• Korean Security Journal
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• no.43
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• pp.177-204
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• 2015

The Korean Criminal Code ${\S}10$ (1) provides that "The act of a person who, because of mental disorder, is unable to make discriminations or to control one's will, shall not be punished". Therefore, it'll not be able to be given criminal punishment if a mentally defective person is determined to lack the criminal liability. The problem about judging the criminal liability for the mentally defective person exists in areas where the criminal law intersects with psychiatry. Although the supreme court ultimately judges whether the criminal liability by mental defectiveness exists or not, the judgment of mental defectiveness, which is biological element, needs psychiatric knowledge and it is no wonder to rely on this. In particular, a change is required in the procedure and contents of mental examination for a mentally defective person as implementation of the Civil Participation in Criminal Jury Trial. It is needed the improvement of procedure to submit more accurate mental examination and the result of it in order that jurors are able to understand the result of mental examination and make an decision. This is because jurors consisting of ordinary citizens take part in trial. For guaranteeing the precise result of mental examination in the criminal justice procedure, it is necessary to establish the pool of manpower consisting of psychiatrists or psychologists who have completed the specific educational programs about the criminal justice and legal psychiatry, and it is desired to carry out the psychiatric test with selecting appraisers who belong to a pool of manpower. Furthermore, it is required to draw up and submit the written appraisal of mental examination which is easy to be known because of considering the nonprofessional of jurors consisting of ordinary citizens in the Civil Participation in Criminal Jury Trial. In order to gain a fair verdict of the jury about whether mental defectiveness exists or not, it is recommended the prompt submission of the written appraisal of mental examination, the presentation of the written appraisal of mental examination summarizing the important contents, and making out the written appraisal of mental examination for jurors to understand it easily.

• The Korean Society of Law and Medicine
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• v.16 no.2
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• pp.55-84
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• 2015

The tuberculosis is the infectious disease. Generally, the active tuberculosis patient can infect the 10 persons for one year within the daily activities like casual conversation and singing together. The infectivity of tuberculosis can continue for a life time, and infected persons can remain at risk for developing active tuberculosis. To control this contagious disease, along with the active tuberculosis patients, non-infectious but non-compliant patients who can be infectious if their immune systems become impaired have to be managed. To control the non-complaint patients, medical treatment order should be combined with the public order. Because tuberculosis is the risk of community health, the human rights like liberty and freedom of movement can be restricted for public welfare under the article 37(2) of constitution. Even when such restriction is imposed, no essential aspect of the freedom or right shall be violated. The degree of restriction on the rights of citizens is different what methods are chosen to non-complaint patients. For example, under the directly observed therapy program, the patients and medical staffs make an appointment and meet to confirm the drug intakes according to the schedule, which is the medical treatment combined with the mildest public order. If the patients break the appointments or have the history of disobedient, the involuntary detention can obtain the legitimate cause. The Tuberculosis Prevention Act has the two step programs on this involuntary detention, The admission order (Article 15) is issued when the patients are infectious. The quarantine order (Artle 15-2) is issued when the patients are infectious and non-complaint. The legal criteria for involuntary detention are discussed and published through the international conventions and covenants. For example, World Health Organization had made guidance on human rights and involuntary detention for tuberculosis control. The restrictions should be carried out in accordance with the our law and in the legitimate objective of public interest. And the restriction should be based on scientific evidence and not imposed in an unreasonable or discriminatory manner. We define and adopt these international criteria under our constitution and legal system. Least restrictive alternative principle, proportionality principle and the individual evaluation methods are explained through the reviews of United States court decisions. Habeas Corpus Act is reviewed and adopted as the procedural due process to protect the patient rights as a citizen. Along with that, what conditions and facilities which are needed to performed quarantine order are discussed.

• Journal of Legislation Research
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• no.53
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• pp.525-551
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• 2017

This Article discusses the current trend of European competition damage actions focused on the recent Damage Directive and its transposition by the United Kingdom and Germany. The relevant Directive was signed into law in November 2014, and it requires the EU Member States to adopt certain measures to support competition damage actions. The required measures and principles by the Directive include right to full compensation, rebuttable presumption of harm, extensive disclosure of evidence, use of pass-on for defense and indirect purchaser suits. Although many Member States did not meet the deadline to transpose the Directive, the end of 2016, it is reported that 23 Member States have now, as of September 2017, made enactments according to the Directive. When we look at the transposition done by the United Kingdom and Germany, the revisions on their competition laws closely follow the contents of the Directive. However, it will take quite a long time before the amended provisions apply to actual cases since most of the new provisions apply to the infringement that take place after the date of the amendment. A similar situation regarding application time may happen in some other Member States. Furthermore, even if the terms of the competition laws of the Member States become similar following the Directive, the interpretations of the laws may differ by the courts of different countries. EU also does not have a tool to coordinate the litigations that are brought in different Member States under the same facts. It is true that the EU made a big step to enhance competition damage actions by enacting Damage Directive. However, it needs to take more time and resources to have settled system of competition private litigation throughout the Member States. Korea has also experienced increase in competition damage actions during the last fifteen years, and there have been some revisions of the relevant fair trade law as well as development of relevant legal principles by court decisions. Although there are some suggestions that Korea should have more enactments similar to the EU Directive, its seems wiser for Korea to take time to observe how EU countries actually operate competition damage actions after they transposed the Directive. Then, it will be able to gain some wisdom to adopt competition action measures that are suitable for Korean legal system and culture.

