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2017, Vol., No.74

  • 1.

    A Study on the Human existence and the Origin of Academic thought of Professor Lee, Hang-nyeong

    LEE JONG-KHIL | 2017, (74) | pp.1~42 | number of Cited : 2
    Abstract
    This paper is to review the human existence and the origin of academic thought of professor Lee, Hang-nyeong(So-go), paying due regard to his whole life. He studied laws at Kyeong-seong imperial university. After the freedom from Japanese imperialism he took up the study of philosophy of law and civil law, but he did not release his hold on literature. He made the best use of Literature, which could resolve the all doubts of life. Literature has creativeness, conscience and idealized view, but Jurisprudence attatches importance to actuality, concreteness and practical aspect. Therefore he expected that these two realms are to fuse into reconciliation for the pursuit of right human society. Also Lee Professor enthusiastically studied the origin of Korean thought and combined it with his life which is connecting academic works and religions. Especially He firmly maintained the inter-disciplinary view which should have the integrated appreation on various academic realms, such as Literature․History․Philosophy․Oriental thought․Law and the like. He spoke his mind that it was very important to study the respect for man’s life and dignity, conscience, autonomy in his philosophy of law. But also in religious life, he believed in various religions such as Confucianism, Buddhism, Taoism, Christianity etc.. After the freedom from Japanese imperialism, he continuously lived a penitential life because he had been a public career under the Japanese colonial period. Eventually I expect that we have to carefully introduce his academic and educational thought into our risk society which is in a state of confusion.
  • 2.

    A Critical Study on the Punitive Damages under the Korean Legal System

    JEOM IN LEE | 2017, (74) | pp.43~86 | number of Cited : 30
    Abstract
    In Korea, there has been an on going controversy over the adoption of punitive damages. Among the legal scholars, the overriding opinion over the system was mostly negative. However, recently the argument that punitive damages should be adopted in specific cases started gaining momentum and in March 11th, 2011, with the revision of the “Fair Transactions in Subcontracting Act” punitive damage was first adopted. In addition, punitive damage system was adopted in “Act on the Protection, etc. of Fixed-Term and Part-Time Employees,” “Use and Protection of Credit Information Act”, and “Act on Promotion of Information and Communications Network Utilization and Information Protection, etc”, thereby becoming law in force. Due to the casualties caused by Oxy Reckitt Benckiser Group plc.’s sale of humidifier sanitizers, the public is demanding that punitive damage applies comprehensively to Product Liability Law. The national assembly considered the public argument and suggested the adoption of punitive damages in various acts and some of them have been ratified. So Korea’s punitive damage system will be compared with that of the US, which could be deemed as the origin of punitive damage system and Korea’s current punitive damage system will be assessed and an effective method to implement punitive damages successfully will be suggested.
  • 3.

    Damages, Consequential Damages, Lost Profits, Foreseeability, Reasonable Certainty, New Business Rule

    JIN, DO-WANG | 2017, (74) | pp.87~115 | number of Cited : 1
    Abstract
    Generally, a party that establishes a breach of contract claim may recover benefit of the bargain damages to put it in the position it would have enjoyed had the contract not been breached. Such damages may include the profits the party would have made had the contract been fully performed. The claimed lost profits may be general damages, consequential damages, or a combination of both. Because damages for lost profits are too speculative to be defined, courts have had a trend toward limiting the power of juries to award damages for lost profits. The trend includes a popular legal rule, foreseeability, derived from Hadley v. Baxendale. However, there is a transformation from the foreseeability to a reasonable certainty rule in determining whether to award damages for lost profits. That is, reasonable certainty as a new rule limiting lost profits has spread in the US damage law. Because the lost profits are relevant to future interests not occurred in @@ the plaintiffs’ claim for lost profits are speculative as a matter of law. In that case, even though the damages are reasonably foreseeable at the outset of the contract, whether or not they would occur is still uncertain. There is a likelihood of that occurrence. Thus, we can assume that damages for lost profits are foreseeable, but they are not likely to occur. For example, while foreseeability to lost profits may be easily recognized in the commercial contract between business entities, it is very difficult to prove lost profits damages with reasonable certainty in the future. In this case, the reasonable certainty rule rather than the foreseeability rule plays a leading role in limiting awarding damages for lost profits.
  • 4.

