• 철학연구
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• 제123권
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• pp.245-279
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• 2012

이 논문의 목적은 법실증주의의 대표적인 인물인 한스 켈젠의 자연법론 비판을 소개하고, 이 비판이 안고 있는 몇 가지 문제점을 적시하는 데 있다. 켈젠의 자연법론 비판의 핵심은 모든 자연법이 존재에서 당위를 연역하는 심각한 오류를 범하고 있다는 것이다. 여기에 대하여 본 논문은 켈젠의 시각이 지나치게 편협하다는 것을 보여주고, 그가 법실증주의라는 진중(陣中) 논리에 지나치게 경도되어 있다는 점을 보여주고자 한다. 첫째, 켈젠은 여러 가지 논리적 오류를 범하고 있다는 점을 보여준다. 둘째, 그가 말하는 자연은 오직 자연과학의 대상이 되는 자연이다. 따라서 자연에 대한 개념을 너무 좁히는 잘못을 범하고 있다는 점을 보여주고자 한다. 셋째, 모든 자연법론자들은 자연, 즉 존재로부터 당위를 연역하는 오류를 범하고 있다는 켈젠 비판의 논리적 편협성을 지적하고자 한다. 넷째, 자연법론자들은 모두 자연법 체계를 연역적으로 도출한다고 켈젠은 주장한다. 그러나 켈젠의 이런 주장은 소수의 자연법론자들에게 만 타당하다. 마지막으로, 켈젠의 비판을 벗어날 수 있는 건전한 자연법론으로서 칸트의 자연법론과 마리땡의 자연법론을 짤막하게 소개하고자 한다. 그리고 이들의 자연법론의 건전성을 부각시키고자 한다.

• 혜화의학회지
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• 제16권2호
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• pp.99-107
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• 2007

Keeping in step with four seasons, Spring, summer, autumn, and winter, the heaven and earth(天地) has been born(生), grown(長), coverted(化), gained(收), and kept(藏) by interaction of yiyang and yuqi(五氣: 木火土金水). And according to Naiching, human being is born with energy of heaven and earth(天地之氣) and is grown with the law of four seasons(四時之法). So, we now know that the human's body and nature interact each other. The oriental medical science has been studied the effect that the nature's change influences on human body. Now, I get some idea that using herb medicine and acupuncture should have hanged following the change of four seasons. We know that there is a cycle in nature. Every day sun arise and down, and every month moon gets full and new. And every year, four seasons orderly change, from spring to winter. All of this is the law of nature and human body adapts this law. Man always shows the physiological phenomena which changes under the law of nature, especially the turning of the seasons. Therefore, we should use different medical methods in different seasons.

• 의료법학
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• 제7권2호
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• pp.179-218
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• 2006

To succeed the claim of medical negligence, the plaintiff should establish the medical profession's fault, and the causation between the fault and damages. The faults are judged on lege artis, which is based on expert witness. However, judges often infer the faults and causations from circumstantial evidences and patients' injuries. This presumptions depend on the law of nature(Erfahrungsgesetz). The law of nature can explain the typical development of the event. If the circumstantial evidences were in accordance with that, the faults and causations would be able to be recognized by the judges. Therefore the standards of comparison such as lege artis or the law of nature play an important role for medical negligence liabilities to be imputed to doctors or hospitals. The factual elements necessary to assume the fault is similar to those of the causation, for the concept of the fault is correlated with that of the causation. The elements include the temporal and spatial proximity between damages and defendant's medical treatments, no existence of other causations, the probability of bed results developed by the medical treatments, and so on. These enable the fault and causation to be assumed at the same times.

• 한국항해학회지
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• 제5권1호
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• pp.37-48
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• 1981

There are more damages from collision at sea because of the multiple reasons of sea conditions. For the purpose of avoiding collision at sea, Internaitonal Regulations for Preventing Collision at Sea, 1972 as an international convention is in force having the nature of international navigating law. According to the nature of the convention and the principle of legislation of the convention, not only it has the preventing nature on collision but it is a basic rules to make clear the faults of collision between vessels by the admiralty court in the developed maritime countries. Since there is no so much case law on it in this country and not to fixed the legal theory to define the faults of collision in civil law as per the above convention, the further study of the civil liability on collision based upon the above convention shall be recognized in the principle of fair of the civil law.

