 체선료의 책임은 반대의 문언이 없는 한 용선자에게 있는 것으로 추정된다. 그러나 실무에서는 용선자의 책임이 제한되거나 송하인 또는 수하인 등 제3자에게 이전되어 선주가 체선료 확보에 어려운 상황에 직면하게 되는 경우가 빈번하게 발생되고 있다. 본 연구에서는 용선자, 송하인, 수하인, 선하증권의 배서인, 기타 이해당사자 간의 체선료지불 책임에 관한 문제를 영미법의 사례를 중심으로 살펴보고, 그 결과에 따른 시사점을 도출하여 선주나 용선자의 실무에 도움이 되는 방안을 제시한다.

의료분쟁조정법상 의료사고보상사업의 헌법적 쟁점 (A Constitutional Review on Compensation for Medical Malpractice during Delivery)

  • 전광석
    • 의료법학
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    • 제13권1호
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    • pp.295-329
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    • 2012
  • A medical malpractice case requires special legal protection, considering its characteristics, such as seriousness and long term effects of its damages, medical information asymmetry between practitioners and patients, and difficulties in realization of liability. Taking the points above into consideration, Medical Malpractice Arbitration Act of 2012(MAA) has legislative intent to protect the rights of the injured from medical malpractice, while protecting the stability of medical practice by providing arbitration as an alternative dispute resolution. However, constitutional review is required for one new scheme of compensation for medical injuries during delivery, which is implemented in MAA of 2012, especially with regard to freedom to exercise occupation, property, equality under the Constitution. Two important aspects are 1. according to the law, absolute liability applies to compensation for damages during delivery without negligence of practitioners; and 2. the practitioner bears some portion of the cost, 30% in the law above. This article aims to analyze this new institution in various aspects of the Constitution, and, as a result, it does not comply with constitutional criteria.

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Responsibility for Dissemination of Inaccurate Information on the Internet

  • Romanova, Vera;Nikitin, Yurii;Vozniuk, Natalia;Sverdlyk, Zoriana;Boichuk, Nelia;Kunderevych, Olena
    • International Journal of Computer Science & Network Security
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    • 제21권8호
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    • pp.137-140
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    • 2021
  • The article is devoted to the study of the issue of liability for the dissemination of inaccurate information on the Internet. The article emphasizes that now the public opinion of socially active segments of the population is mainly formed on the basis of not critical but subjective ("consumer") analysis of the received information. The modern realities show that the main source of its origin is the Internet: electronic media and, above all, the relevant social networks. The problem of dissemination by the mass media of inaccurate information obtained via the Internet is solved; it is seen in bringing the laws of Ukraine, which regulate public relations regarding the dissemination of information, into compliance with the Civil Code of Ukraine. The issues of development and implementation of new legislative acts aimed at regulating the status of subjects of informational relations on the Internet and establishing the grounds for their liability are also investigated.