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2018, Vol., No.81

  • 1.

    Problems and consequent improvements to the current policy of guardianship for minors deprived of parental care - focusing on the problem of professional guardianship -

    Lee, Sang-Hee | 2018, (81) | pp.1~24 | number of Cited : 6
    Guardianship for minors deprived of parental care is “a supplement and extension of parental care”, which, supposedly, prevents any vacuum in protection that may occur when minors, who need nurturing and care from parents, do not receive such care, as well as fulfilling the function of promoting healthy growth of such children. However, the current policy is not ensuring that these responsibilities are being fulfilled. In the process of selecting a guardian, the Family Court may decide to assign the role of a “professional guardian” to a third party, such as a lawyer, legal staff, or social worker. In such cases, its institutional and practical limitations can lead to many problems, from the perspective of protection. First of all, the current civil law limits the number of guardians to one, meaning that one guardian must be solely responsible for the safeguarding of the minor as well as the management of their assets, which becomes a burden. Professional guardians, especially, are specialized in certain fields - lawyers and legal staff in the legal fields, and social workers in the field of social work - and therefore, are less likely to act as professionally in other fields. In addition, the professional guardian often do not reside with the minor, and may find it difficult to fulfill the role of safeguarding and education, as outlined in the current civil law. In this case, the professional guardian will start get concerned about their sphere of responsibility, such as the minimum amount of nurture required to fulfill his/her responsibility as a guardian in a situation where the minor in question is not living with him/her. Currently, no education program or manual is in place to offer guidelines in such times of dilemma. In addition, the cost of guardianship is paid from the minor’s asset, meaning that in the case where the minor in question does not have enough asset to fund these costs, the professional guardian has to pay for those himself/herself. From a practical point of view, this limits the possibility of quality safeguarding and protection. As an improvement, the Family Court must select a guardian after taking into account the minor’s age, maturity and the situation the minor is currently in. For example, if the minor has a lot of asset or has the possibility of being involved in legal conflicts in relation to this, his/her professional guardian should be a legal professional. On the other hand, if his/her safeguarding is deemed more important than asset management, a social worker should be assigned the role of the professional guardian. Also, it is imperative that a systemic educational system for professional guardians is put in place. The government needs to create a guideline or a manual for professional guardians to clearly define what the role of a guardian entails and provide continuous education on such, in order to fill any gaps that may occur as the professional guardian fulfills his/her role. In addition to this, many minors who require guardianship are without family or friends, and thus do not possess the ability to pay for the costs of their guardianships. To address this, the government must expand “public guardianship” so that such minors can have access to financial support when receiving the guardianship that they need and are entitled to. Ultimately, what is needed is an amendment of the civil law; so that multiple guardians and corporate guardians are allowed. This will allow any vacuum in minor protection to be filled, as well as making a more comprehensive safeguarding possible.
  • 2.

    A Study on real estate ownership of the debtor recovered by the exercise of creditor’s revocation(actio pauliana) and creditor's right to cancel ownership registration

    Hwang tae yoon | 2018, (81) | pp.25~58 | number of Cited : 2
    The Supreme Court changed its existing judgement in substance on March 9st 2017 by the sentence 2015DA217980 Judgement. The effect of revocation is only relatively effective in the relationship between a creditor and a beneficiary. It does not affect the legal relationship between a debtor and the beneficiary. Even if the real estate sales contract between the debtor and the beneficiary is canceled by the obligee’s right of revocation and the recovery of the original status by cancellation of the beneficiary’s registration, the real estate is treated as the debtor’s liable property between the creditor and the beneficiary under 407 of the Civil Act. However, the debtor does not acquire property directly and become a right holder. According to the relative validity of the case, if the registration of transfer of ownership of the beneficiary name is canceled, the debtor is restored to the full owner. The Supreme Court has virtually created new rights. In the extension of the existing attitude of the Supreme Court, The 2015DA217980 Judgement can be understood. It is necessary to get rid of the stubborn interpreting theory of Numerus Clausus Der Sachenrechte. And unless the act of disposition for the obligor’s property of which original status is restituted fulfills the necessary conditions specified in Article 406, it is considered that the obligee, etc. who applied for revocation has no claim for cancellation of registration against a third party according to Article 406. But the 2015DA217980 Judgement state the obligort acquire a certain right for the revoked property of the obligor directly. In my opinion, All rights should be protected by a prohibition claim(Injunction). The 2015DA217980 Judgement can be understood.
  • 3.