• Journal of Legislation Research
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• no.44
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• pp.571-610
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• 2013

The current patent system is more often used for defensive purposes to exclude others' use or as a means to hold unfair strong positions in negotiations rather than for the original purpose as the dissemination and active use of useful technology. An injunction together with a damage is an important remedy for patent infringements. However, unlike a claim for damages, injunctions do not require the subjective requirement of intent and negligence or the occurrence of loss. If the validity of the patent and the fact of infringement are confirmed, automatically injunctions are issued without consideration of other circumstances. So a patent holder would exclude others' use and have a powerful position in negotiations because of injunctions for patent infringements. Therefore, those injunctions for patent infringements should be flexibly restricted according to cases under the premise to ensure fair compensation for the patent owner, rather than absolutely admitting injunctions for patent infringements like now. If then, it would serve the use of a useful technology and industrial development as the purpose of the patent system. First of all, judgments for preliminary injunctions should be strict and by deliberate decision on the merits permanent injunctions should be determined. In addition, it is needed that court's discretion possible to considerate 'the need for an injunction'. When the courts judge 'the need for an injunction', 'whether a patent holder has implemented a patent invention, the possibility of monetary compensation and the ability of the infringer for damages, a patent holder's intent to license and whether an injunction has been used as a weapon of negotiation, the proportion of patent technology in the entire products, the characteristics of patent technology and the possibility of patent invalidity, the competitive relationship for market share, the public interests and gains and losses between the parties and so on' should be considered. After these judgements, if 'the need for an injunction' is not approved, a patent owner would be protected by post-monetary compensation. However, because damages are related to illegal conducts in the past, in the case that an injunction is restrained, measures to ensure the legal implementation in the future are needed. It is primarily desirable that reasonable royalty is estimated throughout private negotiations between parties, but if agreement between the parties does not occur, patent owner should be able to claim the royalty for future.

• (The) Research of the performance art and culture
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• no.36
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• pp.603-647
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• 2018

During the Japanese colonial era, Chosun Central Young Men's Christian Association Hall, Gyeongseong Public Hall, or Bumingwan was used as multipurpose space where various performances or events were held. Although traditional music performed in each of the places did influence the remaining of traditional music in existence as well as the vitalization of traditional musicians' activity, since these places were mostly for Western music or other genres, no research has been carried out to study the performance of traditional music there in detail. The purpose of this study is to understand the aspects of performing traditional music in multipurpose places mentioned above. Reviewing newspaper materials of the time, this author has examined the aspects of performing traditional music in each of those places in terms of the forms of performances performance programs performers as well as performing groups the aspects of development. First, this researcher considered in what forms traditional music was performed in each of the places mostly. About performance programs, this author divided them into instrumental music, vocal music court music, and folk music. Regarding performers, this study divided them into instrumental music and vocal music professional performers and unprofessional performers male and female master singers and gisaeng and figured out the importance of each of them in different places. Also, concerning the appearance of performers and performing groups, this researcher studied how it was associated with the space, and about the aspects of performance, how it was developed in different periods was examined. In that process, this author has learned that the aspects of performing traditional music in the space were significantly influenced by the characteristics of each space and has clearly and concretely understood performing programs as well as the aspects of performers and groups' activity. With this research as an opportunity, this author expects that research will be actively conducted on the performance of traditional music in each of the places that have not been studied yet and it can contribute to figuring out the development or trends of performing traditional music during the Japanese colonial era.

