• 무역상무연구
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• 제62권
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• pp.3-32
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• 2014

Article 77 sets forth the principle of prevention applied in several legal systems. Under this principle the party threatened by ooss as a consequence of a breach of contract by the other party is not permitted to await passively incurrence of the loss and then sue for damages. He is obliged to take adequate preventive measures to mitigate his loss. If the injured party abstains from taking such excessive measures he will not be considered to have failed to mitigate the loss under Article 77. The sanction provided in Article 77 against a party who fails to mitigate his loss only enables the other party to claim reduction in the damages. The reduction in damages under Article 77 is equal to the amount by which the loss should have been mitigated if the injured party had taken reasonable measures to avert or to lessen it. The aim of Article 77 is to encourage mitigation of the loss. The duty to mitigate the loss applies not only to a breach of contract in respect of an obligation whose performance is currently due. but also to an anticipatory breach of contract under Article 71. Article 85 contemplates that the buyer is in delay in fulfilling the latter obligation, or else that he fails to pay the price when payment is to be made concurrently with delivery of the goods by the seller. In both these situations of default, the seller who is either in possession of the goods or otherwise able to control their disposition must take measures, reasonable in the circumstances, to preserve them. The right of retention of the goods y the seller exists until he is reimbursed by the other party for the reasonable expenses incurred. Article 87 and Article 88 of the Convention grant different rights to the party obligated to take steps to preserve the goods; Article 87 allows him to deposit them in the warehouse of a third person, and Article 88 to sell them by whatever means appropriate. A difference exists between paragraph Article 88 (1) which grants the right to sell, and paragraph (2) which imposes the duty to take reasonable measures to sell the goods.

• 의료법학
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• 제15권1호
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• pp.263-302
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• 2014

The court handed down meaningful rulings related to medical sectors in 2013. This paper presents the ruling that the care workers could be the performance assistants of the care-giving service although the duties of care worker are not included in the liability stipulated in the medical contract signed with the hospital for reason of clear distinction of duties between care workers and nurses within the hospital in connection with the contract which was entered into between the hospital and patients. In relation to negligence and causal relationship, the court recognized medical negligence associated with the failure to detect the brain tumor due to the negligent interpretation of MRI findings while rejecting the causal relationship with consequential cerebral hemorrhage. The court also recognized negligence based on the observation on the grounds of inadequate medical records in a case involving the hypoxic brain damage caused during the cosmetic surgery. In terms of the scope of compensation for damages, this paper presents the ruling that the compensation should be estimated based on causal relationship only in case the breach of the 'obligation of explanation' is recognized, however rejecting the reparation for de factor property damages in the form of compensation, and the ruling that the lawsuit could be instituted in case that the damages exceeded the agreed scope despite the agreement that the hospital would not be held responsible for any aftereffects of surgery from the standpoint of lawsuit, along with the ruling that recognized the daily net income by reflecting the unique circumstances faced by individual students of Korean National Police University and artists of Western painting. Many rulings were handed down with respect to medical certificate, prescription, etc., in 2013. This paper introduced the ruling which mentioned the scope of medical certificate, the ruling that related to whether the diagnosis over the phone at the issuance of prescription could constitute the direct diagnosis of patient, along with the ruling that required the medical certificate to be generated in the name of doctor who diagnosed the patients, and the ruling which proclaimed that it would constitute the breach of Medical Act if the prescription was issued to the patients who were not diagnosed. Moreover, this paper also introduced the ruling that related to whether the National Health Insurance Service could make claim to the hospitals for the reimbursement of the health insurance money paid to pharmacies based on the prescription in the event that the hospitals provided prescription of drugs to outpatients in violation of the laws and regulations.

