Korean | English

pISSN : 1225-3405 / eISSN : 2713-5470

2020 KCI Impact Factor : 0.89
Home > Explore Content > All Issues > Article List

2011, Vol., No.52

  • 1.

    Law and power in modern society

    이종률 | 2011, (52) | pp.1~29 | number of Cited : 1
    Abstract
    As a form of governing order with a medium of power, Law, a product of human spirit, carries out the function of maintaining social order. Furthermore, it can be understood as a means which prevents degenerating into barbarous and violent governing order. But it should not be overlooked that far from preventing degenerating, power could disguise violence with the medium of power in the human history. This is because such violence hidden behind law degenerates law into a maid of power or a tool representing profit for certain power subject. When with a premise of such a relation mechanism between law and power, one approaches near thoughts of ‘governing by law’ or ‘law-governed country’ which reside in nearly prevailing consciousness in modern society, it is thought with doubt on these thoughts that prevailing recognition about law in a society would be false consciousness. Of course, theoretically, today's human existence is all entitled to position of a master in law ideology or law form. But political, economic, and cultural power never allow such a position to majority of human beings in the form of legality. That is, absolute majority of human groups living in modern countries are certainly entitled to subjective position in the level of the positive law but nevertheless, it is thought that they are prisoners of false consciousness - they wrongly recognize the reality compared to life like a slave as human's real life as it was. We sought the cause from social distribution problem of power which can be the mother's womb forming and operating law.
  • 2.

  • 3.

    Present and Perspective of Human Rights Education in the Law School - Forced on the UN World Programme for Human Rights Education -

    CHAE Hyung Bok | 2011, (52) | pp.31~65 | number of Cited : 7
    Abstract
    Human rights education is defined as “training and public information essential for the promotion and achievement of stable and harmonious relations among communities and for fostering mutual understanding, tolerance and peace”(Para. 78 in Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights). In this point of view, human rights education can be attained through studying, training and public information. For human rights education, it is important to say that the tripartite subjects, that is, the cooperation among the educational institutions, teachers and states, have a close cooperation. If these above aspects apply to human rights education in the Law School, we appreciate that the Law School, Professors and State, especially the National Human Rights Commission(NHRC) have closely to cooperate each other. And then, how do we improve certain limits and problems of the Law School and Bar Exam system in human rights education?First, the Law School should devote to the essence of education as an educational institution. It is a basic object of ‘the Law School Law’ which intends to ‘an excellent jurist cultivate’. Second, it must be reconsider the role of the professors in charge of the ‘public interest & human rights law’. In present, even the Law School, which is adopting in the specialized sector as the ‘public interest & human rights law’, does not secure an sufficient number of the professors in charge of this programme. Secure the professors is urgently needed in order to revitalize the education of ‘public interest & human rights law’. Third, it is so important to rethink the role of the NHRC in human rights education. The NHRC have to try to support human rights education in the Law School in the title of national implementation of the UN World Programme for Hman Rights Education. Lastly, the tripartite subjects(Law School-Professor-NHRC) have to cooperate in human rights education. They are subjected to educate and train the students of Law School as future jurist that they have a correct concept and knowledge about the human rights.
  • 4.

    Challenges and prospects of lawyering education in Law School in Korea

    Choi Sung Soo | 2011, (52) | pp.67~105 | number of Cited : 1
    Abstract
    In the Law School system, the most important part is the curriculum. Law School system emphasizes a practical training. Legal education of Law School in the United States currently emphasis on the clinical method, so is changing its focus from case method to clinic method. If we want a practical training in our law school system to be substantial, clinical method should be adopted widely. Lawyering is part of that. Through this course, we can learn the various lawyering skills. Firstly we need to recognize the importance of lawyering education, and to increase interest in this field. For lawyering education to be profitable, we need to organize well the curriculum. To get an actual case in Law school, we need to install the legal background of in-house clinic. Also we need to establish a Model Student Practice Rule that let students to treat the actual case dealt with the real progress. Prepared teachers are also needed and a budget support for training and clinical legal education should be followed. Lawyering is not only for course getting technical mastery. With lawyering technology, so-called value-oriented lawyering is also pursed in this course, at the result of that, we can discharge a lawyer who are theoretically and practically prepared to the field. Law school-era lawyer orients a competitive lawyer armed with theoretical education, practical training, ethics training and specialized education. To its starting point, a clinic method including lawyering and legal clinics is situated.
  • 5.

    A Critical Study on Social Security Laws or Regulations for Marriage Immigrants

    김영선 | 2011, (52) | pp.107~141 | number of Cited : 3
    Abstract
    The purpose of this study is to speculate laws and regulations for marriage immigrants in terms of social security, and to study these have some effective limits in process of support. In my study, marriage immigrant means a person who have married to Korean spouse by law, but who doesn't obtained Korean nationality. Under the law, they are treated like a foreigner as ever. Therefore, they cannot help excluding in process of support. Under informations of each social security laws or regulations, I asserted four alternatives as follows to guarantee their right to live substantially. On results, First of all, similar foreigner related regulations in contents should be unified. Secondly, an interrelationship among relations for social security must to be renegotiate. Thirdly, contents of each social security laws or regulations must to be renegotiate practically. Fourthly, foreigners related regulations must to feed into another laws. To make they settlement and adjustment in Korean society, foreigners related regulations must to be apply by force for relations.
  • 6.

    A Study on the Dual Executive System - A Critical Look into the Constitutional Revision for the Dual Executive System -

