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pISSN : 1225-3405 / eISSN : 2713-5470

2020 KCI Impact Factor : 0.89
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2020, Vol., No.86

  • 1.

    A Study on the Characteristics of Fundamental Rights provisions in the North Korea’s constitution and their changes

    Lee Seung Taek | 2020, (86) | pp.1~37 | number of Cited : 0
    The purpose of this study is to analyze the characteristics of the North Korean Constitution and the fundamental rights provisions established through the Constitution in order to understand the state system of North Korea. At the same time, I tried to identify the cause of the difference between the constitutional system of South and North Korea and provide a clue for narrowing the gap between them. The Constitution of North Korea is the core weapon of the socialist revolution and the highest norm within the legal system. And under the command of the supreme leader and the labor party, it presents the direction of the people’s rights and obligations, the state institutions’ role, and the lower legal norms. In addition, the fundamental rights of North Korean citizens are realized by the principle of collectivism, and are not claims about the state, but realized through the state. And at the same time these rights have an attribute as citizen's duty. These characteristics of North Korea's constitution and fundamental rights come from differences in perceptions of the relationship between politics and law and the relationship between individuals and groups. In order to promote cooperation between the North and South and to establish a permanent peace system, the attempt to understand their perspective, rather than the unilateral assessment about North Korea, must continue in multiple dimensions and ways.
  • 2.

    A Study on the Revision Process of the Child Welfare Act based on the Unconstitutional Employment Limits in Child Related Institutions

    Ha, Yun Su | 2020, (86) | pp.39~71 | number of Cited : 0
    The purpose of this study is to examine the discussion surrounding the need for revision of the employment restriction regulations of child-related institutions under the Child Welfare Act and how the revision was made. To this end, a review was conducted on the unconstitutionality of the employment restriction regulations of child-related institutions under the Child Welfare Act. It also looked at the opinions of lawyers and the judgment of the relevant authorities on whether the punishment under the Criminal Act could be seen as a violation of the employment restriction rules of child-related institutions under the Child Welfare Act. The revision of the regulations on restricting employment of childrelated institutions under the Child Welfare Act is a case of simultaneous changes in the working-level interpretation of the regulations, the Korean Federation of Teachers’ Associations’ revision of the law, the National Assembly’s motion to revise the regulations, and the Constitutional Court’s ruling on the unconstitutionality of the regulations. While the unconstitutionality of restrictions on employment by childrelated institutions under the Child Welfare Act has been resolved, the negative impact on educational activities remains. Accordingly, the government proposed finding improvement points as a future research project.
  • 3.

    A Study on the Reasonable standard for interpretation of intention on termination of the contractual relationship by implied agreement

    SOHN HONG RAK | 2020, (86) | pp.73~105 | number of Cited : 0
    The contract should be kept. But the parties can terminate the contractual relationship by agreement under the principle of private autonomy. The Supreme Court clearly declares that such an agreement can be established in an implied manner. According to multiple the Supreme Court rulings, The following could be the reasonable standard for interpretation of intention or legal act on termination of the contractual relationship by implied agreement ; ① Whether to be commencement of contract execution or not and Whether to be long-term contract neglect or not, ② Whether to be contradiction with maintaining contract effectiveness or not and Whether to be parties' behavior against the contract or not, ③ Whether to be agreement on additional terms and conditions accompanying liquidation of contract or not, ④ Comprehensive consideration of various circumstances after contract concluded.
  • 4.

    Study on Down Payment Contract

    Lee Sung Jin | 2020, (86) | pp.107~132 | number of Cited : 0
    A down payment is any other value of money or other value which is issued from one party to the other when the contract is signed. A down payment contract is an independent contract that is generally concluded for the issue of a down payment, separate from the main contract. Article 565 (1) of the Civil Code provides that: If one of the parties to a contract of sale has delivered, at the time of entering into the contract, money or other things under the name of down payment, assurance deposit, etc. to the other party, unless otherwise agreed upon between the parties, the deliverer by giving up such money, and the receiver by repaying double such money, may rescind such contract before one of the parties has initiated performance of the contract. The down payment may be of any or all of the nature of evidence of contract, penalty, cancellation, advance payment. The agreement of a penalty is presumed to be determined in advance of the amount of damages. Particularly with regard to the nature of the cancellation fee, the down payment is assumed to be a cancellation fee unless the intention of the parties is clear. Article 563 of the Civil Code provides that: A sale shall become effective when one of the parties agrees to transfer a property right to the other party and the other party agrees to pay the purchase-price to the former. The issue of a down payment or an agreement thereon is not essential to the establishment of a sale. The same applies to other typical contracts such as leases, so I think the down payment contract is made on the premise of the existence of the main contract.
  • 5.

