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pISSN : 1225-3405 / eISSN : 2713-5470

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2014, Vol., No.63

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    Legal improvements for the effective introduction of wage peak system according to mandatory retirement age of 60 years

    Lee, Hak-Chun | 2014, (63) | pp.1~38 | number of Cited : 7
    Legal improvements for the effective introduction of wage peak system according to mandatory retirement age of 60 yearsApril 30, 2013, Act on Age Discrimination Prohibition in Employment and Aged Employment Promotion in Korea have introduced the mandatory retirement age of 60 years. To improve the effectiveness of retirement system of 60 older and over, firstly it is needed for workers at work to ensure stable employment or extend employment until 60 older and over. instead of supporting reemployment or job diversion. On the other hand, it is needed for companies to deviate from the burden of seniority wage system type. By doing so, companies prefer to keep the elderly workers in employment and it may be activated to reorganize current wage system and ‘wage peak system for prolonged retirement age’. If it legally not improved that the consensus for reorganization of wage system by both labor and employer or adoption and application of the wage peak system, it can not ensure the effectiveness of the law or so difficult to settlement the mandatory retirement system of 60 older and over. In particular, Such a following legal improvements should be provided: In this study, I studied individual labor relations law, collective labor relations law and social insurance law, etc. Based on this studies, conflict settlement and labor- management agreement surrounding the introduction of the extension of retirement age and wage peak system, measures to simplify introduction procedures of wage peak system, support for vulnerable workers in SMEs, judicial interpretation surrounding the dismissal by management reasons (Labor Standards Act, Article 24), collective agreements and issues surrounding the disadvantage changes of work rules, wage cuts according to wage peak is whether or not be age discrimination, the degrade of retirement benefits according to introduction of wage peak, Strengthening the linkages of retirement age and pension benefits age, the preparation of regal provisions for introduction of wage peak, wages legal support system surrounding the peak system improvements were suggested improvements. improvements of government support to enable the introduction of wage peak system etc.
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    A Duty of Doctor about Faithful Notice against Its Patient or the patient’s bereaved family and The Law

    SONG YOUNGMIN | 2014, (63) | pp.39~66 | number of Cited : 3
    1) A Doctor in general is liable for a faithful notice against its patient or the patient’s bereaved family from beginning practising medicine to terminate practising medicine. This obligation is recognized by the Civil Law Section 683 that provides a duty of report in case of a contract of delegation. The benefits and protection of laws in the obligation is in deciding ways of livelihood of the patient after treatment of him or her. In case of death of the patient, however, what is the benefits and protection of laws in the obligation against the bereaved family? The family has generally closely legal interests in the patient's everyday life and the Doctor's practising medicine. The legal interests include rights to be noticed because the patient's families do their best to cure or improve disease of the patient with the notice. Accordingly to a Doctor has a obligation of the notice against the patient's bereaved families as an incidental obligation by the contract of practising medicine. It is notable, therefore, that the objects of the notice obligation should be decided in the light of this doctrine. 2) An trustee has generally an obligation only to perform a trust contract with a duty of care. Notwithstanding the obligation only by the contract, why does the doctor has a obligation of the notice against the family?Because of peculiarity and special of the practising medicine, the fiduciary relationship between the patient and a Doctor is very important. A Doctor does his or her best to protect it patient's interest, and this effort should be continued not only for the patient's survival, but after the patient's death to protect the patient's personal rights. In case of the patient's death, furthermore, there are two important rights. One is to protect the patient's personal rights, the other is to protect rights to decide ways of life of the patient’s bereaved family. The Doctor must protect these rights above. These rights can not be recognized by only a good manager caution obligation based on the Civil Law, and are more high level rights than the good manager caution obligation. These rights are only introduced by the fiduciary duty of loyalty on the fiduciary relationshipIn conclusion an author suggest that the Civil Law Section 681 should be newly interpreted to recognize a Doctor’obligations above under present legal systems. In general though the Section 681 is interpreted to provide the duty of care of the trustee, the Section should be interpreted to include the fiduciary duty of loyalty by the trustee in case of the peculiarity and special of the practising medicine.
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    Die Voraussetzungen und Wirkungen von Bearbeitungen fremder Werke

    Choi, Sang Pil | 2014, (63) | pp.67~90 | number of Cited : 3
    Nach §5 kUrhG werden Bearbeitungen eines Werkes unbeschadet des Urheberrechts am bearbeiteten Werk wie selbständige Werke geschützt. Nicht nur an schutzlosen Erkenntnissen oder Ideen knüpfen die Urheber sondern auch an bestehenden schutzfäigen Werken. Art und Umfang der Ahnlehnung an bereits bestehenden Ausgangsmaterial können sehr unterschiedlich sein, daher die Abgrenzung zur freien Benutzung, Vervielfältigung oder Miturheberschaft ist nötig. Nur mit Einwilligung des Urhebers des bearbeiteten Werkes dürfen die Bearbeitungen des Werkes benutzt werden. In dieser Arbeit handelt es sich um die Beziehung zwischen dem Bearbeitungsrecht and demjenigen Recht des Urehbers, das die Entstellung des Werkes zu verbieten.
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    The Pledging of Life Policy - Focused on the Contract of Life Insurance for third Parties -

