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pISSN : 1225-3405 / eISSN : 2713-5470

2020 KCI Impact Factor : 0.89
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2020, Vol., No.88

  • 1.

    The Source of Civil Law in Chosun Dynasty and Concept of Law - On Behalf of Conceptualization of Civil Law Source in Chosun Dynasty -

    Lee, Young-Lok | 2020, (88) | pp.1~28 | number of Cited : 0
    Abstract
    I tried in this paper to propose the term ‘official’s law’ to conceptualize the source of civil law in Chosun Dynasty, and to explain what characteristics and distinctiveness it had, and how it worked as law. Official’s law meant the law which was living in consciousness of officials as judges, and was found at the moment of, and by judgments in individual cases. It was not law in the strict meaning in which law worked as rules. Nevertheless, it was qualified to be called as law in the broader meaning in that it carried binding force in each case as shared criteria of right and wrong among officials. In that respect, it was different from judge’s ad hoc, or concilliation which based on agreement of both parties. It enabled us to see that the deeper significance of Chosun Civil Ordinance(1912) lied in the change of the conception of law rather than sources of law. It was the radical factor that was at the roots of the ostensible double structure of legal sources, i.e., the coexistence the written law with modern contents, and customary law based on tradition.
  • 2.

    A Study on the Major Contents and Legislative Tasks of the Revised Act on Ownership and Management of Condominium Buildings

    Kim Na Rae | 2020, (88) | pp.29~55 | number of Cited : 0
    Abstract
    The Act on Ownership and Management of Condominium Buildings has been amended several times to enhance the normative effect, since its enactment in 1984, However, whenever disputes arose between the owners, the occupiers and the management team, the management committee, etc, the Act on Ownership and Management of Condominium Buildings has been continuously criticized for not being effective because it cannot be resolved. The revised Act on Ownership and Management of Condominium Buildings, effective from February 5, 2021, is the fruit of efforts to protect the rights of those who own or occupy Condominium buildings and settle disputes between them. The major contents of the amendments are as follows. First, transparency in the management of condominium buildings, Second, efficiency in the management of condominium buildings, Third, prevention of gaps in the management of condominium buildings. By supplementing the above three items, the Act was designed to enhance the effectiveness of it and to provide an alternative plan for efficient management of the increasing number of condominium buildings. However, there are still areas to be improved to address all problems arising from the operation of the Act on Ownership and Management of Condominium Buildings. In order to improve this, it is necessary to supplement the regulations of the relevant office for the management and investigation of a condominium buildings, to newly establish a regulation on the administrative expenses, to ensure that the other party who has received an application for dispute mediation must comply with the request so that the Dispute Mediation Committee can operate effectively, and to obtain consent from all owners of changing of common sector as in case of civil law.
  • 3.

    Measures for claiming damages under the Product Liability Act for Mobile Phones

    Park, Bong-Cheol | 2020, (88) | pp.57~80 | number of Cited : 0
    Abstract
    This article introduces the case of industrial accidents related to mobile phone electromagnetic waves by the Korea Labor Welfare Corporation in 2019. The current product liability law was applied to examine the issues to be tackled in claims for damages related to electromagnetic waves in mobile phones, and to consider specific measures. If a mobile phone manufacturer does not pay attention to the design of a product and absorbs more electromagnetic waves than necessary, it is a design defect. Also, it is a defect in the display if consumers are exposed to the risk of brain tumors by using mobile phones for a long time without proper warnings about electromagnetic waves in mobile phones. Under the product liability law, the victim assumes the burden of proof of relief in accordance with the statutory provisions of the existence and causality of defects. It is necessary to review the punitive damages under the Product Liability Act because terminal manufacturers and mobile communication companies are aware of the risks of a product called a mobile phone electromagnetic waves and are not taking any action or at least have serious errors in not knowing it.
  • 4.

    The problems and suggestions of China's small claims system

    JINMEI-LAN | 2020, (88) | pp.81~101 | number of Cited : 0
    Abstract
    With the characteristics of high efficiency and low cost, small claims system quickly occupies a seat in the trial system of various countries, and is favored by judges and ordinary people. With the increase of civil cases, the burden borne by the court is increasingly heavy, which also increases the litigation cost of the parties.In order to be more effective in the case of “more cases and fewer people”, in 2012, China's civil procedure law revised to establish a new small claims system, and published the relevant judicial interpretation in 2015. However, in judicial practice, we found that there are still many problems in this system, which makes the small claims system fail to play its due role. Although the Supreme People's Court of China issued the “Measures for the pilot implementation of the reform of complicated and simplified civil procedure” division on January 15, 2020, which further improved the small claims system, the measures were only implemented in the pilot areas, the implementation results still need to be examined, and some inherent problems of the small claims system have not been solved. This paper analyzes the current situation of legislation and judicial practice of China's small claims, and puts forward some concrete suggestions on setting up independent small claims procedures, improving the subject amount, relief methods and judicial security.
  • 5.