    A study on effect of completion of the extinctive prescription

    Hwang tae yoon | 2020, (86) | pp.133~161 | number of Cited : 0
    Article 162 of the Civil Code provides prescribe the extinctive prescription is complete. but it is silent on its effectiveness. Article 167 of the Civil Code provides for retrospective effects, but whether retroactively extinguishes rights(absolute extinction), or if the effect of the completion of extinction prescription is applied, then the rights are retroactively extinguished (relative extinction), The right does not extinguish itself when the appeal is made because the right to appeal the completion of extinction prescription is made against the claim of benefits is not extinguished. Article 145 of the Japanese Civil Code clearly defines the right of invocation, but the Korean Civil Code does not. This paper points out that the relative extinction theory that the right is absolutely extinguished by the use of the right of invocation as the formative right shares the conclusion with the absolute extinction theory. In conclusion, A theory of right of defense is correct among theories about the effect of extinctive prescription
  • 6.

    The Legal Status of Artificial Intelligence in Chinese Private Law

    Qian Xue | Liang Chen | 2020, (86) | pp.163~224 | number of Cited : 0
    With the advent of Artificial Intelligence(AI), Big Data, Cloud Computing, that is call the “ABC era”, the IT industry has come in the era of Artificial Intelligence, which has become the core of the whole intelligence era. The short-term impact of Artificial Intelligence depends on who controls Artificial Intelligence, while the long-term impact is subject to whether Artificial Intelligence can be controlled. Therefore, the application and development of Artificial Intelligence need the definition of legal personality. First, this paper combs the reasons why natural persons and legal persons in the existing civil subject structure are granted civil subject qualifications. Secondly, combined with the characteristics of Artificial Intelligence entity, this paper is analyzed whether Artificial Intelligence should be entitled civil subject qualifications. Finally, it summarizes the new ideas about the construction of subject qualification in foreign private laws and puts forward some suggestions that are in match with the local situation of China.
  • 7.

    Historical Background of International Humanitarian Law: Focusing on the Influence of Chivalry

    Si Jin Oh | 2020, (86) | pp.225~253 | number of Cited : 1
    The current international law system regulates war and the humanitarian spirit as the most important principle. Why did international legal systems restrict and regulate war? There are many ways to answer these fundamental questions. However, this paper attempts to take a historical study of why such a system was created. Taking a historical approach, one cannot overlook the presence of religious factors. Previous studies on the relationship between war and religion also emphasized the Christian theological aspects of Just War Theory. In particular, the main focus of recent studies was on the legitimacy of the beginning of the war, the “jus ad bellum.” However, the study of the religious influence of the “jus in bello” was relatively of little interest. Today war cannot be commenced unless the resolution of the Security Council according to Chapter VII of the UN Charter, or the exercise of self-defense in Article 51 of the Charter. Thus, while there are still legal issues related to the initiation of a war, such as R2P, the scope of international humanitarian law is dominated by jus in bello. Despite this importance, there is a lack of explanation as to why the current international humanitarian law system has become such as this. This paper discusses the principle of proportionality, the principle of differentiation, prisoners of war, and arms prohibitions among the rules and principles within the broader international humanitarian law system. In this article, I will point out that there is chivalry in the relationship between the law of war and religion.
  • 8.

    Limitations and Development Agenda of WTO/SPS Agreement as a Food Safety Regulatory System

    LEE JIN-KYU | 2020, (86) | pp.255~276 | number of Cited : 0
    Food has been a key issue that threatens health and safety in trade and other commerce, and these have consistently caused a lot of anxiety to consumers. These series of cases have led to solidifying the perception that food safety issues should be disciplined at an international level, with the focus of the SPS Agreement. The SPS Agreement, however, faced limitations on the lack of specificity as a public regulatory mechanism for food safety, and a lack of control over emerging private standards arising in the changing food market. Also, this agreement has failed to fundamentally address the difficulties faced by many developing countries as major food exporters as the level of each State's SPS measures has been higher. To overcome these limitations, the SPS Agreement must make up for its shortcomings in a practical way by fully utilizing the advantages of private standards. It is also necessary to build a common framework for supporting national capacity building in developing countries and improving the system of international standards with special reference to the SPS Agreement system.
  • 9.