    Manhee Jeong | 2011, (52) | pp.143~187 | number of Cited : 15
    Abstract
    The discussion about constitutional amendments has recently intensified in the country for the past few years. The National Assembly under the government of President Lee Myung-Bak led the discussion on constitutional amendment after President Roh Moo-Hyun proposed the so-called one point amendment, which is an amendment on the presidential terms and election timings, on January 2007. In 2008, the Advisory Commission on Constitutional Revision under the immediate control of the Speaker of the National Assembly was organized, and they published a research report on August 2009. This research report proposed the dual executive system of the French government as the first tentative plan. A part of the political authority approved the dual executive as a government system of decentralized power. There were also discussions among academics about constitutional amendment variously proposing constitutional revisions including the dual executive system, the U. S. presidential system, and the parliamentary cabinet system. From the writer's viewpoint that the system of government should be gradually and partially revised, the purpose of this paper is to develop an argument against the proposal to introduce the dual executive system of France, which means to select a new system of government. This paper looks into the rationales of a dual executive system and the government system of the Constitution of Weimar Republic, which provides a background in establishing the dual executive system. This study further analyzes the principles and the practical applications of the government system of France’s Fifth Republic. With a background on their experience with failure in the classical parliamentary cabinet system during the period of the Constitutions of Third and Fourth Republic in France, the dual executive system of the Constitution of France’s Fifth Republic has a President who is directly elected by the people and can exercise substantial power with democratic legitimacy. The Prime Minister appointed by the President should be abdicated if he/she does not gain the confidence of the Parliament through a vote of censure. In the dual executive government system of France, which combines the parliamentary cabinet system and the presidential system, the substantial powers in the Constitution are distributed between the President and the Prime Minister because of the material duality between the administrative branches. It causes a serious problem, which is the conflict between the President and the Prime Minister, because the distributional standards of powers are vague. Moreover, if the traditional trend of the multiparty system in France occasionally gives rise to distinguish the party in power from the majority party of the Parliament, the Presidential Power to appoint the Prime Minister would be restricted, therefore the President has no alternative but to appoint the leader of a nongovernment party and the abnormal phenomenon called ‘cohabitation’ takes place. In the light of these problems, particularly the conflict between the President and the Prime Minister and the occurrence of ‘cohabitation’ caused by the dual separation of administrative powers, it could be expected that more serious problems would emerge if the dual executive is introduced in the present state of Korea with the backwardness of its Parliamentary Democracy, politics, culture, and the level of public awareness. There are a few skeptical viewpoints in introducing the dual executive system as a plan to cope with the evils of centralization of power and the successful stabilization of the government system because the parliamentary cabinet system was rarely used in the constitutional government of Korea. Also, it must also be taken in to account that adverse effects might arise such as new internal conflicts among the executives and unrest and paralysis on the conduct of state affairs. In conclusion, there is a necessity for a careful analysis in enforcing the dual executive system versus abolishing the presidential system in amending the current government structure. The suitable government system is being discussed with the purpose of reforming the present system because the dual executive system may have various implications to various cultural conditions and historical backgrounds. Hence, it is necessary to more completely scrutinize and study the theory and practice of the dual executive system before proposing to implement it.
  • 7.

    A Comparative Study on the Limitations of Corporal Punishment

    Jong Geun Lee | 2011, (52) | pp.189~218 | number of Cited : 8
    Abstract
    These days, in Korea, there has been a chain of acrimonious dispute over corporal punishment in school educational system. The Korean government claims that corporal punishment can be inflicted on the boatrocker in the class to protect the others' rights for learning, but others, including some provincial office of educations oppose desperately. Under this circumstances, we need to analyse the world's legislation trends to take right direction of regulations of physical punishment from a comparative legal point of view. In most countries, light corporal punishment is permitted as a way of disciplining and correcting a child. It is less acceptable as a means of discipline in schools than in the home. As to the educational system, many states have shown a readiness to ban corporal punishment, although they have not taken the same attitude towards parental corporal punishment. This unwillingness to accept physical punishment in schools breaches the traditional delegation of authority from parents to teachers, that is, the common law doctrine of in loco parentis. If the argument in favor of mild corporal punishment as an effective way of educating in the family sphere is true, it is also open to question why mild corporal punishment should be prohibited in the educational system. But this distinction is made in many countries, and there may be good reasons for it. This paper presents a comparative view of how the world's legal systems treat corporal punishment meted by both parents and teachers, discussing the differences between parental corporal punishment and corporal punishment done by a teacher. It also deals with arguments both in favor of and against corporal punishment from the perspective of human rights and dignity versus the practical perspective of the need to educate and correct the child. In conclusion, the perception of this paper holds that corporal punishment should be permitted for teachers in the limited scope in a particular manner under the doctrine of in loco parentis as well as for parents.
  • 8.

    Die Normierung und der Trend des Nichtraucherschutzgesetzes in Deutschland

    이상해 | 2011, (52) | pp.219~253 | number of Cited : 6
    Abstract
    Mit seiner Entscheidung vom 30. Juli hat das Bundesvefassungsgericht die Landesnichtraucherschutzgesetze von Baden-Württemberg und Berlin bezüglich der Vogaben für die Gastronomie für teilweise verfassungswidrig erklärt. Von daher wurde die Neuregelung des Nichtraucherschutzes in Gaststätten in den Länderparlamenten bis Ende 2009 umgesetzt. Dabei haben nahezu sämtliche Landesregierung ein relatives Raucherverbot in Gaststätten verabschiedet. Der Nichtraucherschutz in baverischen Gaststätten war erst mit dem Gesundheitsschuzgesetz zum 1.1.2008 eingeführt worden. Trotzdem hat er bereits wechselvolle Geschichte hinter sich. Mit Änderungen zum 1.8.2009 wurde der konsequente Nichtraucherschutz durch Einräumung von Ausnahmen dann aber deutlich beschränkt. Das hiergegen gerichtete Volksbegehren war erfolgreich und der Volksentscheid vom 4.7.2010 führte zu einer Rückkehr zu den strengen Schutzbestimmungen der Anfangeszeit. Nun gilt die neue Rechtslage seit 1.8.2010.
  • 9.

    Gefahenzurechung im Polizeirecht

    Son, Jae-Young | 2011, (52) | pp.255~284 | number of Cited : 4
    Abstract
    Dieser Beitrag befasst sich mit der Gefahrenzurechung im Polizeirecht. Damit eine Person als Störer im Sinne des Polizeirechts und als für einen drohenden Schaden verantwortlich angesehen werden kann, muss sein Verhalten für diesen ursächlich sein. Das setzt u.a. voraus, dass sein Verhalten eine „conditio sine qua non“ für den drohenden bzw. schon eingetretenen Schaden darstellt, also im naturwissenschaftlichen Sinn kausal ist. Selbst wenn jedoch ein Verhalten einer Person vorliegt, das im naturwissenschaftlichen Sinn ursächlich für eine Gefahr (einschließlich der Anscheinsgefahr) ist, ist diese nicht notwendigerweise Störer. Es kommt vielmehr auch hier entscheidend darauf an, ob sie auf der Basis der für die polizeirechtliche Verantwortlichkeit maßgeblichen Zurechnungskriterien als Störer anzusehen ist. Das ist auf der Grundlage der Unmittelbarkeitslehre zu beantworten. Nach der Unmittelbarkeitslehre ist darauf abzustellen, ob eine Verhalten die polizeirechtliche Gefahrenschwelle überscheitet und damit die unmittelbare Ursache für den Eintritt der Gefahr setzt. Bei mehreren zusammenwirkenden Faktoren ist dies in der Regel das zeitlich letzte Ursache. Aber das muss nicht so sein. Nach der Unmittelbarkeitslehre erfolgt bei der Beurteilung der Kausalität im Polizeirecht eine Auswahl unter den für den Eintritt der Gefahr wesentlichen Ursachen. Dies erfordert eine Wertung der Bedingungen. Bei der Wertung der Bedingungen kommt der Rechtsordnung eine maßgebliche Bedeutung zu. Es fehlt immer dann an einer unmittelbaren Verursachung, wenn ein Verhalten in Ausübung eines Rechts erfolgt oder es sich als ein von der Rechtsordnung toleriertes Risko darstellt. Derjenige, der sich rechtmäßig verhält und von seinen Freiheiten, insbesondere Grundrechten, Gebrauch macht, ist also nicht Störer im Sinne des Polizeirechts.
  • 10.