• 의료법학
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• 제11권2호
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• pp.75-112
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• 2010

This article analyses the concept of medicine in the legal context. It is not easy to define the concept of medicine because medical practice has various dimensions and the situation in which the practice is performed has a broad variety. The duty of medical law is to build the boundary of protection in that the nature of medicine would not be distorted by the factors of social systems like industry or governmental authorities. Without understanding the various dimensions - especially the dimension of Humanities and Sociology - of the medicine it is not possible to draw the limit on the performance of medicine appropriately. Concerning the medical practice (especially in the context of the regulation of medical licence), the enacted law (Medical Act) defines the concept just for form's sake and it finally depends on the interpretation of the legal enforcement authorities. Moreover, between the judgments of the courts there exists no coherent principles for the regulation and the interpretation of the Medical Act depends often on the riskiness, the abstract concept, which finally leads the interpretation to depend on the subject of the practice. On the contrary, the development and scientific movement of the technology tends to tighten the range of the medical professionals of medical practice and the perspectives of the medicine. Medical act is actually oriented at the patient's understanding of him- or herself. The above-mentioned tendency of the interpretation and the legal policy could lead the medicine away from its nature.

• 무역상무연구
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• 제44권
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• pp.31-55
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• 2009

This study attempts to provide a comparative overview of the liability systems Korean law and the PELS adopt, that is, the approaches taken by Korean law and the PELS to deal with various irregularities of contractual performance. In addition, it examines in a comparative way the questions of what is the position of the seller's liability for his delivery of defective goods under the chosen liability system and what is the legal nature of the seller's liability. The study finds that the dual liability system taken by Korean law has caused some complexities as to the matter of which liability is applicable in some borderline cases. The problem in such complexities is originated in that the remedies available and the limitation period applicable are differentiated in accordance with one's different categorization among three types of default under the general liability and defective performance under the seller's guarantee liability. In this light, the study argues that the unified liability system under the PELS is superior because its concept of non-performance embraces in a unitary manner all the aspects of default including defects in quality, quantity and title. In addition, it finds that Korean law has suffered endless debates on the question of what are the true contents of the same remedies of rescission and damages provided under the seller's guarantee liability as under the general liability. The debates have been come along on the basis of the traditional presumption among some of civil law jurisdictions that two liabilities be different in terms of not only their legal nature but also their contents of remedies. The study argues that the problem may be circumvented, first, by another way of thinking that the unified liability in Korean law is inferred from the specification of the identical remedies for both the general liability and the seller's guarantee liability under the KCC, second, by the preposition that the requirement of fault be depended upon what remedy the buyer seeks to claim rather than what liability he does to rely on.

• 수산해양교육연구
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• 제5권1호
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• pp.15-22
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• 1993

The Maritime Traffic Safety Law of P. R. China has not the legal nature of navigation rule which regulates the vessel traffic directly but has the legal nature of management to ensure the safety and good order of the whale marine traffic. For that reason, the legal status of this Law is a general basic norm for the marine safety regulations rather than a definite enforcement regulation. This Law does not have any clear statements on adaptation of the steering and sailing rules of the International Regulations for Preventing Collisions at Sea, but it can be presumed the Convention would be applied on the viewpoint of the international practice. The subject matter of this Law is easily understandable, because the IMO and shipping countries have already made similar legislation. Since the maritime traffic condition of the P. R. China also has a direct effect upon the Korean coastal waters, it is essential to observe closely the process of enforcement and development of the P. R. China's Maritime Traffic Safety Law.