    Study on the Union's right to organize under the Constitution and the outside-law Labor Union Activities of the Civil servants Union - Comparison of ILO Convention and Japan's guarantee of the right to organize -

    Jung, Phung-Young | 2020, (86) | pp.277~305 | number of Cited : 0
    Article 33 of the Constitution of the Republic of Korea should be regarded as basically guaranteeing basic labor rights for civil servants, and at a time when the Civil servants Union Act is in force, basic labor rights should be guaranteed regardless of whether they are registered or not. It is reasonable to interpret that it is not a collective action against the public interest as the membership and activities of civil servants unions is in accordance with Article 33 of the Constitution and the Labor Union Act, regardless of whether they are registered or not. In conclusion, matters concerning the activities and their guarantees and support of outside-law unions in terms of more faithful basic labor rights under the Constitution should also continue to be explored in depth and in accordance with international labor standards such as the ILO and Japan. It should be noted that labor rights are basic rights under the Constitution of workers, and discussions and legislation should start from this point of view.
  • 10.

    A Case Study on the Standard for the Calculation of Damages to the Copyright regarding Computer Program Works

    Park HyungKyung | 2020, (86) | pp.307~346 | number of Cited : 0
    This case is a ruling on the calculation of damages infringing copyrighted computer program works, and it is noted that the retail price of the program itself is based on the calculation of damages. This is evaluated as a judgment that calculates the damage amount considering the sanction effect on the infringer, deviating from the strict balanced damage theory, and triggered alarm on program piracy practices in the society. This study examines the legal theory of damages calculation in this case through civil law and copyright law, and discusses it’s implications and impact on subsequent cases. First of all, I will examine the meaning of damages in this case and the problem of the method of calculating the amount of damages. First of all, damages in this case are based on normative damages. Damages in intellectual property rights, such as copyright, means loss of market opportunities for the owner, and should be distinguished from the calculation of specific profits. Second, section 125 of the Copyright Act on the calculation of damages should be interpreted in connection with the concept of damages. Therefore, based on the normative concept, it would be desirable for Article 125 of the Act to estimate or agenda arising out of the occurrence of damages. Lastly, I do not think that too much damage calculation does not fit the purpose of the damage system, which is a fair burden of damage. Subsequent rulings after the final ruling seem to show the court's efforts to select the amount of damages in the light of the generally fair burden.
  • 11.

    Study on how to protect deep-learning-related inventions under the Korean Patent Act

    Jun, Yong-Cheul | 2020, (86) | pp.347~378 | number of Cited : 0
    Deep learning is a technology to perform “learning” so that computers can adopt concepts to distinguish objects and the like. Deep-learning technology is characterized in that the structures of learning models for performing “learning” are “deep”. Deep-learning technology is based on neural-network technology in which neural structures and activities that enable human beings to accommodate concepts are grafted onto the computer technology. Recently, neural network technology has been underpinned by theory owning to the increased operational processing capacity of hardware units such as graphics cards, and remarkable performance of deep-learning technology has been exhibited. In order to understand the properties of deep-learning technology, changes in deep-learning technology, major aspects of deep-learning technology, and the claims of patented inventions relating to deep-learning technology are reviewed in this paper. Also, considering the properties of deep-learning technology, cases are divided into cases where deeplearning model structures are changed and cases where conventional deep-learning models are grafted onto deep-learning technology so as to comply with specific objectives. On this basis, how to secure the patentability of deep-learning-related inventions is reviewed in this paper, and how to easily demonstrate patent infringement after the deeplearning- related inventions are patented is also reviewed in practical terms. In the case of deep-learning-related inventions, they may be handled as a kind of computer-related inventions when the patentability requirements thereof are determined in terms of whether the subject matters thereof establishes inventions and they meet inventiveness requirements, etc.. Recently, with respect to the patent eligibility determination of computer-related inventions, important precedents including the Alice Corp. judgment in the United States have drawn attention, and examination guidelines in the United States and Korea have changed accordingly. In this regard, in this paper I review changes in US precedents on patent eligibility determination of computer-related inventions, and then review the Korean Patent Act and patent and utility model examination guidelines, which were revised in March 2019 by the Korean Intellectual Property Office.