• 대한간호학회지
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• 제24권2호
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• pp.190-205
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• 1994

Respect for human life and respect for human dignity are two basic values to which organized nursing has urged its members to adhere in their service to mankind. Thus it is the nurses’ duty to provide health care in support of sustenance of life and to pay respect for the patient’s right to dignity. In practice, however, nurses may experience dilemmas between these duties much due to the de velopment of modern advanced techniques. These dilemmas have become more complex and difficult to resolve. Nurses are often faced with situations in which the terminally ill refuse professional care, posing serious conflicts between respect for human life and respect for human rights to self-determination. In such cases, resolution of the problem is not a simple matter, thus requires intensive study into the ethical questions related to the situation. The purpose of this study was to identify ethical problems that nurses experience in caring for terminally ill patients and explore the ways to the resolution of problems within the context of the situations. The methodology used for the study was a case study method which ‘New Casuistry’ proposed by Jonsen & Toulmin(1988) and the ‘Specified Principlism’ proposed by Degrazia(1992) as an alternative to old deductive and intuitive method. Cases were developed through semistructured indepth interviews according to the casutistry method. A total of seven nurses were interviewd who were caring for therminally ill patients. Four cases out of a total 14 cases were related to the topic. Through the case analysis it became evident that nurses appreciated other values more often than respect for the patient’s right to self-determination. These other values were convenience and efficiency in nursing practice in case 1, preservation of life above all other values in case 2, provision of nursing care to fulfill the nurse’s professional obligation at most in case 3, and respect for the family’s demand against the patient’s wish in case 4. This study showed that the most important ethical problems were conflict between respect for the patient’s right to self-determination and sustenance of life for the fulfillment of professional obligation. For this problem, benefit /burden analysis from the perspective of the patient and family for the promotion of patient’s wellbeing may be a way to resolve the conflict. Further, through these analysis it was shown that physicians’ and families’ opinions dominated in the decision - making and the opinions of nurses’ and patients’ tended not to be reflected. Thus the patient's right to his or her care was not readily respected. To solve this problem. nurses should make efforts to communicate reciprocally with their patients, family members and physicians in an effort to respect for their patient’s rights to life and diginity from the point of view and values of the patient. It is also important that nurses provide good basic nursing care up to the time of death regardless of decisions about providing or not aggressive treat-ment for chronically and terminally ill patients.

• 한국태양에너지학회 논문집
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• 제33권5호
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• pp.95-104
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• 2013

This study set out to devise an optimized system to take into account life cycle cost(LCC) and ton of carbon dioxide($TCO_2$) by applying the weighted coefficient method(WCM) to "public-purpose" facility buildings according to the mandatory 5% and 11% of new renewable energy in total construction costs and anticipated energy consumption, respectively, based on the changes of the public obligation system. (1) System installation capacity is applied within the same new renewable energy facility investment according to the mandatory 5% of new renewable energy in total construction costs. Both LCC and $TCO_2$ recorded in the descending order of geothermal, solar, and photovoltaic energy. The geothermal energy systems tended to exhibit an excellent performance with the increasing installation capacity percentage. (2) Optimal systems include the geothermal energy(100%) system in the category of single systems, the solar energy(12%)+geothermal energy(88%) system in the category of 2-combined systems, and the photovoltaic energy(12%)+solar energy(12%)+geothermal energy(76%) system and the photovoltaic energy(12%)+solar energy(25%)+geothermal energy(63%) system in the category of 3-combined systems. (3) LCC was the highest in the descending order of photovoltaic, geothermal and solar energy due to the influences of each energy source's correction coefficient according to the mandatory 11% of new renewable energy in anticipated energy consumption. The greater installation capacity percentage photovoltaic energy had, the more excellent tendency was observed. $TCO_2$ recorded in the descending order of geothermal, photovoltaic and solar energy with the decreasing installation capacity of photovoltaic energy. The greater installation capacity percentage a geothermal energy system had, the more excellent tendency it demonstrated. (4) Optimal systems include the geothermal energy(100%) system in the category of single systems, the photovoltaic energy(62%)+geothermal energy(38%) system in the category of 2-combined systems, and the photovoltaic energy(50%)+solar energy(12%)+geothermal energy(38%) system and the photovoltaic energy(12%)+solar energy(12%)+geothermal energy(76%) system in the category of 3-combined systems.