    Introduction: Climate Change and Human Rights - The Situation of Discussions to Date and Challenges Ahead -

    박태현 | 2011, (52) | pp.285~315 | number of Cited : 9
    Abstract
    Climate change has been addressed just as one of international environment issues to date in international community. While global climate change will have tremendous impacts on all people, those who feel the most severe impacts may be in the worst position to address them and may have done the least to crate them. This disparity raises challenges basic human rights. January 2009, the Office of the U.N. High Commissioner for Human Rights became the first international human rights body to examine the relationship between climate change and human rights. The OHCHR report reaches several important conclusions. (1)climate change threatens the enjoyment of a broad array of human rights. (2)climate change does not, however, necessarily violate human rights. (3)human rights law nevertheless places duties, including an obligation of international cooperation, on states concerning climate change It should be given primacy to analyze and explicate the relationship between climate change and human rights within the framework of the body of human rights law. Nevertheless, it can't be identified so far that there exists a study related to the implications of climate change in teams of international human rights law in korea. Accordingly, the purpose of this article is to generally examine the relationship between climate change and human rights with a view to triggering an advanced study thereon. This Article is divided into four sections. First, it offers a brief overview of the situation of discussions generally before the OHCHR report was published(section Ⅱ). Second, it analyzes the nature and scope of the relationship between climate change human rights and describe human rights obligations to be placed on States by human rights laws applicable(section Ⅲ). Third, it takes a general view of the responses from States to the OHCHR report(section Ⅳ). Fourth, it examines the debate over whether or not human rights-based approach to climate change is valid or feasible and suggests what is left to be done ahead(section Ⅴ).
  • 11.

    위법성조각사유의 전제사실에 관한 착오 - 독자적 착오 유형 규율을 위한 한국 형법의 개선방향 -

    Chul Ha, Kang | 2011, (52) | pp.317~348 | number of Cited : 8
    Abstract
    위법성조각사유의 전제사실에 관한 착오란 위법성조각사유의 객관적 전제사실이 실제로 존재하지 아니함에도 불구하고 이를 존재한다고 오인하여 위법성조각사유에 해당하는 행위로 나아간 경우를 말하며, 정당화사정의 착오 또는 허용구성요건의 착오라고도 한다. 즉 위법성조각사유의 전제사실에 관한 착오는 ‘법 규정 자체’에는 착오가 없고, 다만 위법성조각사유의 전제가 되는 ‘사실’에 대해서 착오가 있는 경우를 의미하게 된다. 다만, 이러한 착오는 행위자의 의사가 적법하게 실현될 사태의 실현에 향해져 있다는 점에서 그리고 ‘의미의 인식’에 관한 문제가 아니라 ‘사실의 인식’에 관한 문제라는 점에서 행위자의 주관적 의사의 측면에서 보면 구조적으로 구성요건적 착오와 동일하나 그 착오의 대상이 ‘객관적 구성요건표지로서의 사실’이 아니라 ‘위법성조각사유의 요건인 사실’이라는 점에서 구성요건적 착오와 구별된다. 나아가 위법성조각사유의 전제사실에 관한 착오는 구성요건적 고의는 있고 구성요건의 위법경고기능이 작용함에도 불구하고 행위자에게 위법성의 인식이 없다는 점에서 위법성의 착오와 유사하지만 위법성조각사유의 “객관적 전제사실을 오인하여” 다시 허용되는 행위를 한다고 믿었던 ‘이중의 착오’가 있다는 점에서 위법성의 착오와 구별된다. 그런데, 우리 형법은 오스트리아 형법 제8조와 달리 위법성조각사유의 전제사실에 관한 착오에 관하여 명문의 규정을 두고 있지 아니하므로 그 해결은 학설과 판례에 맡겨져 있다고 볼 수 있고, 이런 점에서 해석에 따라 위 착오를 구성요건적 착오로 파악할 경우에는 형법 제13조를 적용하여 고의를 조각(착오에 과실이 있는 경우에는 과실범으로 처리) 시킬 수 있을 것이나 금지착오로 파악할 경우에는 형법 제16조를 적용하여 ‘그 오인에 정당한 이유가 있는 때’에 책임만이 조각되고 원칙적으로 고의범으로 처벌할 수 있을 것이다. 따라서, 형법상 인정되고 있는 구성요건적 착오와 위법성의 착오 중 이러한 착오를 어떻게 취급할 것인지 여부가 문제되고, 착오자에 대한 고의범 또는 과실범 처벌문제가 연결된다는 점에서 그 법적 해석방법 및 형법의 개선방향을 제시해 보고자 한다.
  • 12.

    Begründung und Einschränkungsprinzip der Notwehr

    Nak-Hyon Seong | 2011, (52) | pp.349~381 | number of Cited : 6
    Abstract
    Nach der herrschenden Lehre wird die Notwehr dualistisch begründet. Der Handelnde in der Notwehrsituation verteidige das angegriffene Rechtsgutsobjekt und dies diene zugleich zur Verteidigung der Rechtsordnung. Außerhalb der herrschenden Meinung werden jedoch die Konzeptionen über rein individualistische oder rein überindividualistische Notwehrbegründung vertreten. Obwohl die beiden monistischen Konzeptionen einzelne Vorteile haben, aber wegen ihrer Schwächen bleiben die herrschenden Lehre und Rechtsprechung bei der dualistischen Auffassung. Die Notwehr läßt sich zunächst individualrechtlich verstehen als das jedermann von Natur aus zustehende Recht der Selbstbehauptung durch Verteidigung der eigenen Person gegen den ungerechtfertigten Angriff eines anderen. Aber der Gedanke der Rechtsbewährung läßt sich nicht vom Grundprinzip der Notwehr beseitigen. Nur mit dieser dualistischen Auffassung kann man die Notwehr vom rechtfertigenen Notstand unterscheiden, denn dem Rechtsgüterschutz allein dient bereits der Notstand. Ohne Bezugnahme auf das Prinzip der Rechtsbewährung können die Probleme über die Befreiung von der Ausweich- und Güterabwägungspflicht sowie die Probleme über Nothilfe schwer erklärt werden. Aus dem überindividuellen Rechtsbewährungsprinzip werden sozialethische Einschränkungen der Verteidigungsbefugnisse begründet. Nämlich bei der Angriffe von Schuldlosen, geringfügiger Angriffe, Angriffe innerhalb enger Lebensgemeinschaften sowie provozierten Angriffe wird das Allgemeininteresse an der Wahrung der Rechtsordnung eingeschränkt. Je nach dem Grad des Allgemeininteresse an der Wahrung der Rechtsordnung wird das Notwehrbefugnis verhältnismässig eingeschränkt.
  • 13.

