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pISSN : 1225-3405 / eISSN : 2713-5470

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2016, Vol., No.72

  • 1.

    Reinterpretation of Seongho Lee Ik's Criminal Law Idea

    HA TAE YOUNG | 2016, (72) | pp.1~42 | number of Cited : 0
    Abstract
    Ⅰ. 『Seongho saseol』 is a Joseon classical scholars' writing that directly challenged against corrupt late Joseon society around 300 years with ‘literature(文獻)’. It is composed of total 3007 articles. When reading the paragraph related to criminal law of 『Seongho saseol』, the researcher considered that Seongho's writings had an insight into our world today. There are about 22 writings related to criminal law. There were classified into criminal philosophy, punishment philosophy, criminal procedure philosophy, criminal case philosophy, and criminal law idea. This research investigated modern significance by analyzing the content that contains Seongho's insistence. Seongho definitely divided the concept between rape and adultery. Seongho interpreted the case of undressing with violence intending to rape belongs to rape. He also considered the case as a rape when a victim couldn't evade the criminal while running away being chased. The researcher considers it is an excellent law interpretation that had an insight into the matter of ‘intention’. Ⅱ. Seongho's criminal affair system reform plans are not the ideal theory. The alternatives that can concretely analyze and practice in reality are clearly suggested. Seongho's insistence has a big significance in respect of criminal policy today. Accordingly, he is called ‘a godfather of Joseon Silhak idea’. The researcher dare to evaluate it as ‘the pioneer of Korean modern criminal affair philosophy’. The paragraphs that Seongho, late Joseon hermit philosopher wrote were a huge ‘mountain chain of meditation’. The writer considers Seongho as an important ‘progressive thinker’ that connected Toegye(退溪, 1501~1570), Nammyeong(南冥, 1501~1572), Yulgok(栗谷, 1537~1584) and Dasan(茶山, 1762~1836). He viewed 300 years far away. The researcher wonders what would Seongho say to our society when he witness ‘Sewol ferry incident’, who lived in Gyeonggi-do Ansan. Also, the researcher wonders what would he make assessment of ‘Kim yeongran law’. Ⅲ. This research reviewed the modernistic significance by discovering the discourse related to criminal law included in Insamun, Gyeongsamun, and Manmulmun of 『Seongho saseol』. The significance of this research is to view the theory and reality of late Joseon criminal law, criminal procedure law, and criminal policy. Also, this research intended to enrich mental history of Korean criminal law by reinterpreting late Joseon history and Seongho's criminal law idea.
  • 2.

    Change of Applicable Clauses to the Criminal Case

    Byung-Gak Choi | 2016, (72) | pp.43~65 | number of Cited : 1
    Abstract
    The prosecutor is obliged to file a bill of indictment containing the charged facts and the applicable clauses with a competent court(the Criminal Procedure Act §254 ①, ③). The charged facts shall be stated clearly by specifying date, place, and method of a crime(the Criminal Procedure Act §254 ④). And several applicable clauses may be stated preliminarily or alternatively(the Criminal Procedure Act §254 ⑤). The prosecutor may add, delete, or change the charged facts or the applicable clauses in a bill of indictment only when the court recognizes the identity of the charged facts remains consistent(the Criminal Procedure Act §298 ①). The court may request the prosecutor to change the contents in a bill of indictment(the Criminal Procedure Act §298 ②). Although the court, not the prosecutor, has a finial authority to determine the clauses applied to the charged facts, it is necessary to have a process of changing a bill of indictment especially when it burdens the defendant substantially. According to the recent decision of the supreme court, the prosecutor has a discretion to select the clause between the Violent Offences Act §2 ① and the Criminal Act §351 in punishing the habitual extortion. And the court may not apply the latter without a process of changing a bill of indictment. But this article shows that the former prescribes harsher penalty than the latter based on actually same offence, so it is unconstitutional. Futhermore the court may apply soft clause on one’s own initiative because it is more beneficial to the defendant.
  • 3.

    Period for Exercise of Warranty(Right to Claim for Damages) and Prescription - Some Thought upon the Relation between Exclusion Period and Extinctive Prescription -

    Seo, Jong-hee | 2016, (72) | pp.67~95 | number of Cited : 4
    Abstract
    The Korean Supreme Court Decision 2011Da10266 Delivered on October 13, 2011 declared first time about the relation period for exercise of warranty and prescription. Thus, the buyer’s claim for damages as a warranty is subject to regulation of both exclusion period(Article 582 of the Civil Act) and extinctive prescription(Para. 1 of Art. 162 of the Civil Act). It means the special limit of warranty for 6 months after discovery of flaw of object does not exclude the regulation of prescription. So the right of claim damage as warranty is subject to double regulation of expiration, namely 6 month after discovery of flaw of object or 10 years after delivery of object. If one of the two periods expires, the right of buyer lapses without waiting for the elapse of the other period. Though buyer don't recognize defect of the subject-matter of a sale, prescription is complete. However, it is insufficient to protect buyer. For this reason, the Court regards the time it becomes possible to exercise a certain right as the day of delivery of the goods. That is to say, That is prescription starts from the point of recognition of possibility of claiming. It means that the Court has adopted a more flexible approach in dealing with the commencement point of the prescription. This Court's principle applies to not only defect of the subject-matter of a sale but also defect of the right of a sale. While when deciding whether such right as right of rescission is subject to double regulation of expiration, very exceptionally it will be accepted.
  • 4.

