• The Korean Society of Law and Medicine
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• v.20 no.1
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• pp.133-162
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• 2019

Due to the nature of medical malpractice lawsuits, it is difficult for medical consumers, who are weak in getting information when it comes to health care problem, to secure all information inside the hospital. Even if you are confident about the hospital infection, it is true that people have difficult to obtain medical testimony by expert. It is seen as no easy task to testify to the malpractice of colleagues who work in the same field not only in our country but also abroad, when a doctor gives negative testimony to another doctor in a medical malpractice lawsuit. Although few health care providers will be motivated to take medical care from the outset, testimony or statements from a medical practitioner can have a significant impact on the outcome of a lawsuit, as it is impossible for the patient to control or be aware of the whole process of medical conduct, especially in the event of a hospital infection and the victim. If the hospital can prove the causality of damages caused by negligence of the employees or supervision of the hospital itself in a medical suit caused by the infection, the level of protection of the victim could be raised further. We sought to find a solution to these problems by looking at the provisions of other laws related to hospital infection. In particular, as the comparative legal review regarding hospital infection, Germany's legislative precedent sets a medical contract as a typical civil law contract, so it is thought that looking at German civil law regulations also has implications for Korean law. We also tried to improve the French Special Act 'rights of patients' and we can look at the consequent changes in court cases. Finally, the content of the U.S. case's and the theory of 'the doctrine of res ipsa loquitur' in relation to it show that doctors and hospitals have been forced to shift the burden of proof through this theory. This paper tried to find out the implications of mitigating the burden of proof by reviewing various issues that might be related to medical litigation of hospital infection from a comparative point of view.

• Journal of Korean Society of Rural Planning
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• v.24 no.3
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• pp.87-96
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• 2018

While cities became bigger and bigger since 1990s, many indiscretely high buildings started to be built in the mountain areas inside a city and in the rural areas in the suburb of each city. To regulate such indiscrete developments, the government prepared for some relevant legal and institutional criteria by having enacted the "Landscape Act" and established a strong management means in the legal and institutional aspects by having introduced the natural landscape deliberation system and the landscape deliberation one into the "Natural Environment Conservation Act." However, since some uniform levels of absolute height and no. of stories are suggested legally and institutionally, it is hard to consider the effects of a real building structure onto the relevant landscape. Accordingly, this thesis is intended to grasp the contrast of the landscape elements in the allowable height section, which is presented through landscape sensitivity. As the results from the visual contrast rating on a small apartment complex located in Dangjin and a large scale of apartment complex in Seosan as the apartment complexes surrounded with natural landscapes that were selected as the subjects of this study, the following conclusion can be finalized. First, there were deducted some factors, that is, forms, lines, colors, textures and sizes as the ones with which can measure and evaluate the contrasting properties when a structure gets into a natural landscape. Second, in case of a small scale of apartment complex (in the foreground) compared to a large one (in the foreground), it was found that the contrasting properties were bigger. In addition, it was also found that the contrasting property of the landscape factor of the foreground compared to that of the middle one becomes bigger depending on a distance. Third, as the results from an evaluation on the contrasting properties of the landscape factor depending on the changes of each floor of a structure, it was found that the factors, that is, forms, lines, colors, textures and sizes are very significant. Among those factors, the factors, forms and lines in a small scale of apartment complex (in the foreground) showed each log regression. But in all of the other cases, they showed each line regression. Fourth, as the results from examining the regression coefficients of the landscape factor, the coefficients of the shapes and lines have similar coefficients and the colors and the textures have similar ones, too. In case of the sizes of apartment complexes, the colors and the textures of a large apartment complex (in the foreground) have similar coefficients, in case of that in the middle ground, the shapes and lines have similar coefficients. Fifth, as the results from estimating the contrasting properties of the landscape factor on the floors within the allowed scope of the landscape sensitivity, it was found that the contrasting property was 3.5 to 4.9 in case of a small scale of apartment complex (in the foreground), but 2.5to 3.7 in case of a small scale of one. In case of a large scale of apartment complex, the value was 3.5 to 5.3, but in case of a large one in the middle ground was 2.9 to 4.9. Sixth, it was comprehended that the contrasting properties of the landscape factor become different depending on each size of apartment complex and the distance of a view point. In this study, it is intended to find the meaning from the aspect that the results can be used as the baseline data for comprehending a proper range of heights of structures objectively during a natural landscape deliberation or a landscape deliberation.

• 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.