    Reform and Implications from the UK Stewardship Code

    Hwang, Jung-Mi | 2020, (88) | pp.103~128 | number of Cited : 0
    Abstract
    The Stewardship Code was enacted as a Principle for Responsible Investment, along with accountability for institutional investors who failed to adequately monitor the company's board of directors and management for the cause of the 2008 global financial crisis. In particular, it was introduced in the reflection that domestic institutional investors' engagement was not a desirable direction in situations where corporate owners' family(called by ‘Chaebol’) issues such as shareholders' rights and even losses led to national credibility. Since the establishment of the 「Stewardship Code」, the UK continues its revision, evaluation and certification efforts to maximize its effectiveness. The revision of the 「Stewardship Code 2020」 has great implications for extending the concept of stewardship to EGS, not limiting the target of stewardship to listed stocks, and strengthening the disclosure of institutional investors' stewardship performance reports. In order for the Korean stewardship code, which is still in the early stages of introduction, to have the right direction, it is necessary to closely analyze the policies and cases of the market where the stewardship is already actively being exercised.
  • 6.

    Formation and development of franchise related regulations in Vietnam

    Lee Joonpyo | 2020, (88) | pp.129~147 | number of Cited : 1
    Abstract PDF
    The purpose of this study is to examine the trend of Vietnam's franchise legislation and the main contents of the current Vietnam franchise regulation. In Vietnam, unlike Korea, there is no franchise-related consolidation law. However, the basic law system centered on commercial law is well established. In addition, it not only continuously enacts and revises the enforcement ordinances or enforcement regulations, but also continues to make efforts to develop the franchise industry by easing and eliminating regulations on franchise activities. On the other hand, since Vietnam still chooses to remain a socialistic country, there is a limit to understand the Vietnamese legal system by simply analyzing laws and regulations without understanding Vietnam's unique laws. In addition, after the reform of Doi-Moi, it is undeniable that positive changes, such as decrease in dispute and increase of predictability, can occur in the process of establishing a legal system, but the limits of judicial independence and legal performance remain unsolved. For the continued development of the franchise industry that Vietnam expects, a transparent and accurate legal and institutional foundation must be established beforehand.
  • 7.

    Law and Economics as the Methodology of Administrative Law - Review on the Distribution Industry Development Act through the Coase Theorem -

    Bang,Jung-Mi | 2020, (88) | pp.149~178 | number of Cited : 0
    Abstract
    The administrative environment has been changing in a dynamic manner in the 21st century. Korean administrative legal science can no longer extensively rely on the traditional legal doctrine which is centered on interpreting existing legal texts. In order to sufficiently address the change, there needs to be more effort in analyzing the various administrative actions and embarking on interdisciplinary researches. Ever since the publication of Ronald Coase's “The Problem of Social Cost” in 1960, the field of economic analysis of law has been expanding. While economics deals with the change in human behavior according to cost in general, an economic analysis of law is focused on the relationship between regulations and human behavior. If regulations can be designed in a way that alters individuals to act rationally, then society as a whole can benefit from such regulation scheme. Also economic theories and concepts can help explain why people react in a certain way to regulatory incentives. In essence, an economic analysis of law contributes in formulating objective rules in evaluating and analyzing regulatory policies. In this article I discuss the meaning of regulations from the perspective of economic analysis of law, and review the Distribution Industry Development Act(hereinafter ‘Act’) by applying the Coase Theorem. Before delving into the specifics, several theories affiliated to the economic analysis of law are introduced in order to provide a theoretical background to the review of the Act. After assessing the theories in a normative manner, I examine how the theories can be applied in analyzing the Act.
  • 8.