• 한국주거학회논문집
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• 제26권6호
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• pp.53-60
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• 2015

This study identifies the common problems faced by the owners of strata titles, the Management Corporation, the Joint Management Body, the Commissioner of Building (COB) as well as the Managing Agent being the stakeholders in managing strata properties. The methods employed are qualitative in nature. Analysis is done based on reports published by the relevant authorities dealing with strata residential properties as well as the case law as reported in the two leading journals in Malaysia such as the Malayan Law Journal and the Current Law Journal. The types and nature of problems are derived from the annual reports. The extent of the problems is determined based on the figures and supported by observation and interviews with the COB, being the agency directly involved in overseeing and monitoring strata properties management. The findings show that a substantial number of problems exist in the management of strata properties despite a law that allows the owners to self-managed their own properties. Having stated the status quo concerning the problems, the study also looks at the various means of resolving disputes as exist under the Malaysian housing system. The study proposes that alternative dispute resolution (ADR) modes are more appropriate in ensuring the sustainability of strata living and management.

• Safety and Health at Work
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• 제12권3호
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• pp.365-369
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• 2021

Background: Law enforcement communications (i.e., 911 dispatch and call takers) is a challenging and stressful occupation. The purpose of this study is to identify the main stressors associated with employment in law enforcement communications, and to identify and provide context to how these stressors affect workers' health and wellbeing. Methods: This research study included focus groups with 23 call takers and 911 dispatchers employed by a large, urban law enforcement agency in 2018. Thematic analyses were conducted to identify trends. Results: Four themes of stressors emerged (i.e., the high stakes nature of some 911 calls for service, understaffing, supervisor-related stress, and recruiting practice). Two health-related themes emerged as being occupation-related: weight gain and poor sleep patterns/insufficient sleep). Specifically, participants reported negative eating habits resulting in weight gain and obesity, lack of sleep and irregular sleep schedules, and development of hypertension and/or diabetes since beginning their jobs. Conclusion: Law enforcement communications professionals experience a number of the same stressors facing law enforcement officers in patrol. These stressors, combined with the sedentary nature of the job, could result in long-term, chronic health problems.

• 한국중재학회지:중재연구
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• 제12권1호
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• pp.55-88
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• 2002

Arbitration Act does not have express provision about voluntary agreement for the arbitration which third party, that is, the expert confirms factual bases of party's relationship of rights and duties, determines contents of the contract, and supplements or modifies contracts, and then the parties obey the expert's decision, but it is more probable that the parties can agree to this kind of arbitration agreement as long as they freely make a contract within the scope of law. However, there is a split of authority on the scope of such arbitration agreement. Some scholars argue that the parties can only agree on the extent of the expert's confirmation about factual situations of party's relationship of rights and duties or contents of the contract. On the other hand, the other scholars argue that the parties can consent not only the expert's confirmation about factual situations of party's relationship of rights and duties or contents of contract, but also the expert's supplement or modification of contents of contract. Due to the expert's decision has effect on both parties and judges who give a judgment as a matter of law, this kind of arbitration agrement can contribute to prevent litigation. Also arbitration relieves court's burden, if such arbitration agreement was done on the important disputes. Considering that the arbitration agreement can function as a dispute resolution or a dispute prevention, it is desirable that legislators make the provision about this kind of arbitration and allow the application of arbitration Act in such arbitration agreement. Most scholars agree that the voluntary agreement for the arbitration as to third party's supplement or modification of contents of the contract can be included in the concept of a substantive law. However, it has not been concluded whether the voluntary agreement for the arbitration which follows the expert's confirmation about factual situations of party's relationship of rights and duties or contents of the contract has the nature of substantive law or procedural law. The dispute about the nature of such arbitration agreement have some shortcomings in the effect of second kind of voluntary arbitration and the applicability of procedural principles. Therefore, it will be more adequate that the focus is given to the original function of this kind of arbitration agreement and the applicability of procedural principles (the neutrality of arbitrator, the assurance of hearing of the parties) rather than the dispute regarding the nature of this kind of arbitration agreement. Considering that more attention is given to the substitutive dispute resolution these days, the function of arbitration as prevention to the litigation and resolution before the litigation should be emphasized. To do this, a legal dispute about such arbitration agreement has to be resolved. More important issues in this kind of arbitration agreement are to retain of the neutral expert and to positively inform the benefits of this institution to the public.