    An Interpretivist Approach to International Law

    Jungwon Park | 2018, (81) | pp.59~86 | number of Cited : 0
    Despite the intellectual profoundness of interpretivism with respect to the nature of law, the potential of its application to international law has not received much attention. This article is concerned with the possibility of broadening the academic horizon in the field of international law through interpretivism. The concept of interpretivism was developed by the great legal philosopher Ronald Dworkin, whose posthumously published article “A new philosophy for international law” has triggered much impetus towards the understanding of international law through an interpretivist approach. Whereas his previous treatment of interpretivism focused on domestic law, the concept is also clearly relevant to international law. Given the core onus of interpretivism, which requires all participants in law practices to provide their best arguments to justify existing law practices in question, interpretivism should be equally applicable to international law practices. In other words, the interpretivist approach makes it possible to overcome the limitations of theories derived from legal positivism and natural law, thereby creating a better understanding of the nature of international law. Indeed, interpretivism, in which the concept of law is understood as an ‘interpretive’ rather than a ‘criterial’ concept, is especially relevant to the proper understanding of international law practice, which has been a controversial subject among international actors. In spite of the differences between domestic and international societies, constant dialogues and debates employing potentially best arguments and rebuttals are necessary for the purpose of justifying the maintenance or change of law practices in both contexts. In the case of states, this process facilitates the establishment of consensus in a global community. However, it is also true that interpretivist accounts of international law have been criticized by many international law scholars. There are two principal criticisms levelled at the interpretivist approach to international law: the first, advanced by legal positivists, is that interpretivism is nothing more than extremely subjective moralism. The second is that the interpretivist approach is irrelevant to international law, because interpretivism was only meant to be focused on the domestic law community, rather than international society. These criticisms, however, seem groundless and unconvincing. Beyond the importance of two fundamental principles in international society—mitigation and salience (both proposed for the first time in Dworkin’s aforementioned article)—the fact that international law itself is an inherently interpretive concept makes the interpretivist approach necessary and relevant to international law. The interpretivist approach to international law will be more concretized and developed through detailed analyses of diverse international issues overtime.
  • 4.

    A Historical Review on the Territory, Frontier and Territorial Sovereignty

    Kim Sung Won | 2018, (81) | pp.87~116 | number of Cited : 0
    As a geographical space where sovereignty of state is substantially performed, territory has the huge implication for the state-centered international relations. Major territorial disputes concerning the demarcation of boundaries between states reflect the importance of territory in international relations. Today, territorial borders between states are clearly drawn in the linear form. Territorial borders play a pivotal role in determining the scope of jurisdictions of states. Considering the history of international law is closely intertwined with the emergence of the state system, the impact of the state system upon the border and frontier has the significant implication. As noted earlier, territorial borders which are drawn in the linear form go hand in hand with the development of the state system. In this context, a critical question might be raised with regard to territorial borders between states. What do territorial borders look like before the emergence of the state system? A thorough exploration of territorial borders that existed before the state system brings fresh air into the thought on the settlement of territorial disputes. Put it differently, the examination of the history of territorial borders raises a critical question to the argument based on ancient maps, which are comprehensively used for territorial disputes. For example, if boundary lines between states contained in ancient maps do not reflect today's territorial borders between states, the evidential power of ancient maps turns out to be very limited. The clear demarcation of territorial borders of states begins with the emergence of the state system. In fact, prior to the pre-state system, such as the feudal system, the concept of territorial borders or frontiers was not solid one. Due to the multiple, overlapping and complex structure of jurisdiction during the feudal system, the map made in that period does not make a huge contribution to fortifying the argument that certain part of territory always belonged to certain state. In this sense, a research about the borders, frontiers and territorial borders in times of medieval ages help the understanding the relationship between states and border, frontier and territorial border. Moreover, a research on the different types of border, frontier and territorial border takes side with the critique towards the exclusive approach to territory that does not reflect the realities at the age of globalization. Taking a flexible approach to the concept of territory, it makes a great contribution to comprehensive understanding the de-territorial movement which is strongly pushed by the advent of globalization.
  • 5.