    Legal Problem on the Organ Donation of the Intellectually Disabled - Focusing on the study about Human Tissue Act and Mental Capacity Act -

    SONG YOUNGMIN | 2016, (72) | pp.97~119 | number of Cited : 0
    Abstract
    This study examined the legal structure on the organ transplant of the intellectually disabled in terms of their own consent. Self-determination of the intellectually disabled was examined as fundamental level whether the right of self-determination of the intellectually disabled exists or not. It should be understood as different level of problem between self- determination of the normal and the intellectually disabled person. The debate on the self-determination of the normal person should be focused on how much the self-determination on their bodies would be admitted, and it can be the issue how much the self-determination of individual would be admitted as social ethics like euthanasia, death with dignity, gene therapy, clone technology and so on. However, the intellectually disabled should be regarded as the individual to be protected, not the reasonable and liberal individual, thus, the problem of self-determination of the intellectually disabled is who and how to support the self- determination of the intellectually disabled on the assumption that the disabled person are also able to exercise their self-determination. Sometimes, the intellectually disabled are not easy to deal with information, or to use and decide information, or to communicate with other people due to disability, but it can be a differentiation problem to the individual in case that the intellectually disabled are regarded as if they are uniformly lack of self-determination. It is an important issue for the intellectually disabled to be guaranteed to have the opportunity of self-determination as an individual free from other people's pressure. Various problems related to the intellectual disabled like Artificial abortion, contraceptive operation, life prolonging treatment, and so on would occur with the development of biomedical science technology. I suppose this study would be the basic reference to secure their self-determination.
  • 5.

    A study of the defamation by media report and right to delete

    Bae Byung-Il | 2016, (72) | pp.121~143 | number of Cited : 8
    Abstract
    Right to delete is a kind of right to be forgotten, claiming for a removal of disturbance to protect the personal rights in the form of right of reputation, after the damage is done. Claim for a removal of disturbance can be done with the claim for damages caused by defamation or can be done independently. Previously defamation done by traditional media, such as papers or broadcasting, occur temporarily, stored in reader’s or audience’s memory, so as time passes, the damage is decreased or vanished. But defamation done on the internet, its damage endures, and can be retrieved at any time anywhere, and easily transmitted to other places, so to return to originally undamaged state, its source should be deleted or blocked. In cases like this, it’s impossible to remedy by compensations or correction reports, but only in ways of deletion, removal, access restriction of its source. In this sense, right to delete takes its importance as a remedy for defamation by in today’s media report, apart from compensations or correction reports. Right to delete is in effect only when the media report has an inaccuracy, has no public nature, and is accessible by search engines. Furthermore, its damages should be clear, considerable and notable. Meanwhile, at first although damages caused by defamation might have been serious, as time goes by, they will be decreased or alleviated. Also when brought up in later time, its damages will be slightly different from when it first appeared on public. Compared to this, it’s possible that as time goes on people’s demands for right to know and freedom of speech will rise. So it can be said that the freedom of speech and protection of personal rights is in inverse relationship
  • 6.

    A Study on Employee Rights as a Creator in a Semiconductor Integrated Circuit Layout-Design Created in Service, and Employee Compensation

    Jun, Yong Cheul | 2016, (72) | pp.145~170 | number of Cited : 0
    Abstract
    Article 5 of the Act on the Layout-Designs of Semiconductor Integrated Circuits provides that “With respect to a layout-design by a person employed by a government, a corporation, an association or other employer (hereinafter referred to as “corporation, etc”), the corporation, etc. is deemed to be the creator, unless otherwise provided in an agreement or an employment regulation and the like”. Pursuant to this provision, the position as a creator is in principle vested in the employer of the person who created the layout-design in service. Accordingly, the employer can own a right to the layout-design created in service and also exercise the right; however, no compensation is given to the employee who actually created the layout-design, only based on the laws associated with the semiconductor layout-design protection. This is compared with layout-designs created in national research & development (R & D) projects. In national R & D protects, if, as the R & D output, a layout-design is registered and accordingly a layout-design is established, the researcher who created the layout-design can receive compensation based on the Technology Transfer and Commercialization Promotion Acct and the Regulations on Management of National Research and Development Projects. Recently, it has been noted that the number of layout-design registrations by large companies has been reduced; conversely, that of layout-design registrations by the colleges and universities has increased. Considering structure and specialty of the semiconductor industry, it appears that it is necessary to induce those companies being of great importance in the semiconductor industry to increase the number of layout-design registrations. In this connection, it is seen that, if the Act on the Layout-Designs of Semiconductor Integrated Circuits is improved to recognize the employee who created the layout-design in service as a creator of the layout-design and to compensate him/her for the creation, the availability of the Act on the Layout-Designs of Semiconductor Integrated Circuits by the semiconductor companies would be enhanced. For this Paper, I have reviewed the laws and regulations to protect the layout-designs of the semiconductor integrated circuits by each country, based on whether the position as a creator of the layout-design created in service is vested in the employer. In addition, I have reviewed whether compensation can be given to the employee who actually performed the act of creating a layout-design if the layout-design was created in service, and whether it is necessary to revise Article 5 of the Act on the Layout-Designs of Semiconductor Integrated Circuits.
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