• 의료법학
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• 제19권2호
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• pp.173-207
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• 2018

일본은 고령화가 빠르게 진전되어 이미 총 인구 중 65세 이상 인구가 차지하는 비율이 20% 이상인 초고령사회에 해당한다. 일본의 판례는 요양시설에 입소한 고령자가 사상을 당한 다수의 사안에서 요양시설의 손해배상책임을 인정하였다. 구체적인 사안들은 ①전도 또는 전락, ②배회 또는 무단외출, ③질식, ④욕창 및 ⑤이용자 간 사고의 5가지 유형으로 나눌 수 있다. 판례는 대부분의 사안에서 채무불이행책임을 중심으로 검토하였으며, 과실 또는 안전배려의무 위반을 인정하였다. 과실 또는 의무위반은 시설의 관리자 또는 직원이 입소자를 주시하고 주의를 기울일 의무를 위반한 경우 뿐 아니라, 경우에 따라서는 인적·물적 체제를 정비하지 못한 것 자체만으로도 인정된다. 특히 일본에서는 신속한 권리 구제를 위하여 손해배상에 관한 특약 조항이 있는 경우 원고는 사고 및 손해의 발생을 주장·입증하면 충분하고, 피고로서는 불가항력에 의한 사고임을 주장·입증하지 않는 한 손해배상책임을 부담한다고 하여 입증책임의 전환을 인정한다. 그런데 요양시설의 손해배상책임은 시설에서 대상자의 입소를 허락하고 서비스이용계약을 체결하는 것을 주저할 만큼 과중한 것이어서는 안 될 것이다. 이러한 점에서 일본 재판소가 상대적으로 과실상계와 소인감액을 널리 인정한 논리는 충분히 음미할 필요성이 있다. 개호사고 소송에서 법원의 판단은 구체적인 사실관계에 근거한 사례판단이지만, 개호사업자와 이용자에 대한 관계를 살펴보는 것은 향후 우리나라에서 개호사고 소송의 심리·판단 뿐 아니라 요양자의 일탈 및 사고 등을 인식할 수 있는 체제를 구축하기 위한인적·물적 체제를 구축하는 기준을 제시하는 법안을 입안함에 있어서도 시사점을 제공할 수 있을 것이다.

• 해양정책연구
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• 제33권2호
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• pp.83-119
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• 2018

Under the Korean Marine Environment Management Act (hereunder, the KMEMA), the duty to arrange spill clean-up equipments, including spill clean-up vessels, required by the article 67 of the KMEMA is in essence the provision of public goods since it is a precautionary or preventive measure for the efficient performance of oil spill cleaning up. Also the obligation to control marine pollution and the duty to arrange of anti-pollution measures imposed on polluters is the obligation imposed by the public law in accordance with "the Polluter-Pays Principle". Therefore, the execution of such obligations shall be accompanied by the minimum legal and institutional arrangements. On the other hand, judging whether to form the roles of the public and private sectors in providing public goods is basically a matter of policy decision. However, even if the private sector is allowed to participate in the provision of public goods, it is imperative that a minimum requirement be provided to secure the public interest. Although major countries allows polluters to conclude a preliminary contract with a civil anti-pollution management company, these civilian institutions are in principle constituted by the owners of oil storage facilities. Additionally it is worth noting that it operates as a non-profit organization. In particular, if the practitioner performs pollution control for commercial purposes, their profitability may depend on the size of the pollution, the period spent on pollution control, the size of the equipment and manpower mobilized in the pollution control, and so on. Considering the above problems, caution should be taken to allow marine environmental management companies to be un-limitedly entrusted with the responsibility of arranging measures such as pollution control. In order to allow the marine environmental management contractor to be entrusted for the assignment of duty to protect the marine environment, the marine environment management business should be expanded so that the marine pollutant management capacity satisfies the statutory control capacity. For this purpose, it is necessary to manage and supervise the maintenance and improvement of the control capability of the marine environment management business. It is also necessary to discuss the introduction of the grading system for the control ability of the civil control companies alike in major countries.