    The industrial availability and the scope of protection of medical use invention

    Choi, Sang Pil | 2018, (81) | pp.117~142 | number of Cited : 1
    There are conflicting views on the patentability of Dosage Regimen and Dose. In cases where the patentability of an existing invention has a significant effect over the medicinal use, the position of recognizing its patentability is based on the need for legal protection of capital, manpower and time invested to invent new uses for medicine, etc. In contrast, there is nothing technically new about the development of Dosage Regimen and Dose, which is implemented by doctors or pharmacists through practice of medical and preparation, and it’s position that if the object is not implemented by the object invention of this method. The present text consists of analyzing the Supreme Court's position based on both views and presenting legislative improvements along with the adequacy of the application in the case.
  • 6.

    A study on the acquisition of discrimination as a trademark registration requirement of a conspicuous geographical name

    Jung, Yoon-Kyoung | 2018, (81) | pp.143~176 | number of Cited : 0
    Subparagraph 4, Clause 1, Article 33 of the Trademark Law specifies “a trademark consisting solely of a conspicuous geographic name, the abbreviation thereof, or a map” as one of the causes for which no trademark is registered. This is because it is difficult for a geographic name well known among people to be recognized as a source of specific products or services. However, well-known geographical terms cannot always be used as a trademark. For example, we can often see the cases in which such are used as sources of specific products or services around us, such as “Seoul Milk”, “Seorak Mountain Water” and “Yongpyong Ski.” Nevertheless, it is not easy to judge the case in which a geogra phical name, the abbreviation thereof or a map, or a mark that includes this can be protected as a trademark. In the case of “Sariwon,” the court ruled that the name could be protected as a well-known geographical term while in the case of “Olleh Soju,” it judged that it could not be treated as a well-known geographical term. On the other hand, in the cases of “Kyungnam University” and “Seoul National University,” it ruled that the words, “Kyungnam” and “Seoul” respectively form new distinctiveness or concept, combined with the general name, “university”. In numerous cases, it is noted that whether a mark consisting solely of a conspicuous geographical name, the abbreviation thereof or a map, or a mark that includes this can be registered as a trademark is a legal issue. Recently, in June 2018, the Korean Supreme Court judged that although ‘America’ is just a geographical name, its trademark registration would be possible since it came to have new distinctiveness or concept as it was used in combination with “University.” However, on the detailed issues such as the scope of the application of this article or a standard of judgment on the formation of distinctiveness, majority opinion and separate opinion developed different legal logic, which attracts attention. This study investigated the scope of the application of Subparagraph 4, Clause 1, Article 33 of the Trademark Law, a standard of judgment of new distinctiveness or concept and the issue of application concerning other legal provisions such as Clause 2, Article 33 and Clause 1, Article 90, focusing on the case of “American University.”
  • 7.

    A Legal Study on Introduction of Psychiatric Part in Worker Medical Examination - Focused on Health Screening of ‘Emotional Laborer’ -

    Son Mi Joung | 2018, (81) | pp.177~206 | number of Cited : 3
    Abstract PDF
    The problem of protection for emotional laborer has a very important constitutional meaning in terms of guaranteeing workers' rights of health. In spite of the debate on emotional labor has already been continued on the increase in the number of workers engaged in the service industry, there is not enough legal study. The employer's obligations to protect workers in the five regulations of the financial industry in 2016 and the Occupational Safety and Health Act of 2018 have positive implications for the protection of emotional laborers in the workplace. However, in the reality that its effectiveness is not properly examined, it is questioned how this protection regulation will contribute to the protection of emotional labor workers. Therefore, it is necessary to examine how to protect the emotional laborer through the health checkup system, which has been introduced as an all-round guarantee system for rights of health. In short, the most reasonable measure under the current health examination system is the addition of a mental examination item in the general health examination in the Occupational Safety and Health Act, so It is considered to be realized the mental health of the ‘worker’ professionally in the area of labor law.
  • 8.

    The Main Contents and Implication of Precision Medicine-Related law in Japan

    Lee Ki-Ho | Kim, Kye-Hyun | 2018, (81) | pp.207~230 | number of Cited : 2
    Precision medicine is one such trend that commands ever-increasing attention. However, the emergence of genomic research and precision medicine poses various ethical, legal, and social problems. Major countries have engaged in social discussions over an extensive period of time with the aim of establishing legal systems that seek to promote genomic research and precision medicine while ensuring an appropriate level of protection for personal information. This article aims to analyze the issues that may arise from the handling of personal information in precision medicine research and to suggest policy directions for precision medicine in Korea. To do this, we reviewed the main contents of Japan's Next Generation Medical Based Law. Korea will be taking its time and engaging in adequate, long-term social discussions in order to facilitate its efforts to establish a legal system that can promote the development of genomic research and precision medicine.
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