    The Practical Essentials of Individual Provisions and the Logical Essentials of 'Tatbestand' in Criminal Law

    송희식 | 2011, (52) | pp.383~416 | number of Cited : 2
    Abstract
    A crime is defined as an illegal and culpable act conforming to ‘Tatbestand(elements of an offence)’ in the established criminal Jurisprudence. All crimes are prescribed one by one in the individual provision of criminal law and others. If it was not prescribed by a criminal law, it is not a crime. There is no exception; no crime without law. This is the principle of legality. So definition of a crime belongs to the typical extensional definition. And justification defense and excuse defense are also extensional definition, because they are also prescribed as patterns of act. They are not attributes of entity. But in the common view, ‘Tatbestand’ is regarded as an attribute of crime such as illegality and culpability. This is due to the category mistake and due to the fallacy of confusing intensional definition and extensional definition. Now, if we look at the real state of affairs, we can find a system of three extensional definitions: ‘Tatbestand’, “justification”, “excuse”. The relation of them is a confrontational system, not a staged system. Then what are illegality and culpability? They are of elementary concepts of a crime. For example, homicide has two conceptual dimensions, one is a domain dimension of homicide concept; “the killing of a human being by a human being”. The other is a range dimension of homicide concept, such as “social harmfulness, blameworthiness of that wrongful results, conduct, attendant circumstances, etc.” The domain and range of concepts have functional correspondence. In Frege's analysis, y = f(x), values of x constitutes domain, values of y constitute range. The illegality and culpability of homicide are the range of homicide, which corresponds functionally to each element in the domain of homicide. The domain and range concepts are relevant to the elements of “justification” and “excuse”. Thus we are proposing that the theoretical system of crime has three confrontational categories and two functional dimensions: ‘Tatbestand’, “justification”, “excuse”, and domain and range. Ranges(the illegality and culpability) and domains(conceptual scope of offence) cut across the ‘Tatbestand’, “justification”, “excuse”. This system of proposition may view studies in criminal law in a new sight.
  • 14.

    Anzeigeobliegenheit beim Abschluss eines Versicherungsvertrages und Vorsatz des Versichergungsbetruges

    HOH ILTAE | 2011, (52) | pp.417~445 | number of Cited : 12
    Abstract
    Wenn der Versicherungsnehmer einen Versicherungsvertrag abgeschlossen hat, ohne die versicherungserheblichen Tatsachen kundzutun, wird auf der Seite des Versicherers Kündigung des Versicherungsvertrages gem. §651 kHGB gerechtfertigt. So wird der Versicherungsnehmer rechtlich gezwungen, versicherungserhebliche Tatsachen anzuzeigen, aber trotzdem ist dies nie eine durch den Versicherungsvertrag begründete Verpflichtung im rechtswissenschaftlichen Sinne, sondern eine Obliegenheit. Somit kann der Versicherte beim Vorliegen einer Obliegenheitsverletzung des Versicherungsnehmers nicht immer Ersatz seines Schadens nach §750 kBGB in Anspruch nehmen, da dieser rechtliche Anspruch das Vorliegen ihrer eigenen Tatbestandsmerkmale verlangt. Unter besonderer Berücksichtigung des Charakters des Strafgesetzes als ultima ratio, ist die Nichterfüllung der Anzeigeobliegenheit des Versicherungsnehmers, die sogar zivilrechtlich unsanktioniert bleibt, zwar in dem Sinne, dass sie nicht einmal eine Schadensersatzpflicht des Versicherungsnehmers begründet. Der Kern des Unrechtsbewertung der Betrugsverhalten liegt darin, dass bei einem strafrechtlichen Betrugsdelikt der Täter mit einem betrügerischen Absicht jemanden anders dahingehend täuscht, als ein Irrtum bei dem Opfer entsteht, worunter es über sein Vermögen verfügt, das gerade der Vermögensvorteil des Täters oder eines Dritten wird. So muss der Täter mehr als blosse Lügen gemacht haben: Er muss -in einem von wissenschaftlicher Präziseheit in der juristischen Terminologie abgesehenen, alltäglichen Sinne- „habgierig“ gehandelt haben. Somit wird bei einem Betrugsdelikt im strafrechtlichen Sinne ein betrügerischer Absicht erforderlich, zwar ausnahmslos. Da die jeden oben erläuterten Elementen objektive Tatbestandsmerkmale eines Betrugsdeliktes sind, so richtet sich der Vorsatz des Täters nach solchen objektiven Elementen. Zur Anerkennung des Betrugsvorsatzes reicht dolus eventualis aus, muss der Täter, also, das Ergebnis billigend in Kauf genommen haben, zwar mit einer einigermaßen hocher Wahrscheinlichkeit, dass das Opfer eine sich benachteiligende Vermögensverfügung vornehmen könnte. In dem besprochenen Fall hat der Beklagte geglaubt, dass der Versicherte von der früheren Krebserkrankung vollkommen genesen wäre. Seine Überzeugung kann m. E. dadurch gerechtfertigt, dass der Versicherte schon seit der letzten ärztlichen Untersuchung als gesund beurteilt gewesen ist, die vor achtundfünfzig Monaten durchgeführt wurde. Darüber hinaus verdient m. E. die Vorstellung des Beklagten die Zustimmung der Allgemeinheit, da der Versicherte eine nach —wiederum m. E.— rationaler Beurteilung für eine genug lange Zeit gesund geblieben ist. Somit müßte m. E. sicher unter Frage gestellt werden, ob wirklich wahrscheinlich ist, dass der Beklagte beim Vertragsschluss die mögliche Todesfolge des Versicherten vorgesehen hatte. Obwohl der Beklagte seiner Anzeigeobliegenheit nicht nachgekommen sei, ist nicht nur seinerseits das Vorliegen eines Irrtums anzuerkennen, sondern auch, das Verhalten scheint, immer im Rahmen der sozialen Duldbarkeit zu bleiben. Auch die Tatsache, dass der Versicherer nach einer sorgfältigen, fünf Monate lang angehaltene Prüfung Versicherungssumme ausgezahlt hat, sagt dafür, dass in dem Verhalten des Beklagten ein zivilrechtliches, Schadensersatzpflicht begündendes Delikt nicht vorliegt. Nicht zu tragen ist, ein Verhalten, welches nicht als eine unerlaubte Handlung im zivilrechtlichen Sinne angesehen wird und somit niemals eine —wiederum zivilrechtliche— Sanktion rechtfertigt, unter Anwendung der Vorschriften über Betrug strafrechtlich zu bestrafen. Dies ist m. E. ein schwerer Verstoß gegen das ultima-ratio-Prinzip des strafrechtlichen Sanktionen. Als Ergebnis, könnte zwar das Verhalten des Beklagten eine Verletzung seiner Anzeigeobliegenheit darstellen, kann jedoch nicht unter Betrug im strafrechtlichen Sinne fallen, da sich hier eine Täuschung mit betrügerischem Absicht nicht finden läßt.
  • 15.