• Journal of Korean Philosophical Society
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• v.117
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• pp.327-354
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• 2011

This study has a key assumption that 'characteristics of discouse can be found in not its inside, but its outside'. The prism through which we can see those characteristics was provided by Foucault and Bakhtin who were introduced in the study. As an effort co probe the outside of discourse, the study is briefed 'the three attributes of discourse' that were suggested by Foucault First, discourse has the principle of selection and exclusion, which is based on power relations. Second, discourse is not transparent at all since it is always offensive towards other discourses and defensive against selected ones Third, discourse which is naturally accepted because of its dailiness had a deep structure secretly hidden in it. Based on the above attributes, Foucault and Bakhtin paid their attention to the outside of discourse. Specifically, they considered discourse fundamentally and went beyond it, and reflected the procedures of discourse. This study focused on 'Socrates', something common in the two scholars' works with discourse. In dealing with discourse, Bakhtin started with 'Socratic dialogue' that is based on the dialogic nature of human thoughts which purse the truth. For Foucault, it was Socrates who had the 'courage to cell the truth' and practiced 'self-consideration'. According to Foucault, the ethics of self-practice originated from the philosopher. The ethics is neither the precise representation of individual life that is withdrawn towards the inner self, nor the skills of happiness. It is just relational and cross-sectional. For a better understanding, this study pointed out that Kafka created a variety of 'dialogic voices' focusing on the outside of discourse. Dialogues found in his writings are 'interminable dialogues' that truly 'communicate with different times and different spaces'. For example, his novel, 'Der Prozess' opens the possibility of discussing in various ways the court which is look beyond conventions and extraordinary. Kafka's novels have a structure that their starting point found at the introduction reappears at the termination, presenting multi-vocal dialogues.

• Korean Journal of Heritage: History & Science
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• v.52 no.1
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• pp.90-119
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• 2019

The purpose of this study is to investigate the significance of Buddhist stone art in the cultural zone of Mt. Bukhan. Mt. Bukhan witnessed the prevalence of Buddhist culture in and around it since the introduction of Korean Buddhism and served as the center of Buddhist culture in the nation, where new Buddhist temples continued to be built from the Three Kingdoms Period to the Joseon Period. Of the characteristics of its Buddhist culture, it is very noteworthy that the construction of military temples in and around it in the latter half of Joseon supported the function of Buddhist temples as basic places of worship. These military temples were closely related to the mountain's geopolitical location, traffic routes, and position in the national defense system-- its mountain fortress was an important defense facility. The stone art works of Mt. Bukhan can be categorized into various types, including stone stupas, stone pagodas, rock-carved Buddhas, stone Buddhas, towers and monuments (stone monuments), stone lanterns, flagpole supports, and rock-carved sarira pagodas. There are diverse types of stone art left on the mountain. As for its period characteristics, it is clear that the Buddhist art of Silla spread even to the Gyeonggi region, and that most of the works of stone art were created during the first half of Goryeo and the latter half of Joseon. Starting in Goryeo, the Buddhist temples of the mountain maintained close relations with the royal court by operating as the royal buddhist shrine for the royal family. In the latter part of Joseon, the construction of the Bukhan mountain fortress became the most important opportunity to produce stone art. As for the distribution of the stone artwork, it was usually created in the west part of the mountain from Unified Silla to the first half of Goryeo and in the southern and eastern parts of the mountain from the latter half of Goryeo to the latter half of Joseon. It is estimated that central Buddhist temples of the mountain changed due to Silla's military goal of advancing toward the west coast along the Han River in its early days and the construction of the Bukhan mountain fortress in the latter half of Joseon to protect the capital city. Finally, the stone art of Mt. Bukhan holds very high significance in art history because various types of stone art continued to be created on and around the mountain, the stone artwork of the mountain reflected representative styles for each period, and e rare and ofthe works produced on the mountain exemplified rare and unique styles.

• Korean Journal of Heritage: History & Science
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• v.47 no.1
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• pp.66-81
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• 2014

Burnt down during the Imjin War(壬辰倭亂) of 1592, Gyeongbokgung Palace(景福宮) remained in ruins until 1865, when in the second year of King Gojong's(高宗) reign, reconstruction work began. At the time, a royal protocol(uigwe, 儀軌) for the reconstruction was not produced. Instead, the Gyeongbokgung Palace Construction Diary(Gyeongbokgung yeonggeon ilgi, 景福宮營建日記) records the reconstruction process from June to September of 1865. The contents of this diary reveal that the stone used in the construction was obtained from Ganghwa(江華), the Yeongpung field(映楓亭) just beyond Dongdaemun, and Samcheongdong(三淸洞), among other sites. In addition, selected stone remaining from the original Gyeongbokgung Palace site - such as that from the palace astronomical observatory(ganuidae, 簡儀臺) - as reused, while a number of buildings and stonework from Gyeonghuigung Palace(慶熙宮) were moved to Gyeongbokgung Palace. As a result, a number of $17^{th}$ and $18^{th}$ century stonework are currently located at Gyeongbokgung Palace. The Gyeongbokgung Palace Construction Diary contains a record indicating that the bronze dragon(靑銅龍) excavated from the lotus pond at the palace's Gyeonghoeru Pavilion(慶會樓) was created by special technician byeolganyeok(別看役) Kim Jae-su(金在洙) in 1865 for the symbolic purpose of protecting the palace from fire. The diary also reveals that among Kim Jae-su and the other special technicians(byeolganyeok) tasked with the installation and oversight of the palace stonework was Lee Se-ok(李世玉) - aid to have created the haechi statue at Gwanghwamun Gate. This indicates that there were men of court painter(hwawon, 畵員) background among the construction special technicians(byeolganyeok). Moreover, the diary records the names of the stoneworkers(seokjang, 石匠) who worked under these special technicians to actually carve the stonework. These included Jang Seong-bok(張聖福), who participated in the creation of the Geunjeongjeon Hall(勤政殿); and Kim Jin-myeong(金振明), who took part in the construction of Gwanghwamun Gate(光化門). Based on these results, it is possible to identify a number of special iconographic features of the scale-covered animal form(insuhyeong, 鱗獸形) auspicious animal statues at Gyeongbokgung Palace. These include a protruding mouth and large nose, formalized ears, and a mane along the back. Comparing these iconographic features with those found in the stonework of Joseon tombs makes it clear that these palace statues were created in the latter half of the $19^{th}$ century - the period corresponding to Gojong's palace reconstruction. This study was able to confirm that this iconography was taken up by the Gyeongbokgung Palace construction special technicians(byeolganyeok) and stoneworkers(seokjang) as they worked on tomb stonework earlier in their careers.

