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2012, Vol., No.57

  • 1.

    A Study on the Family relationship at Fishing Village in the late Joseon Period - Centering around the Geojedo Gujora 'Hangri Hojeokjungcho' Census -

    LEE JONG-KHIL | 2012, (57) | pp.1~52 | number of Cited : 8
    Abstract PDF
    Fishing village is different from farm village in terms of its life base. So far, fishing village has been studied by many disciplines including Sociology, Anthropology, History(Economic History) etc.. This study tries to show what the family relationship of fishing villages has been sustained in the late Joseon Period, making use of the Census Register and any other old documents. In order to study family relationship of fishing villages, I analysed old document of Geojedo Gujora ‘Hangri Hojeokjungcho’ Census etc. in the late Joseon Period. This ‘Hangri Hojeokjungcho’ Census was written every three years(1863~1893), which contribute to shedding light on the diverse aspect of Geojedo fishing village society at that time. I make this article as following to look for the true picture of family life, family scale and the process of human existence. Granting that ‘Hangri Hojeokjungcho’ Census is not true and makes an error, I think that it forms the foundation of understanding the family relationship in Joseon society. In addition, this study reviews social aspect of fishing villages in the late Joseon Period.
  • 2.

  • 3.

    A Study on the Request for Rectification of Korea Communicaitons Standards Commission

    Choung Hye Uk | 2012, (57) | pp.53~83 | number of Cited : 9
    Abstract
    Korea Communicaitons Standards Commission(KCSC) was established according to Establishment of Korea Communications Commission Act. However, this act does not specify substantive enactment regarding the KCSC’s legal position. Accordingly, there exists a debate on whether the committee is an administrative agency or non-governmental self- regulatory organization. Foremost, according to the organization law, it is hard to conceive it as an administrative agency. On its functional side, however, it can be seen as an administrative agency as it is a public entity that is entrusted with and perform administrative authority. According to Administrative Procedures Act and Administrative Litigation Act, any public entity and private person who are entrusted with and perform administrative authority are administrative agency. For KCSC, because several things, it can be said to be entrusted with administrative authority. As a means of contents regulation, KCSC utilizes administrative restriction and request for rectification. There is a debate on whether the request for rectification, that KCSC uses as a contents regulation, is an administrative measure in its legal sense. Administrative measure is defined as: an administrative agency’s act under the public law that sets up a certain rights according to the regulations, gives an obligation duty, or causes extra legislative effects on particular cases which directly change the people’s specific rights or obligations. Regarding the legal sense of KCSC’s request for rectification, lower instance precedent once decided that it is an administrative measure that is subjected to appeal litigation. However, when not complying to KCSC’s request for rectification, only an administrative measure of future restriction is applied while no legal obligation is imposed. This is equivalent to the administrative guidance where it prescribes the request for rectification as an administrative procedure that must be carried out before an administrative measure takes place. Hence it is appropriate to see KCSC’s request for rectification as an administrative guidance. The only problem that arises if KCSC’s request for rectification is considered as an administrative guidance is a method of remedying the violated rights. There exists an appeal system for rectification which presents a procedure to go over the legitimacy of the administrative guidance. However, it is more appropriate to comprehend the concept of administrative measure, that is subjected to the appeal litigation, according to the dispute law theory. Therefore, to remedy the basic rights thoroughly, it will be more appropriate to include the committee’s request for rectification, which is an administrative guidance, to the appeal litigation’s subjects.
  • 4.

    A study legal and institutional for the prevention of suicide - Focused on Suicide Prevention and Establishment of Culture of Respect for Life Law -