• 의료법학
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• 제22권2호
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• pp.81-109
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• 2021

본 논문에서는 민법전에 의료계약에 관한 규정을 신설하기 위한 논의의 과정에서 의료관련 법률의 진료거부금지 규정과 의료계약에서 계약자유의 원칙의 관계를 검토하였다. 그 내용은 다음과 같다. 의료법의 진료거부금지 규정이 의료계약 체약의 자유를 제한하는 것은 아니다. 환자의 요청에 따른 진료개시와 진료개시 후 의학적 판단에 기초한 의료내용의 결정과 진료비에 대한 협의 하에 체결되는 의료계약의 성립은 구별된다. 반면 진료거부금지 규정으로 의료계약 해지의 자유는 제한된다. 의료계약은 전문가인 의료인과 자신의 생명·신체에 대한 처분을 전문가에게 맡긴 환자의 신뢰에 기초한 것이기 때문에 신뢰가 깨지면 계약을 해지할 수 있을 것이다. 그러나 계약의 해지로 환자의 생명·신체에 불이익을 주어서는 안 되기 때문에, 의료계약의 해지에는 일정한 제한을 두어야 할 것이다. 의료계약의 체약을 강제하고 정당한 사유가 있는 때에만 계약을 해지할 수 있도록 하는 것이 현재 의료법의 태도이다. 민법전의 의료계약에 관한 규정에서는 의료계약 해지의 자유를 인정하되, 일정한 경우에 계약의 해지를 제한하는 방향을 제시하였다. 계약의 해지를 위한 정당한 사유가 인정되고, 환자가 다른 의료인으로부터 진료를 받을 수 없는 등 불리한 시기가 아닌 경우에 계약의 해지를 인정한다. 의료법의 진료거부금지의무 위반에 대한 처벌규정을 삭제하고, 계약법의 문제로 옮겨와야 할 것이다. 진료를 거부한 행위 자체에 대해서는 국민건강보험법의 요양급여거절의무에 따른 행정제재로 규율하여야 할 것이다.

• International Journal of Computer Science & Network Security
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• 제22권6호
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• pp.374-381
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• 2022

The article identifies and theoretically substantiates the trends of national resilience in the context of establishing the security of the country and its civilizational subjectivity. The strategy of development of the pedagogical university in the conditions of European integration into the European educational and scientific space based on certain characterological features of the personality of the volunteer in the context of allocation of personal resilience is developed. The analysis of both external and internal challenges and threats to the civilization of the country needs to be understood in the context of economic, socio-political, legal, military-political, spiritual-cultural, educational-scientific and network-information resilience. The concepts of "national resilience" and "national security" are quite close - at first glance, even identical. However, a deeper understanding clarifies the differences: national security is a state of protection of the country identity and its very existence, the realization of its national interests. In turn, resilience is a fairly effective strategy and a fundamental guarantee of national security. At the same time, it is extremely important to understand that both national security as a state and national resilience as a strategy are only means of achieving and developing a strong and humanistic civilizational subjectivity of the country. After all, such subjectivity opens for citizens the opportunity for development, dignified self-realization and a proper life. The restructuring of the volunteer's motivational sphere is due to the dominance of such leading motives, which are focused mainly on maintaining and restoring health, which leads to distorted meaningful life goals: isolation, alienation, passivity, inertia, reduced activity, limited communication, etc. The characteristics of relatively stable human behavior include several primary and secondary properties. The primary (relevant) properties include patience, trust, hope, faith, confidence, determination, perseverance, and love; the secondary - punctuality, neatness, obedience, honesty, loyalty, justice, diligence, thrift, accuracy, conscientiousness, obligation, etc. The restructuring of the volunteer's motivational sphere is due to the dominance of such leading motives, which are focused mainly on maintaining and restoring health, which leads to distorted meaningful life goals: isolation, alienation, passivity, inertia, reduced activity, limited communication, etc. The characteristics of relatively stable human behavior include several primary and secondary properties. The primary (relevant) properties include patience, trust, hope, faith, confidence, determination, perseverance, and love; the secondary - punctuality, neatness, obedience, honesty, loyalty, justice, diligence, thrift, accuracy, conscientiousness, obligation, etc. The use of information and communication technologies in volunteering will contribute to the formation of resilience traits in the structure of personality formation. Directly to the personal traits of resilience should be included methodological competencies, which include methodological knowledge, skills and abilities (ability to define ultimate and intermediate goals, plan, conduct and analyze knowledge, establish and implement interdisciplinary links with disciplines of medical-psychological-pedagogical cycles, etc.). All these competencies form the professional resilience of the volunteer.