• Korean Journal of Heritage: History & Science
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• v.51 no.2
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• pp.4-21
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• 2018

This paper reviewed the legitimacy of the name of those sixteen pieces of hat artifacts known in Korean as pyeongjeongmo and currently housed by the National Palace Museum. This was undertaken in order to rectify the error of calling them pyeongjeongmo. Also, the paper suggested pyeongjeongmo's production method to apply representation of the artifacts or production of Joseon officials' hats as representation of ritual costumes in the royal court. The name pyeongjeongmo originated from pyeongjeonggeon. Gyeongguk Daejeon recorded that noksas wore yugak-pyeongjeonggeon and seoris wore mugak-pyeongjeonggeon, but the pyeongjeongmo artifacts housed in the National Palace Museum have been found irrelevant to those pyeongjeonggeons put on by both noksas and seoris. Rather, they has been confirmed as corresponding to dugeon or jogeon worn by byeolgams or suboks who served at the palace of the crown prince or princess. Through the investigation of the artifacts, the researchers could find out the tailoring and sewing methods, the finished look, and the folding manner of pyeongjeonggeon. Although the structure of pyeongjeonggeon was generally consistent, the frontal look was slightly different depending on the folding manner, resulting in three distinguished types of pyeongjeonggeon. Regardless, the pyeongjeongmo was made with one piece of fabric by a flat tailoring and folding method to create a three-dimensional hat. The finished shape appeared low in the front and high in the back side structure. The head girth was 55~59 cm, and the height was 19.4~21.5 cm. To make it with one piece of fabric, the head girth part was tailored in the same direction as the strands. Based on the artifact Changdeok 23820, this paper has also suggested a finished reproduction through the processes of preparing the materials, mounting, making the center ornaments, sewing and folding. The tailoring was completed with black silk fabric which was cut in a unique shape designed in advance, and hemp fabric which was mounted to the former. The top part of the head was finished with black threads, and the center line at the back was fixed with decolored cotton threads by blanket stitches with 3.5~4 cm intervals. Bamboo strands were inserted in the inside of the front-folded part, which then was fixed by patterned stitches with white cotton thread. At the back, a small bamboo clasp was attached so that one can lock it to the headband and prevent it from falling off.

• The Korean Journal of Air & Space Law and Policy
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• v.33 no.2
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• pp.61-114
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• 2018

Recently airspace became a hot issue considering today's international relations. However, there was no data that could be fully explained about a legal system of korean airspace, so I looked at law and practice about korean airspace together. The nation's aviation law sector is comletely separate from those related to civil and military aircraft, at least in legal terms. The Minister of Land, Infrastructure and Transport shall carry out his/her duties with various authority granted by the "Aviation Safety Act". The nation's aviation-related content is being regulated too much by the Ministry of Land, Infrastructure and Transport's notice or regulation, and there are many things that are not well known about which clauses of the upper law are associated with. The notice should be clearly described only in detail on delegated matters. As for the airspace system, the airspace system is too complex for the public to understand, and there seems to be a gap between law and practice. Therefore, I think it would be good to reestablish a simple and practical airspace system. Airspace and aviation related tasks in the military need to be clearly understood by distinguishing between those entrusted by the Minister of Land, Infrastructure and Transport and those inherent in the military. Regarding matters entrusted by the Minister of Land, Infrastructure and Transpor, it is necessary to work closely with the Minister of Land, Infrastructure and Transport when preparing related work guidelines, and to clarify who should prepare the guidelines. Regarding airspace control as a military operation, policies or guidelines that are faithful to military doctrine on airspace control are needed.