    A study on the practical use of visual recording in Criminal Procedure

    천진호 | 2011, (52) | pp.447~473 | number of Cited : 4
    Abstract PDF
    The current Criminal Procedure Code the recording system which records the investigation process of the criminal must interpret protocol of examination that will not be able to substitute. In compliance with the Criminal Procedure Code illegal to video tape the statement features and a contents of the criminal, admissibility of evidence will not be able to recognize because is an evidence which is collected. But the legal practical affairs and to between scholars was visible a different view about visual recording evidence value. but Amends several times Criminal Procedure Code and under using visual recording, but the use is not becoming actually well. There is cause which is various with the reason where visual recording system which is introduced with difficult is not applied actively. Avoiding the opposition of the opinion which what is presented from discussion process and the shape which is negotiate and with the features which is strange drawing to do rather changing probably is not, there is a necessity which will look back. In order to apply with visual recording evidence amends the Criminal Procedure Code to be, the meaning which the visual recording system from criminal action and investigation about the opinion which is discussed. To understand the meaning which the visual recording system and to investigate the visual recording will be able to apply with evidence in order, must amend the Criminal Procedure Code.
  • 16.

    A study on the Opposing Power limitations of Unregistered Tenant

    Kim Man Woong | 2011, (52) | pp.475~510 | number of Cited : 0
    Abstract
    Although unregistered Jeonse Tenant can be solved through a law for protection of house and commercial building lease, the law can't solve the problem that is raised on fundamental difference from a real right and auction. There leaves something to be desired and the protection for tenant that is unregistered and is not applied by this law needs to be amended. Meanwhile, when the tenant who is for application object on a law for protection of house and commercial building lease serves as the right of Jeonse, how to deal with legal handling in auction is treated as the opposing power and the right of preference of repayment. Two are treated differently as well. Because we don't treat the acquirement of successful bidder in auction and allocation status of a third party including interests equally, we must do differently. In case of unregistered Jeonse that is not a protection object, the registration law of the right of lease needs to be extended independently, and the legislative solution that administers the right of preference of repayment and the auction right is required. The question of legal discrimination between residential building tenant and the right of Jeonse must be solved through standard of cancellation. Before cancellation, it's called the opposing power. After cancellation, the right of preference of repayment. The lease which is unrelated with allotment must be acknowledged along with leasehold rights. The legislative solution to choose the right of Jeonse or the lease status on special law is desired when it is to do with allotment. There will be concerned about the role of the right of Jeonse. That's because the matter is not the special law expansion in civil code but the Korean legislation cases which must have been made as special law. We suggest to derive legislative solutions for activating Jeonse rights based on Civil Code on the right of Jeonse was enacted in Korea. The unification of the two standards is required to be discussed. We expect active discussion on detailed legislation, housing, Commercial Building, Lease Protection Act and Civil Code totally.
  • 17.

    Verbesserungsvorschlag ueber die Folgen der Anzeigen und Genehmigung bei Uebertragung der Foderung

    Cheol-Hong Yoon | 2011, (52) | pp.511~536 | number of Cited : 3
    Abstract
    1. In der Untersuchung werden §450KBGB(Voraussetzungen fuer die Geltendmachung) und §451 KBGB (Folgen der Anzeige und Genehmigung) zuerst analysiert und dann eine Verbesserungsentwurf aus dem gesetzgebenden Gesichtsupunkt vorgeschlaegt. 2. §451 Abs. 1 KBGB reglt wie folgt: Hat der Schuldner auf Verlangen die Abtretung der Foderung nach §450 KBGB ohne Vorbehalt genehmigt, so kann er dem neuen Glauebiger die Einwendungen nicht entgegensetzen, die bis zur Zeit der Abtretung gegen den bisherigen Glauebiger begruendet waren. Der Schuldner kann das fuer die Erfuellung der Schuld dem bisherigen Glauebiger Geleistete zurueckfordern oder sich dem neuen Glauebiger gegenueber darauf berufen, dass die Schuld nicht bestand. Die Einwendung im §451 Abs. 1 KBGB hat grosse Differenz zwischen der allgemeinen Einwendung. Deswegen sind die beiden Einwendungen nicht zu harmonisieren. Aus diesem Grund hat Untersucher ueber die Aufrechnungseinwendung den neuen Absatz (§451 Abs. 3 KBGB) vorgeschlagen. Bekommt der Schuldner die Abtretungsanzeige, kann er die Aufrechnung gegenueber die Forderung dem neuen Glaeubiger entgegensetzen, wenn sie vor der Faelligkeit der abgetretenen Forderung faellig geworden ist oder mit der abgetretener Forderung in Erfuellung Zug um Zug steht, obwohl sie noch nicht faellig ist.
  • 18.