    Park, Hyun-Jung | Park, JongIk | 2012, (57) | pp.85~118 | number of Cited : 13
    Abstract
    The right to life specifies the right to defend against the state, that makes it possible to demand the state's violation to stop, when the state violates an individual's right to life. This paper attempted to discuss the need for and the effectiveness of ‘Suicide Prevention and Establishment of Culture of Respect for Life Law’ (referred to henceforth as ‘Suicide Prevention Law’) that has been active since March 31, 2012, by revisiting the meaning of the right to life which guarantees the highest value, the life, and is a major premise for guaranteeing all human rights, within the boundary of the state's duty to protect it from the violation of the right to life by the third person as a private individual. Korea's suicide rate is 28.2 people in 2010 (per 100,000) and ranks first among OECD countries has been overwhelming. Such a sharp increase in suicide rates, despite its social atmosphere, while the suicide of an individual's psychological problems have a tendency to lightly, socially proper attention was not paid. March 2011 “Suicide Prevention and Establishment of Culture of Respect for Life Law” was passed, by taking personal responsibility for the suicide were able to look at a wider dimension, countries need to protect the lives of the people for national legal obligations that provide a basis that is meaningful. And multifaceted and wide approach to realize the level of suicide precautions necessary for the prestigious law you have a legal basis to establish the background of suicide prevention can be called. This paper pointed out significances and deficiencies of Suicide Prevention Law through examination of it and discussed the legislative complementation for it. Considering few laws concerning suicide exists in the world except Suicide Prevention Law in Japan and law is only a by-product of societal needs, it would not be easy to find the status of suicide prevention laws that we can use as reference by comparing laws in other countries where suicide is not as serious. Therefore, it is difficult to predict effectiveness easily with regard to legislation at the moment. However, from now on Suicide Prevention Act should act as a measure to achieve the visible goal of the reduction in suicide rate through relevant policy-making and the execution of sufficient budget, and the revision of the law needed to achieve the goal should be accompanied.
  • 5.

    Considerations on the Limit of Restorative Justice

    CHANG GYU WON | Yoon Hyun-seok | 2012, (57) | pp.119~144 | number of Cited : 12
    Abstract
    People are arguing with each other for plans whenever problems are revealed due to school bullying or excluding. It is problematic that many countermeasures have already been discussed and attempted. Nevertheless, it is indefinitely repeated like the myth of Sisyphus or a Mobius strip. Although the disciplinary magnitude has been strengthened day by day, agonies on what could be the objective foundation for the strengthening have been covered due to the reason that crimes can be reduced. The thoughts of simple utilitarianism to ignore minority for majority have been accepted as if there were answers. Although we know there are many problems, it is difficulty to clarify the characteristics of the problems. Would they be problems out of the institutions? Would they be problems out of operations? Would those problems are fragmental or partial if the problems come out of the institutions? Or, would they be fundamental or comprehensive? Would they be external problems or internal problems in the penal and judiciary institutions if they are operational problems?The existing frames and their subsequent performance which have been made over issues called crimes and punishments up to now have been gradually negated with a new competitive paradigm appearing due to the doubt “Would it be good enough for these?” Consequently, a trend in an attempt to consider crimes, criminals and the issue on punishment against them appeared under the name of restorative justice. This essay attempts to deal with the applicability of restorative justice around the new paradigm as its main interest. Often, the traditional criminal laws in response to restorative justice have been discussed as an alternative for the limit of penal sanctions, especially one of the alternatives to be reviewed fundamentally in the juvenile laws. Accordingly, the applicability of thoughts for restorative justice around juvenile laws has been considered from the perspective of its limits.
  • 6.

    A New Approach to Mutual Misunderstanding Under The Anglo-American Contract Law

    Jong Geun Lee | 2012, (57) | pp.145~172 | number of Cited : 2
    Abstract
    It is a prevalent view that a contract involving mutual misunderstanding is void ab initio, because there is no subject matter agreed between the contractual parties. In the Anglo-American common law it is a doctrinal principle that agreements based on a mutual misunderstanding can not be enforced. Perhaps the case of Raffles v. Wichelhaus decided in 1864 in England is one of the most important cases regarding mutual misunderstanding. The decision in Raffles v. Wichelhaus has been followed as a precedent consistently in England. And in Canada, the decision itself has not been followed frequently, but its result has been taken generally. Most of all, it is in the U.S. that we can find the most developed shape of case law regarding mutual misunderstanding in the process of contract formation. Anyway, if any contractual obligations between the parties can not be enforced on the grounds that there are no legally enforceable agreements, then in numerous instances, one of the parties will see unexpected benefits and the other party will experience unexpected losses for relying on the apparent contract. Consequently, an alternative legal principle needs proposing to improve upon the efficacy of the results in most cases involving mutual misunderstanding. One of the alternatives is that each party involved in the agreements based on mutual misunderstanding should be given the right to conventional contract remedies, vis-à-vis the other party, as if there were two sets of rights and obligations between the parties. Thus, in conclusion, the new proposal is that the reasonable expectations of the parties to the agreements based on mutual misunderstanding would be given remedies by allowing each party to enforce the contracts to the other party.
  • 7.