    A Study on the infringement and Remedies in Korean Copyright Act.

    Kye, Seung-Kyoon | 2017, (74) | pp.119~138 | number of Cited : 0
    Abstract
    As in other property rights law areas, it is important that intellectual property rights holders must be protected if intellectual property rights are violate by others. The key to the education of property rights is also considered to be here. The most important remedies for infringement of intellectual property rights are the exercise of infringement claim and compensation for damages. The right to claim for infringement of intellectual property rights is meaningful because it appears to be a modified form of the right of intellectual property right in the civil law according to the contents of the right of intellectual property law, but it is considered to be the same as property right protection means in its essence. In this paper, regarding the requirements relating to the infringement claim will be reviewed the subject-matter, legal nature, such violators. In addition, the copyright law does not have a system of exclusive right, unlike the patent law and the trademark law. Therefore, we can not exercise the right to demand prohibition. And one thing that is sad is that there is not much research on this subject yet. It is considered that research on this field should be continued.
  • 5.

    The responsibility without fault of administration in France

    Jaehyun Park | 2017, (74) | pp.139~163 | number of Cited : 3
    Abstract
    La responsabilité sans faute en droit administratif est une théorie subsidiaire comme en droit privé. Il y a la responsabilité pour risque et la responsabilité sans faute fondée sur l'égalité devant les charges publiques dans la responsabilité sans faute. La responsabilité sans faute est une régime pour les victimes. La jurisprudence montre que un risque spécial de dommage est à justifier aussi pleinement que possible que la réalisation du risque engage la responsablité sans faute. Selon le Conseil d'Etat, s'il y a l'utilisation dommageable par la police d'armes et d'engines comportant des risque exceptionnels pour les personnes et pour les biens, on trouve d'indemniser même en l'absence de faute des personnes publiques. Même si la décision de justice contre l'administration par le juge administratif, il y avait le refus de l'administration pour l'ordre public dans la jurisprudence Couitéas de 1923. la décision de l'administration est légal parce que elle a l'intention pour le maintien de l'ordre public. Ce refus était justifié par la crainte de troubles graves à l'ordre public. Le bénéficiaires de jugements a le droit à réparation même en l'absence de faute de la part de l'administration. le préjudice spécial et anormal du requérant est réparé sur le fondement d'une responsabilité sans faute. Le principe d'égalité devant les charges publiques a valeur constitutionnelle. Le régime de la responsabilité sans faute française donnera nous beaucoup de problème d'actualité.
  • 6.

    A Study on Russian Laws and Practice regarding the Use of Force against Illegal Fishing Foreign Vessels in the EEZ

    Sung, Dae-Hoon | 2017, (74) | pp.165~194 | number of Cited : 1
    Abstract
    In the EEZ of the coastal state, law enforcement officers were killed by violent resistance of illegal foreign fishermen. Also, there have been fatal shooting incidents of fishermen by a firearm of police officers during physical allegations. In particular, there was a case where foreign fishing vessels speed boat boarded coastguard search team of the coastal states was jammed and sunk. After these incidents, the coastal states announced that they would use crew-served weapons, and the flag state made a diplomatic stance that coastal state should stop violent law enforcement. The Convention on the Law of the Sea reaffirms the Charter of the United Nations, while encouraging the peaceful use of the oceans for the establishment of laws and regulations on the oceans. The Convention stipulates refraining from the use of force referred in the Charter, but is silent about the ‘use of force’ that may arise in the course of law enforcement. According to the general principles of international law, international precedents, and national practices regarding the use of force and the right of hot pursuit during the law enforcement of coastal states against alleged illegal foreign vessels. It is not prohibited the use of force in the sea, but should be avoided it possible. When unavoidable, the degree of forcet should not exceed the necessary level, and the dignity of life should be valued. The Russian maritime regulations well reflect the general principles of international law, international norms and practices. However, there is criticism that it is taking excessive measures against illegal foreign ships. It is necessary to revise laws and regulations in accordance with international standards and to improve the enforcement procedures so that both fishermen and enforcement officers do not become casualties.
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