    Legal relationship between Obligee Right of Revocation and Obligee of the Beneficiary in the Obligee's Right of Revocation

    choo sin young | 2011, (52) | pp.537~567 | number of Cited : 11
    Abstract
    The revocation and bringing the matter to its original status according to the provisions of the preceding Article shall take effect for the benefit of all Obligee's in the Civil Law Code 407. This regulation declared the principle of equality among Obligee's. A common view and judical precedent are opted relative effect theory in the Obligee's Right of Revocation. For that reason, Because Obligee's Right of Revocation is legally effective to the beneficiary. But, Obligee's Right of Revocation should legally effective in a third party. This study precedent was adopted relative effect theory. I doubts about common views and judical precedents by the intent of Obligee's Right of Revocation. Recently, our nation scholars insisted some theory in this case problem. First, Theory of reflexive effect that is extends effect of judgment to Obligee of the Beneficiary. Therefore, Obligee's Right of Revocation have take precedence over obligee's of provisional attachment. But this theory is groundless in by legally. Second, Theory of application of the civil execution law that is admits the order of priority to whoever comes first. This theory up-to-date for conquest the superiority and inferiority among Obligee's Right of Revocation and Obligee of the Beneficiary. But this theory be criticized by scholars, because that is doesn’t know procedure law from a substantial law. Third, Theory of emphasis of the relative effect that is sympathize with judical precedent. This theory protect a third party in good faith and shouldn't be a third party in ill-intentioned. But this theory be criticized by the purpose of legislation of the Civil Law Code 406. I think this traditional theory and judical precedents are need to be tailored to fit into the realities.
  • 19.

    Obligation infringement by third person in the Japanese Civil Law

    HyeonSon, Kim | 2011, (52) | pp.569~603 | number of Cited : 5
    Abstract
    In the case of the obligation is infringed by third person the issue whether the creditor is not able to seek liability against third person is aroused. In regarding this question, early Japanese scholars are subject to the English law who developed academic dogma before the era of the Civil Code enactment affirmed torts which the obligation is infringed by third person. However, shortly under the impact of the German law, the relative point of view that figure out the obligation is relative rights became a majority view. In 1914, ‘non-aggression theory on the right’ were appeared and the affirmative point of view becomes majority view. With the appearance of the ‘illegality theory’ and ‘correlation theory’, those are put down new roots in the academic society as a conventional wisdom and no negative point of view was found. Subsequently, under the influence of German law limited affirmative point of view formed the mainstream for a fairly long time with the critics of the traditional view. Nevertheless, since the conventional majority view was too ideological in the features of the obligation infringement it failed to reflect various legal disputes in the real world. In addition, wish we had the limited affirmative point of view made a conclusion without the sufficient examination about the relativity of obligation, respect of debtor's free will, equality of creditor, principles of free competition, etc. In order to overcome those points at issue, since in the 1980 the inclination that the question shall be answered only with the characteristics of obligation was gradually disappeared. Currently, rather new category that can be expanded the possibility of establishment the obligation infringement are now argued. This article deals with the process of development of obligation infringement by third person, new categorization of obligation infringement by third person, trial of codification of obligation infringement by third person. Through the such examination, it can be easily guess the suggestion and impact from the Japanese legal aspect.
  • 20.

    Defects of Independent Contractors' Liability

    Gwak,Minhui | 2011, (52) | pp.605~631 | number of Cited : 2
    Abstract
    For the nature of the liability being not defiend, many conflicts with a contractors liability on a defective work may arise in construction Works. Specially, the problem of the liability by reason of breach of contract or warranty is concurrent with the general non-performance liability or related with the problem of defect of sales. But this problem is based on the concept of ‘Defects’. This study concentrates upon the concept of defects, especially of independent contractor's works. When tries to observe comparison method-the study of Japan and French-about this problem, the breach of contract is included in the concept of Defects of independent contractor's works. Following the above observations, this study tries to make clear the possible standards of defective works. Historically traced, the understanding of the concepts has changed so much during a very long period, the breach of agreements Current defect liabilities have their roots in another Roman institution established and developed by official market regulators in the area of sale law. This study makes conclusion like this. I think that contractors' defect liabilities could be included the defect of independent contractor' liability. When there are promises, like as some kind of contents the both parties agree or the special quality which is guaranteed by independent contractor and the breach of above contract or promise, the contractor is liable to this breach of contract. Following this conclusion, Firstly, the party providing work has control over the performance process, but only has to use control for the other party's sake. Secondly, the objects of the work contract has been continuously spread all through the time. A defective work can be defined as failure of the work to meet the quality or quantity requirements expressed in or implied by the contract. Thus for the decision whether the defects exist in the that work offered by independent contractor, it need to be considered two steps of judgments whether the evident promise or warranty by contractor exist and if exist, whether the independent contractor can be liable to the breach of promise or warranty. That is to say, to each of them apply general theories of agreement interpretation. Looking ahead, in interpreting, an important role might be played by the specified documents expressively or impliedly reported or offered by both parties and supposed by the owner in the project contract.
  • 21.

    A Study on Penalty Clause

    조일윤 | 2011, (52) | pp.633~658 | number of Cited : 6
    Abstract
    Generally, when making contracts such as dealing․lease․subcontract, etc, purchaser issues fund and other valuables to seller as a earnest money under the purposes of contract's evidence, default damage's information, cancellation right's deferring, etc. The earnest money has characteristics of evidence earnest money, penalty for breach of contract and cancellation charge according to the contract of the person directly involved. The penalty for breach of contract is divided into liquidated damages and penalty clause. (1) The penalty clause can be defined as “the penalty for breach of contract that creditor will collect independent of compensation for damages when debtor doesn't pay off his debts”. There is a struggle for the recognition of penalty clause's concept, but Korean precedents show that we recognize penalty clause. (2) Penalty clause has coercive function as a measure strengthening private control for default unlike the liquidated damages which have both fulfillment securing function and damage compensation function. Therefore, creditor can demand damage compensation by default with penalty clause. (3) Penalty clause is included to penalty for breach of contract, so conditions for demanding penalty for breach of contract should be fundamentally necessary for demanding penalty for breach of contract. And, penalty clause is included to private penalty which has controling function for default. So, imputation reasons are necessary, but damages are not necessary. (4) There is no regulation for increase or decrease when penalty clause is unfairly too little or too much, but precedents don't permit the increase or decrease. However, for the decrease, if the agreed penalty is excessively heavy in comparison with creditor's benefit obtained by obligation's compulsion, one part or the whole of it becomes null on the contrast to good public order and customs. So, they accept the possibility of decrease. There is no precedent for increase, but it will be proper to interpret like the decrease. In the actual dealing, people agree for penalty for breach of contract as a penalty clause. And, if considering the compensation for punishment damages recognized by foreign countries, it will be proper to regulate penalty clause more actively. It will be secure or fulfill the principle of contract compliance after the Roman law, ‘contract must be kept.’ more thoroughly.
  • 22.