    Multiple claims and the Principle of double consideration in a Bankruptcy Procedure - Focus on Japan Supreme Court Decision Delivered on May 16, 2010 -

    Seo, Jong-hee | 2012, (57) | pp.173~200 | number of Cited : 0
    Abstract
    In cases where multiple debtors are liable to fulfill the total amount of obligations, when all or some of such debtors are declared bankrupt, creditors may exercise their rights as bankruptcy creditors on the total amount of claims they hold when the debtors are declared bankrupt to each bankruptcy foundation under Article 428 of the Debtor Rehabilitation and Bankruptcy Act. It is not until the total amount of the claims are extinguished that persons who hold rights to future claims for reimbursements of the debtors may exercise their rights as bankruptcy creditors on the total amount of such reimbursements on each bankruptcy foundation. Thus, even when persons who are liable to fulfill each individual obligation complete repayment and extinguish their obligations to any creditor after bankruptcy procedure commence, such creditors may exercise their rights on the total amount of claims they hold at the time that the bankruptcy procedure commence, unless the total amount of the claims are extinguished. If jonint guarantor extinguish one of multiple claims, creditor may not exercise his(her) right on the total amount of multiple claims. Because extinction of multiple claims must be treated separately(one by one). If not so, it differentiate between multiple creditor and general creditor. Also it restricts claims for reimbursements of the debtors(jonint guarantors, joint and several debtors). When all or some of such debtors who are liable to fulfill the total amount of obligations are declared bankrupt, performance must be appropriated throughout not designated appropriation of performance by consent but constructive appropriation of performance by law. Because there are fears designated appropriation of performance by consent could make inroads into principle of double consideration(Grundsatz der Doppelberücksichtigung).
  • 8.

    다문화사회에 있어서의 친권제도에 관한 연구

    조일윤 | 2012, (57) | pp.201~230 | number of Cited : 1
    Abstract PDF
    오늘날 우리나라는 국제결혼의 증가와 이민 등으로 다문화사회로 변화되어 감에 따라 다문화가정 내에서의 친권에 관한 많은 문제가 발생한다. 이와 관련하여 주로 발생하는 문제로는 (1) 친권의 개념과 그 본질의 이해의 차이에 따른 문제, (2) 친권행사에 있어서의 문제, (3) 친권의 내용에 대한 문제, 특히 거소지정권과 징계권에 관한 문제를 들 수 있다. 먼저, 친권의 개념 및 본질에 관한 문제는 여러 외국에서와 마찬가지로 우리나라도 친권을 부모의 권리로서가 아니라 의무 또는 책임으로 인정하여, 다문화가정에서의 분란의 소지를 줄이는 것이 타당하다고 생각된다. 다음으로, 친권행사에 관한 문제는 자의 의사결정권을 보다 더 존중할 수 있도록 제도를 재정비하고, 계친자관계에도 현실사회에 적합하도록 친권을 인정하여 다문화가정에 합리적으로 적용할 수 있도록 제도를 정비하는 것이 필요하다고 생각된다. 끝으로, 친권의 내용과 관련하여 자녀에 대한 거소지정권은 자녀의 복리를 위하여 최소한도로 인정되고, 징계권은 폐지 또는 한계를 명확하게 하는 것이 필요하다고 생각된다. 이상과 같이 우리나라의 친권제도에서 발생하는 한계를 극복하고 보완하여 미성년자의 권리를 적극적으로 보장하고 다문화사회에 적합하도록 하기 위해서는 여러 외국의 입법례를 참고하여 우리나라의 친권제도를 재정비하는 것이 필요하다고 생각된다.
  • 9.

    A Critique on the parody in the Korean Copyright Act

    Kye, Seung-Kyoon | 2012, (57) | pp.231~257 | number of Cited : 10
    Abstract
    This paper is devoted to examining a parody from the viewpoint of legal perspective, especially centering around the Korean Copyright Law. A parody is one of the important arguing points in the copyright law of each nation, because it has many issues related to the author's moral rights and author's property rights of copyright. In addition, a parody is the most important example to show the difference between copyright and patent as well as trademark. To borrow the core contents in the protected original works of others is the clearest character which is not criticised by the author of original works. It is praised by the public, meaning means legal and new creative works, which is qualified to be protected by copyright law. However, if a man use the core contents of patented invention and protected trademark, it is considered a direct infringement under the Korean Patent Act or Trademark Act. I think that the most similar concept to parody is a plagiarism which is taking the words or expressions protected by law from other's works and use as his own without admitting one has done so. The plagiarist has a tendency to insist that his works are a parody that means original and creative works. Even though the creative structure between parody and plagiarism is similar, the direction or effect of each one is thoroughly different. According to the Korean Copyright Act that was revised in last year, parody is anticipated to be subject to the Fair Use Clause that has recently added. This Clause was developed over a hundred years ago in the American Copyright Law with many cases.
  • 10.