• The Korean Journal of Air & Space Law and Policy
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• v.25 no.1
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• pp.3-26
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• 2010

The European Union(EU) has recently introduced its Directive 2008/101/EC to include aviation in the EU ETS(emissions trading system). As an amendment to Directive 2003/87/EC that regulates reduction of the green house gas(GHG) emissions in Europe in preparation for the Kyoto Protocol, 1997, it obliges both EU and non-EU airline operators to reduce the emission of the carbon dioxide(CO2) significantly in the year 2012 and thereafter from the level they made in 2004 to 2006. Emission allowances allowed free of charge for each airline operator is 97% in the first year 2012 and 95% from 2013 and thereafter from the average annual emissions during historical years 2004 to 2006. Taking into account the rapid growth of air traffic, i.e. 5% in recent years, airlines operating to EU have to reduce their emissions by about 30% in order to meet the requirements of the EU Directive, if not buy the emissions right in the emissions trading market. However, buying quantity is limited to 15% in the year 2012 subject to possible increase from the year 2013. Apart from the hard burden of the airline operators, in particular of those from non-European countries, which is not concern of this paper, the EU Directive has certain legal problems. First, while the Kyoto Protocol of universal application is binding on the Annex I countries of the Climate Change Convention, i.e. developed countries including all Member States of the European Union to reduce GHG at least by 5% in the implementation period from 2008 to 2012 over the 1990 level, non-Annex I countries which are not bound by the Kyoto Protocol see their airlines subjected to aircraft emissions reductions scheme of EU when operating to EU. This is against the provisions of the Kyoto Protocol dealing with the emissions of GHG including CO2, target of the EU Directive. While the Kyoto Protocol mandates ICAO to set up a worldwide scheme for aircraft emissions to contribute to stabilizing GHG concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system, the EU ETS was drawn up outside the framework of the international Civil Aviation Organization(ICAO). Second, EU Directive 2008/101 defines 'aviation activities' as covering 'flights which depart from or arrive in the territory of a Member State to which the [EU] Treaty applies'. While the EU airlines are certainly subject to the EU regulations, obliging non-EU airlines to reduce their emissions even if the emissions are produced during the flight over the high seas and the airspace of the third countries is problematic. The point is whether the EU Directive can be legally applied to extra-territorial behavior of non-EU entities. Third, the EU Directive prescribes 2012 as the first year for implementation. However, the year 2012 is the last year of implementation of the Kyoto Protocol for Annex I countries including members of EU to reduce GHG including the emissions of CO2 coming out from domestic airlines operation. Consequently, EU airlines were already on the reduction scheme of CO2 emissions as long as their domestic operations are concerned from 2008 until the year 2012. But with the implementation of Directive 2008/101 from 2012 for all the airlines, regardless of the status of the country Annex I or not where they are registered, the EU airlines are no longer at the disadvantage compared with the airlines of non-Annex I countries. This unexpected premium for the EU airlines may result in a derogation of the Kyoto Protocol at least for the year 2012. Lastly, as a conclusion, the author shed light briefly on how the Korean aviation authorities are dealing with the EU restrictive measures.

• Journal of Legislation Research
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• no.44
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• pp.33-62
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• 2013

In this paper, the consolidation of ICT basic legislation and ICT special legislation concerning "Ministry of Science, ICT and Future Planning" and "Korea Communications Commission" which came on the back of governmental reorganization in recent years is discussed in the theoretical and practical aspect. Development of "data communication technology" innovatively changed the method of livelihood of mankind, the emergence of network under global dimension provided financial social benefit and posed a challenge and a threat at the same time. Form digital revolution human kind can expect to receive many important blessings. Nevertheless, there are many advantages of development of technology by digital revolution, cyberspace like online media, internet etc. has realistically many problems that must be solved. To maximum positive aspects like the expansion of freedom of expression and creating plan of economy by the advance of transmission technology is needed. And to minimize side effects of informatization is required more. The First, Special Act on ICT has an adaptation in normative standardization to be fit in media convergence beyond convergence of broadcasting and telecommunications. Henceforth, there must be established a legal basis for the achievement of protection of economic evolution and freedom of speech in digital media, information, communication technology and content development. The second, the government action is to accomplish economic development and freedom of information in structural aspect of norm. Therefore minimizing normative problem by reorganization of organization remains clearly unresolved in politics. The third, Special Act on ICT must be basic law covering info-communications field, pay telecommunication and media contents field. The forth, from a technical point of view, net neutrality, conflict of interest for digital content and so on can be fixed easily. Special Act on ICT must not only pursuit of development of industry. Special Act on ICT and pursuit of enhancing quality of life of people and preparing program to promote democratization. From now on, we need to make powerful nation of information& communications technology and in information human rights protection field got to be one step ahead of others with reference to appear all the various aspects must be brought together in the discussion of legislation process of Special Act on ICT.