    A Study on the helpful systems of Contract Performance to the Act which the State is a party in Korea

    Kye, Seung-Kyoon | 2011, (52) | pp.659~679 | number of Cited : 9
    Abstract
    According to the Korean Civil Law, the contract parties concerned are the mutually equal position, and they shall perform the contents of a contract in accordance with the principle of faith and trust. However, because of the public character of, or public interests of government contract, there are some useful systems to help the performance of the other party: Advance Payment, Paying for the cost for the completed parts or supplied parts, Adjustment of Contract Amount due to Price Fluctuations etc., Direct Payment to the sub-Contractor. Advance Payment is that the head of each central government agency or the public official in charge of contracts can pay the other party to the contract the price in advance in order to contribute to the performance of the other party. The head of each central government agency or the public official in charge of contracts can pay for the cost for the completed parts or supplied parts, even though the other party did not fulfill the contract completely. It can be called payment for the cost for the completed parts or supplied parts. If it is necessary to adjust the contract amount due to price fluctuation, design modifications, or other modifications to the contents of the contract, after concluding the contract for construction work, manufacture, service, etc. which becomes a burden on the national treasure, the head of each central government agency or the public official in charge of contracts shall adjust the contract amount pursuant to the provisions of the Presidential Decree. The head of each central government agency or the public official in charge of contracts can pay the price to the subcontractor in order to protect the subcontractor, even though the contract is not concluded directly between two parties.
  • 23.

    The Analysis on the Independency and Role of A Compliance Officer in its Company

    Jungjoon Ka | 2011, (52) | pp.681~712 | number of Cited : 8
    Abstract
    All of companies and people are supposed to abide by laws, rules and social policies. On the other hand, laws, rules and policies are supposed to be seriously implemented and observed. The government's main job is to ensure that laws, rules and policies are implemented while the compliance officer’s main job is to do that they are observed. Hiring a compliance officer by American companies is common practice and voluntary. The larger the size of companies, the more likely they are to hire a compliance officer. They are the most likely to establish the system for legal compliance process to more actively abiding by laws. In a particular, a compliance officer may perform inspections of a business to make sure that all legal standards required in a related field are being met. The compliance officer may direct a business to make changes and give the business a timeline for implementing changes that will better protect its workers and company. Since civil and criminal penalties for violations of statutes are quite harsh to companies and their directors and officers, abiding by statutes is a fundamental matter by each company. In Korea, the National Assembly amended the commercial law requiring listed companies to appoint legal professionals, including lawyers and law professors, as compliance officers to improve transparency in corporate governance. The revised law requires listed firms to hire at least one “compliance support officer” starting in 2012. I believe that the mandatory system for compliance officers is necessary for Korean companies to fit into global economic environment focusing on legal compliance. This may conform to the demand of the times for strengthening law-abiding corporate management. On the other hand, public opinion has not been positive for law community. Some suspect this amendment is a scheme to create more jobs for new lawyers coming out of law schools in 2012. I have noticed that this may not overlap with regulations of similar systems and not unnecessarily burden small and medium sized enterprises. The qualifications set for the new corporate post support the suspicions of listed companies. Eligible candidates must be lawyers, law professors with more than five years of teaching experience and people with sufficient legal knowledge and experience. This expertise is just one of the most important elements in effectively working the system of legal compliance. I believe the independency of compliance officer from board of directors and the social control of his or her status are more significant than expertise. The independency of a compliance officer refers to the relationship between his or her public role and his or her private role and to the balance of two roles. It is not difficult for a compliance officer to independently work for the board of directors hiring himself or herself. However, a lawyer is more likely and relatively to independently work for the board of directors than any other person who has other kinds of job because he or she is more likely and easily to find out other jobs than other people do. A lawyer is more likely and relatively to subject to social control than other people do. Social control refers to social mechanisms that regulate individual and group behavior, leading to conformity and compliances to the rules of a given society or social group. When a compliance officer becomes civilly or criminally liable for his or her illegal activities, he or she is also supposed to become socially liable for his or her noncompliance. If a lawyer becomes civilly or criminally liable for his or her illegal activities, his or her license is subject to revoke or suspend in law community. This is social control how to work for a lawyer when he or she works as a compliance officer. In this sense, a compliance officer is supposed to satisfy above three requirements to effectively work for the system of compliance officer under Korean society not providing sufficient civil and criminal liability to companies to abide by law.
  • 24.

    The Problems and Improvement of Export-base Insurance as Support Methods of Vessel Finance

    Sangkeun Jeong | 2011, (52) | pp.713~735 | number of Cited : 5
    Abstract
    Korea recorded 1 place from vessels order, 6 place from vessels possession in the world. This record brought us shipping expenses curtailment, improvement of income and expenses, security of transport etc. The competitive power of one country is decided in compliance with the support system which that nation is having. This includes tonnage tax, interest support, export support finances, guarantee of exchange rate fluctuation etc. In the meantime Korea is introducing tonnage tax, ship investment company, various export insurances etc. Korea introduced an export-base insurance in recent which protects financial institution making a loan at the marine transport enterprise. But this is having various weak points. (1) The terminology is not clear. For example “Accomplishment of process shouldn't be negligent” of article 10, section 2 of stipulation should be changed with “must accomplish a process”. (2) When the insurance contract becomes invalid, the whole premium should be paid in some cases. (3) The order of provisions of the insured cooperative duty and obligatory violation was reversed. The legislation order must be exchanged. (4) The terminology of insurance stipulation was incomplete. Concretely the name of stipulation 3rd chapter must be changed from “the unremunerative loss” to “the effect of obligatory violation”. (5) Article 3, Section 1 of stipulation should be changed following article 650 section2 of commercial law.
  • 25.

    Multinational Enforcement of U.S. Securities Laws and Protection of Korean Entities in the Security Class Action

    Yongjin Kim | 2011, (52) | pp.737~776 | number of Cited : 4
    Abstract
    For many years after § 23 F.R.C.P. was adopted, the United States was the center of class action litigation. § 10(b) of the Securities Exchange Act of 1934 has been the key anti-fraud provision of the US securities laws. Although the Act is silent as to its extraterritorial application, courts have analysed the Act's extraterritorial scope as a question of subject matter jurisdiction, relying on the so-called “conduct” and “effects” test. Because courts has applied these tests in an ad hoc, case-by-case manner, they are inherently unpredictable and unnecessarily complicated, This state of affairs has been particularly troublesome in recent years, as so-called “foreign-cubed” securities fraud lawsuits have proliferated in federal courts. The Supreme Court issued its decision in Morrison v. National Australia Bank, its first ever on the international reach of Section 10(b) and Rule 10b-5. It held that Section 10(b) applies only to fraud in connection with securities transactions that occur within the United States. This bright-line test then bars not only f-cubed claims, but some forms of “foreign-squared” claims (e. g., U.S. investor, foreign defendant, foreign investment transaction) as well. However, Morrison was confronted with the Dodd-Frank Act, in which Congress wanted to respond to Morrison by giving SEC and DOJ power to pursue the type of fraud alleged in Morrison -fraudulent conduct inside the United States that affects securities transactions outside the United States. This study analysed that the Dodd-Frank Act could not reverse Morrison and make Unites States securities laws apply. The Article identifies and analyses the procedural risks of Korean companies before American courts. In light of those important risks the Article strongly recommends that they make use of not only the Morrison but also the exclusive jurisdiction, which is prescribed in Korean securities class action Law.
  • 26.