    JinHee Hong | Kim, Pan Gi | 2014, (63) | pp.91~120 | number of Cited : 3
    Life insurance claims are conditional monetary claim if an insurance accident occurs in the future, so are pledgeable. In life insurance policyholder and the insurer of blood is the same person, beneficiary, who is often a third party. Both beneficiary and policyholder in the contract of life insurance for others may contract of pledge even before insure accident. Policyholders should dominate the disposition of insurance claims before insure accident or the use contract of life insurance as property, third party designated as insurance beneficiary is not to be led. Thus, the policyholder can set up pledge on the life contract without the consent of the beneficiary, the pledgee can receive reimbursement the bond from its insurance claim. On the other hand, the insurer will be able to be held the risk of double burden or complicated paperwork. Pledge creditor of the pledge can not be sure of the rankings. However, practical problems do not have reasonable grounds to deny policyholder's right to set pledge on the life insurance. Of course, the unnecessary disputes should be avoided. To do so, it is important to its maintenance procedures in insurance practice. The insurer would be better to prepare in advance in order to control the policyholder to some extent. And the policyholder should follow the type prepared in advance by insurer.
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    A study of standards for disputes regarding suitability and the duty of explanation on transaction of derivatives

    김희석 | 2014, (63) | pp.121~158 | number of Cited : 3
    This study is about standards for disputes, suitability and a duty of explanation of derivatives transactions, according to Korean cases of derivatives transactions. The financial crisis in the United State of America made the exchange rate of Won/US dollar high and the companies buying KIKO derivatives (knock-in and knock-out forwards) lost a lot of money in these tradings. Disputes of derivatives transactions like KIKO cases are increasing by the expansion of financial markets. Investors are responsible for trading of derivatives when they have made their own decisions whether to enter into a deal or not to. But if the investors lose in their derivatives transactions, they may sue the financial company selling those financial products. Main issues in these disputes are the violation of principle of suitability and a duty to explain, etc, and I reviewed standards for disputes of derivatives transactionsThere are several standards for suitability in derivatives transactions in disputes. First, the structures of OTC derivatives shall be fair between investors and financial companies. Second, suitability shall apply to the investment strategy. Third, the valuation of derivatives shall be fair and correct. If the valuation of derivatives is not fair or the difference of valuation of derivatives is vast, it is a violation of suitability. Also, there are several standards for the duty of explanation of financial products like derivatives in disputes. First, each financial investment business entity shall explain the essential factors of derivatives, and receive written confirmation that the investors understand the explanation of derivatives. Second, the business margin is not included in the essential factors to explain. Third, in case that unfair dealing linked underlying assets could be involved, so that, conditions for early termination, termination of contracts, ets, are explained exactly and understandable. Finally, it is not good to explain only good views on the products. It shall be both good and bad points in derivatives.
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    A study about conditions analysis on the scope of the driving insured in voluntary automobile insurance standard policy conditions

    Cho, Gyu Seong | 2014, (63) | pp.159~192 | number of Cited : 3
    Voluntary automobile insurance standard policy conditions are composed of five types of insured, namely in addition to ‘the named insured’ indicated in the policy the following persons are insureds: ‘the spouse (including unregistered spouse) and relatives of the named insured’, ‘the permitting insured’(namely, any person who drives or uses the automobile with the permission of the named insured) and ‘the employer of the named insured’, and ‘the driving insured’(namely, any person who drives for the above mentioned each insureds)Court rulings and claim adjuster’s affair have caused confusion because of the interpretation on the scope of the driving insured is different. In order to resolve these issues, I think that analysis on the scope of the driving insured in automobile insurance policy conditions must comply with the purpose of introduction and the origin of terms and conditions. According to the existing the Supreme Court’s judgement, if the driver is employed, without permission of owner or not, he became the driving insured. But I think that the existing the Supreme Court’s judgement is wrong. Because even though a person is the employed driver, if he drives for his own interests, he is not the driving insured but automobile operator(=means a person who operates an automobile for himself) by Act on Guarantee of Compensation for Loss caused by Automobile. Fortunately, in recent years, the pertinent Supreme Court’s judgement which the interpretation about the scope of the driving insured exactly determines has been sentenced. According to this Supreme Court case, even though a driver would have been driving for the permitting insured, if his driving is against the named insured’ apparent permission, he is not the driving insured. In conclusion, I strongly support this Supreme court case, because the judgement can make it clear the implication and extent on the scope of the driving insured under the automobile insurance clauses. Also I propose a revision of the provisions in order to eliminate any dispute relating to the interpretation of terms and conditions.
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