    Problems and Improvement Devices of related Laws Study of Early Childhood Education Act and Improvement Plans of private Kindergarten System

    Lee, Hak-Chun | 2012, (57) | pp.259~287 | number of Cited : 7
    Abstract
    Korea does not differ significantly from the direction of the advanced countries of early childhood education policy. A kindergarten is also defined as an educational institute in public school system. Korea manages kindergartens based on “Early Childhood Education Act” and care facilities based on “the Infant Care Act”, separately. Enacting the special early childhood education, Korean education of kindergarten is reflected the characteristics of the education. In case of the private kindergarten, it can recognize the necessity of the special “Private Kindergarten Act” by reflecting its own speciality and originality. However, It is difficult to find original “Private Kindergarten Act” in foreign countries. In Japan, Kindergarten education is baesd on “School Education Act”, too. In case of Korea, it can be difficult to realize enacting original “Private Kindergarten Act”, except public one. It is to be desired that reflects speciality of early childhood education and consistent policy by the revision of the standing rules. This study intend to review trends and suggestions of advanced countries to kindergarten education, compare the state of early childhood educational policy with the interested parties' points, and estimate the policy in Korea. Moreover, It intend to review current “Early Childhood Education Act” related to private kindergarten, raise several points, and hasten the improvement. Especially, it design to review necessity of original “Private Kindergarten Act” and suggest improvement of related rules.
  • 11.

    Legal Problems and Proposal on Long-Term Care Insurance Act for the Aged

    고준기 | 2012, (57) | pp.289~317 | number of Cited : 13
    Abstract
    With entry into an aged society, numerous problems of the aged to health of the elderly among the elderly are associated with chronic disease in elderly individuals with disabilities and their activities of daily living, such as the morbidity and instrumental activities of daily living from carrying on the family as alleviate caregiver burden and redundant use of National Health Insurance Act due to a system for reducing the fiscal deficit as from 1 July 2008 are being conducted nationwide. The Long-Term Care Insurance plan has been successfully enforced in many ways, such as an increase number of recipients of the service and improvement of the qualify of elderly life etc. However, problems in the Long-Term Care Insurance Act for the aged since the Act has been put into effect include service quality and effectiveness of care issues. Effective management of Long Term Care of the elderly by providing ways to improve the quality of life, ease the burden of the family. This study is to review the Long-Term Care Insurance Act in Korea in order to find some implications and suggest policy alternatives for the improvements of the system. The main contents of this paper are diagnosis of present state and problems of long-term care insurance system, directional establishments in constructing new system and consideration of practical alternatives of new system. Some lessons from foreign experiences show that the more wide range of the aged could get the Long-Term Care Insurance services by giving them proper legal rights. At the same time it requires as well as more public funds and its efficient management and fully qualified home helper and education program for them. However, one of the most important issues, whether or not providing cash benefit, is still unresolved. This paper suggest that the cash benefit in long-term care insurance is indispensible in achieving the goal of the long-term care system. The law must be presented in elders protections for social insurance to settle the home service, day-night care service and counseling system. Welfare of the aged Act is just welfare service law for the aged focusing on facilities welfare and about care for the aged Long-term Care Insurance Act for Aged plays an important part. In the perspective of Welfare of the aged Act, the enforcement of the plan has to solve the newly rised problem about the blind spot as well as to lead the various and extensive role on preventive and complementary part of the service. Nonetheless Welfare of the aged Act does not adequately cope with these kind of problems. To solve these problems, relationship between two parties has to be clearly defined according to the aim and the purpose of the law and based on that, following problems, such as the scope of the recipients, details of the service, comparison with other countries, and financial matter has to be examined.
  • 12.

    동아법학 57호 부록

    법학연구소 | 2012, (57) | pp.319~351 | number of Cited : 0