    Research on Taxation Issues for Back-Door Listing

    전병욱 | 2011, (52) | pp.777~806 | number of Cited : 4
    Abstract
    The major taxation issue related to back-door listing is coupled closely with a question of how fair the valuation of the unlisted stock is. This study particularly presents the valuation problem associated with two tax court cases and their potential remedies. The difference in the two countervailing arguments boils down to whether to accept earnings estimates from independent appraisers, which are subject to the appraisers’ discretion and would lead to an overestimation of the unlisted stock, regarding the valuation of the stock. Because this overvalued amount would be accepted as a top-priority surrogate for the fair market value under the current gift tax law, it would not be possible to impose gift taxes on the major stockholder of the company, which would in turn make it very difficult to curb, by imposing huge gift taxes, the practice of ‘puffing’ the value of unlisted stocks through back-door listing. To remedy this problem, it is critical to regulate via capital market laws or gift tax laws the appraisers’ behavior of inflating estimates of future earnings. In particular, we could consider penalizing ex-post the appraisers whose estimates are subsequently found to deviate from the actual earnings by a large margin. Further, we could limit the extent to which an alternative valuation method is acquiesced to determine the fair market value of unlisted stock. Especially, we could confine to a minimum the exceptional cases in which earnings estimates (rather than actual earnings) can be a valuation base. Finally, we could give a high priority to the valuation method of unlisted stocks by which a fair market value is determined through a comparison of stocks of similar companies in the same industry.
  • 27.

    A Study on Improvement of the Mandatory Retirement System for Employment Promotion for the Aged

    김진태 | 2011, (52) | pp.807~843 | number of Cited : 18
    Abstract
    Korea's labor market with early or mandatory retirement runs counter to what the country faces, the ageing society. Thus, current retirement system should be improved to guarantee or even extend the age limit, thereby facilitating employment of the aged. There is also a need of revising the legal system to better protect the aged in the workplace and make the most of aged but highly skilled workers. The Korean government has set the age of 60 as retirement age through the enactment of 'Employment Promotion for the Aged Act' in 1991. However, for the past 20 years of its enforcement, the private sector has passively performed in extending age limit on its own. Moreover, it seems that the government has not taken relevant measures actively, only expecting companies to voluntarily follow the act. Many developed countries have prohibited the mandatory retirement system, because they think it could force aged workers to quit working which applies to age discrimination. However, Korea and Japan have regarded it as a legal system of protecting elder workers to work to a certain age. Long-term and systematic improvement of the retirement system is needed for protecting the elder workforce against the upcoming aged society. To facilitate aged workers' employment, the government should devise and integrate employment policies such as encouraging private firms to voluntarily extend the age limit; introducing the phased age limit extension; and enacting the prohibition of age discrimination which substantially leads to age limit extension. Especially the enactment of phased extension of age limit should be in line with improvement of pension system. The establishment of performance-oriented salary system plays an important in succeeding the improved retirement system. Age limit guarantee system is meaningless if employment for the aged does not occur. To prevent age discrimination act from being nothing more than a mere declaration, it should be linked with the advanced retirement system.
  • 28.

    The improvement of labour and social security law for employment promotion of the aged - Focused on the combination between the employment policies and social security ones -

    SeongTae Kang | 2011, (52) | pp.845~870 | number of Cited : 8
    Abstract
    With the change of the population to aging and aged, the government's labour force policies have focused on the age employment promotion in recent years. The main principle of the aged policy is quite obvious. That is to increase the employment to population ration for the aged. Though the government have been pursued the principle, the results of the policies have been very disappointed. In this context, this research keep eyes on “The policies Measure against Low Fertility and Population Aging” published in government, especially the employment concerned ones and try to suggest an complementary measures and alternative one. We carry out a through inspection of the aged policies concerning employment and social security such as the legal system related to mandatory retirement age, employment supporting to senior employees, acceleration of employment for the aged and so on. To resolve the employment and social security problems accompanied population aging society, we will emphasize more sustainable employment and improvement in social services for the aged. In this consideration, I emphatically declare the importance of extension of retirement age and transfer of sustainable employment for the aged. We hope to contrive the effective schemes for the aged employment protection and promotion on the basis of this research and the follow-up studies.
  • 29.

    A study on inventor's right to employer's interest obtained from foreign patent stemmed from employee invention

    이우석 | 2011, (52) | pp.871~903 | number of Cited : 4
    Abstract
    In modern days, company want to have patent in order to win in competition with other company. But because patent can be gained only from person's invention, company make employee invent. According to korea patent law, employer gains patent and he compensate for employee due to losing right of gaining patent. But wether can employee compensate for losing foreign patent is not clear. This issue is not matter of domestic law but that of international private law, because korea patent law is applied to only the relation of korea patent. korea international private law regulated that the law is applied to sphere related to foreign factors. Generally the sale of thing in foreign territory is to sphere related to foreign factors. Therefor, this issue need to apply korea international private law. There is no directive regulation related to this issue in korea international private law. Article 24 of this law is only infringement of intellectual property rights. Because this issue is concerning transfer contract of right to obtain patent from employee to employer, regulation related to contract should be applied to it. Article 26 of korea international private law is concerning to contract. According to this article, korea substantive law should be applied to the issue. Korea substantive law concerning this issue is patent law, the law to promote invention(발명진흥법), and civil law. The law to promote invention have directive regulation concerning inventor's right to employer's interest obtained from domestic patent stemmed from employee invention, but the law is applied only in realm of korea. Korea patent law prescribe the right to receive patent, but it did not prescribe contract to transfer the right. Therefor, inventor request compensation to employer according to korea civil law.
  • 30.

    동아법학 제52호 부록

    법학연구소 | 2011, (52) | pp.905~936 | number of Cited : 0