• Journal of the Korea Society of Computer and Information
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• v.6 no.4
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• pp.188-205
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• 2001

Insurer's duty of declaration is based on reciprocity of principle of the highest good, and recently it is widely recognized in the British and American insurance circles. The conception of fiduciary relationship is no longer equity or the legal theory which is only confined to the nations with Anglo-American laws. Therefore, recognizing the fiduciary relationship as the essence of insurance contract, which is more closely related to public interest than any other fields. will serve an efficient measure to seek fair and reasonable relationship with contractor, and provide legal foundation which permits contractor to bring an action for damage against violation of insurer's duty of declaration. In the future, only when the fiduciary relationship is approved as the essence of insurance contract, the business performance and quality of insurance industry is expected to increase. Therefore, to keep well this fiduciary relationship, or increase the fiduciary relationship persistency rates seems to be the bottom line in the insurance industry. In this paper, we developed a fiduciary relationship maintenance ratio based on comparison by case, which is represented with usually maintained contract months to paid months, based on each contract of the basis point. In this paper we have developed a new business model seeking the maximum profit with low cost and high efficiency, management policy of putting its priority on its substantiality, as an improvement measure to break away from the vicious circle of high cost and low efficiency, and management policy of putting its priority on its external growth(expansion of market share).

• Journal of Venture Innovation
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• v.4 no.2
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• pp.97-108
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• 2021

Labor contracts appear in form as an exchange relationship between labor products and wages, but since they transcend the level of simple barter, they can be economically identified as "trading" and can be identified as "rental." From a legal point of view, a legal device that legally supports and imposes binding force on commodity exchange relations is a contract. Such a labor contract led to a relationship in which wages were received and a certain amount of time was placed under the direction and supervision of the employer as a counter benefit to the receipt of wages. Since working hours are subordinate hours with one's labor under the disposition authority of the employer, long hours of work can be done for the health and safety of workers and furthermore, it can be an act that violates the value to enjoy as a human being. The reduction of working hours needs to be shortened in terms of productivity and enjoyment of workers' culture so that they can expand and reproduce, but users' corporate management labor and production activities should also be compatible compared to those pursued by capitalist countries. Working hours can be seen as individual time and time in society as a whole, and long hours of work at the individual level are reduced, which is undesirable at the individual level, but an increase in products due to an increase in production time at the social level can help social development. It is necessary to consider working hours in terms of finding the balance between these individual and social levels. If the regulation method of working hours was to regulate the total amount of working hours, flexibility and elasticity of working hours are a qualitative regulation method that allows companies to flexibly allocate and organize working hours within a certain range of up to 52 hours per week. Accordingly, it is necessary to shorten working hours, but expand and implement the flexible working hours system according to the situation of the company. To this end, it is necessary to flexibly operate the flexible working hours system, which is currently limited to six months, handle the selective working hours by agreement between employers and workers, and expand the target work of discretionary working hours according to the development of information and communication technology and new types based on the 4th industrial revolution.

• Journal of Public Diplomacy
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• v.2 no.2
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• pp.27-52
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• 2022

Objectives: The neighboring countries of South Korea and Japan in Northeast Asia have interacted in both positive and negative ways, at times as close partners and other times adversaries, throughout their long and thorny history of extensive dynamics. The controversial dispute over Dokdo is one of the most critical issues evoking harsh tensions and arguments asserting wholly opposite claims. Dokdo is a small island between two coastal states, but significant in terms of territorial, botanical, and marine resources, and thus ownership of the island has become a point of conflict accompanied by a troubled history. But why has Dokdo been a source of conflicts and how should the controversial Dokdo issue be addressed in a way that fosters positive influence and co-prosperity? Methods: This study provides comprehensive and critical insights from a wealth of previous research and strategic suggestions for the Korean government. It utilizes the three perspectives of historical documents and political context, international regulations and legal frames, and public diplomacy. Furthermore, it applies these resources to negotiation theories and strategies to propose reasonable solutions. Results: This study suggests that it is important for Korea and Japan to try to build mutual trust through more active communication and interaction in order to understand each other before attempting to create a formal resolution via negotiation. In addition to these efforts, Korea needs to be ready for the inevitable need to take decisive action in terms of negotiation, using analytic and efficient strategies. The study proposes three solutions: 1) Strong Action Strategy, 2) International Legal Strategy, and 3) Public Diplomacy Strategy. Conclusions: From the perspective of public diplomacy, the Dokdo issue needs to be converted from a symbol of conflicts between Korea and Japan into a symbol of peace and co-prosperity. In addition to promoting a positive relationship between the two states, it can also contribute to the security environment of the Northeast Asian region and global peace.