• 한국항만경제학회지
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• 제39권4호
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• pp.163-190
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• 2023

최근 기업의 투자 및 경영이념을 넘어, 환경, 사회, 지배구조(ESG)로 구체화되는 체계가 국가정책에도 중요한 영향을 미치고 있다. 이러한 ESG 체계는 모든 조직에게 필수 요건이 되고 있다. ESG 체계는 해운·항만 및 물류 분야도 기업 및 국가 차원에서 반드시 채택해야 할 책무가 되었다. ESG 체계의 도입이 필수요건이 될 때, ESG 체계가 해운 항만 및 물류 분야를 통해 궁극적으로 국가 경제에 미치는 긍정적인 영향이 확인되면, 더욱 높은 수준에서의 도입과 활용이 이루어질 것으로 예상된다. 본 연구에서는 유엔무역개발회의(UNCTAD), 세계은행(World Bank), 세계경제포럼(World Economic Forum) 등의 데이터를 이용하여 부분 최소제곱 구조방정식(PLS-SEM) 모형으로 ESG 체계가 해운·항만 및 물류 분야를 거쳐 국가의 경제성과에 미치는 영향을 분석하였다. 분석 결과, ESG 체계가 국가 경제에 직접적 영향을 미치지는 않지만, 해운·항만 및 물류분야를 통한 간접효과가 크게 나타났다. 따라서 해운·항만 및 물류 분야에서도 ESG 체계의 구축이 지출 및 의무만이 아닌 국가의 경제성과에 긍정적인 영향을 미치는 중요한 투자로 인식되어야 한다. 본 연구의 결과는 COVID-19로 인해 2019년 이후의 데이터가 없어 현재 시점과의 괴리가 있을 수 있다는 한계가 있다. 따라서 최신 데이터가 발표되면, 더 정확한 현재의 효과를 확인할 수 있을 것으로 기대된다.

• 무역상무연구
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• 제39권
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• pp.251-280
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• 2008

A party to the charter will not be able to rely upon the doctrine of frustration if an event which makes further performance impossible has been caused by his breach of the charter. Strictly speaking, this is not a situation of frustration at all but rather a case of discharge of the contract by breach. In the Sea Angel case, the defendant entered into a Lloyd's Standard Form of Salvage Agreement with owners of the casualty on the LOF 2000 form, incorporating the SCOPIC clause. The time charter was on the terms of the Shelltime 4 form. This case the trial of the action brought by the claimants owners of the vessel Sea Angel claiming outstanding hire from the defendant charterers. This Case was issued whether charterparty frustrated by refusal of port authorities to issue "No Demand Certificate" allowing port clearance pending payment of oil spillage clean-up costs. The court concluded that no attempt had yet been made to invoke the assistance of the Pakistani court to obtain the release of the vessel. There was not so radical or fundamental a change in the obligation assumed by defendant as to establish frustration. The purpose of this study aims to analyse frustration and time charter in the Sea Angel case.