• Journal of Arbitration Studies
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• v.27 no.4
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• pp.199-222
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• 2017

Currently, many punitive damages (or statutory damages) and class action laws are discussed in relation to the consumer damage relief system. It is in the background of the argument that the introduction of such a victim relief system will solve many small and large consumer damages. There are many cases in which the punitive damages compensation or the class action system are introduced in relation to the food safety damage naturally. Although the introduction of such a system can clearly help the consumer to relieve large-scale damage, it can not solve all the problems at once because the company can reject the system despite the introduction of such a system. In particular, class action lawsuits should have the same type of damage, but most of the damage caused by food safety is accompanied by physical harm, resulting in various complications such as the physical characteristics of the victim, the health environment. The class action system may not provide a solution in that the content and type of the damage may be different. In this regard, this study aims to investigate the introduction of the food safety damage relief system through the introduction of an administrative dispute settlement system by an administrative agency that occupies an absolute position in the existing consumer protection from this point of view. In reality, the Food and Drug Administration, which is the largest among government agencies related to food, operates a passive attitude consumer protection system such as function like guidance, supervision and surveillance. And it is necessary to make a complementary proposal. In the current law, there is only a small part of the consumer protection work that is positively legal, and even after the damage is scientifically identified, it is not possible to present the solution to the damage suffered by the consumer through legislation. This is a fact that has been raised. In this paper, we propose a reasonable and rapid disaster relief procedure through a separate mechanism within the administrative agency, which is the administration agency, that the dispute settlement procedure due to food safety damage is insufficient by solving the case through the court through counseling, dispute adjustment and civil proceedings. In order to solve the problem of food insecurity and the food industry, various ways of rational solution of the problem were considered. The possibility of (1) Establishment of a food safety dispute resolution committee; (2) Establishment of a food safety disaster relief committee; and (3) Establishment of a food safety disaster relief committee was discussed. In addition, a plan for the creation of a food damage compensation fund was also proposed.

• Strategy21
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• s.31
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• pp.57-84
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• 2013

North Korea's continuous threats and provocative behaviors have aggravated tension on the Korean peninsula particularly with the recent nuclear weapons test. South Korea's best way to cope with this situation is to maintain the balance among three policy directions: dialogue, sanctions, and deterrence. Among the three, I argue that deterrence should be prioritized. There are different sources of deterrence such as military power, economic power, and diplomatic clouts. States can build deterrence capability independently. Alternatively, they may do so through relations with other states including alliances, bilateral relations, or multilateral relations in the international community. What South Korea needs most urgently is to maintain deterrence against North Korea's local provocations through the enhancement of independent military capability particularly by addressing the asymmetric vulnerability between militaries of the South and the North. Most of all, the South Korean government should recognize the seriousness of the negative consequences that North Korea's 'Nuclear shadow strategy' would bring about for the inter-Korea relations and security situations in Northeast Asia. Based on this understanding, it should develop an 'assertive deterrence strategy' that emphasizes 'multi-purpose, multi-stage, and tailored deterrence whose main idea lies in punitive retaliation.' This deterrence strategy requires a flexible targeting policy and a variety of retaliatory measures capable of taking out all targets in North Korea. At the same time, the force structures of the army, the air force, and the navy should be improved in a way that maximizes their deterrence capability. For example, the army should work on expanding the guided missile command and the special forces command and reforming the reserve forces. The navy and the air force should increase striking capabilities including air-to-ground, ship-to-ground, and submarine-to-ground strikes to a great extent. The marine corps can enhance its deterrence capability by changing the force structure from the stationary defense-oriented one that would have to suffer some degree of troop attrition at the early stage of hostilities to the one that focuses on 'counteroffensive landing operations.' The government should continue efforts for defense reform in order to obtain these capabilities while building the 'Korean-style triad system' that consists of advanced air, ground, and surface/ subsurface weapon systems. Besides these measures, South Korea should start to acquire a minimum level of nuclear potential within the legal boundary that the international law defines. For this, South Korea should withdraw from the Nuclear Non-proliferation Treaty. Moreover, it should obtain the right to process and enrich uranium through changing the U.S.-South Korea nuclear cooperation treaty. Whether or not we should be armed with nuclear weapons should not be understood in terms of "all or nothing." We should consider an 'in-between' option as the Japanese case proves. With regard to the wartime OPCON transition, we need to re-consider the timing of the transition as an effort to demonstrate the costliness of North Korea's provocative behaviors. If impossible, South Korea should take measures to make the Strategic Alliance 2015 serve as a persisting deterrence system against North Korea. As the last point, all the following governments of South Korea should keep in mind that continuing reconciliatory efforts should always be pursued along with other security policies toward North Korea.