    A study on the legal protection for in-house subcontracting under the Occupational Safety and Health Act

    Na, Min-oh | 2020, (88) | pp.179~213 | number of Cited : 0
    Abstract
    In-house subcontracting, unlike general contracting contracts, is subject to subcontractor-managed workplace, so there is a limit to the recipient's safety and health measures. The Article 63 of the Occupational Safety and Health Act provided contractors with the obligation to manage and maintain the risks incurred in their workplace. This includes the obligation to implement safety and health measures in areas affecting the workers of the recipient, as well as the workers employed by the contractor. In addition, The Article 66 of the Occupational Safety and Health Act provides contractors with comprehensive management and supervision over the risks arising in the workplace by providing contractors to take corrective action against contractors when the recipients and their workers violate the Occupational Safety and Health Act. The Article 63 and 66 of the Occupational Safety and Health Act makes a duty for contractors to provide safe workplaces to recipients, and to supervise the implementation of the recipient's duty to ensure safety. Therefore, it can be considered that the contractor bears the duty to care for the safety of the recipients. In the study, a method was proposed to reflect the contractor's Obligations of safety consideration to the recipients in the Occupational Safety and Health Act based on the safety care obligations in the contract. In addition, it was reviewed whether the contract's safety-related obligations can be recognized for the workers of recipients who do not have a direct contract relationship with contractors. Workers of recipients have no direct contract relationship with contractors, making it difficult to recognize safety obligations. In line with that, the Article 63 of the Occupational Safety and Health Act does not stipulate that contractors are obliged to provide safety and health measures to workers of recipients. It stipulates that contractors provide safe places for recipients based on their control over their workplace(management ability), and contractors are obliged to oversee the implementation of the recipient’s duty to ensure safety at their workplace. Therefore, the Article 63 of the Occupational Safety and Health Act does not create contractual rights for contractors to request recipients to fulfill their obligations. However, workers of recipients can claim it if damages occur due to illegal acts owing to the contractor's violation of the Occupational Safety and Health Act.
  • 9.

    Legal Issues on Service Subsidies in the WTO and Implications for the Cultural Industries

    HYUNHO KWON | 2020, (88) | pp.215~243 | number of Cited : 0
    Abstract
    This study attempted to review the meaning of international trade law on subsidies being made in the field of cultural industries. However, with no multilateral rules on service subsidies currently in existence, and discussions through the Working Party on GATS’s Rules being blocked, the discussion on service subsidies provided to cultural industries is bound to be limited. Nevertheless, the discussion is meaningful because it is necessary to review problems that may arise when various policies currently supported to the cultural industries are evaluated in accordance with existing trade laws and to prepare policies to reduce the possibility of future conflicts. At this level, this study conducted an overall analysis of service subsidies in Chapter 2, and based on this, Chapter 3 addressed the conformity of international trade law on subsidies related to the cultural industries. Through this analysis, the following points should be noted in the discussion of service subsidies in the cultural industries. First, the multilateral trade law that directly deals with subsidies and various support policies provided to cultural industries do not yet exist, so close consideration is required on whether they fall under the “subsidy” and whether they are “specific” under the premise of applying the current SCM agreement. Second, it is also necessary to consider the improvement of existing SCM agreements as well as the discussion of service subsidies in the WPGR currently being held through the WTO. Finally, it is also necessary to consider discussing service subsidies in bilateral and regional trade agreements that can complement the absence of multilateral rules in the reality that most of the service subsidies are related to cultural industries such as audiovisual services. As such, discipline through bilateral and regional trade agreements will serve as a practical criterion to more directly determine the conformity with international trade law on subsidies and support policies in the cultural industry until multilateral trade laws governing future service subsidies emerge.
  • 10.

    A research on the necessity for telemedicine in the digital healthcare era

    Lee, Joo-Hee | 2020, (88) | pp.245~272 | number of Cited : 0
    Abstract
    Digital healthcare is an industry in which information and communication technology(ICT), including Big Data and AI, and healthcare are converged. Recent outbreak of COVID 19 has increased public interest for telemedicine in digital healthcare industry. With the spread of COVID 19, the Ministry of Health and Welfare of South Korea temporarily allowed remote medical treatment, but the current legal system does not allow telemedicine between a doctor and a patient. This paper will discuss the necessity of allowing telemedicine which became a hot potato due to recent outbreak of COVID 19. First, the paper will discuss the scope and limitation of telemedicine under current medical law. Then, the paper will review the contrasting opinions from the Constitutional Court and the Supreme Court. Finally, the paper will argue to amend the current medical law to allow telemedicine treatment.
  • 11.

    Claiming Convention Priority and Subjective Requirement in PCT Filing

    Chihyun KWON | 2020, (88) | pp.273~299 | number of Cited : 0
    Abstract
    In case where the PCT application is to be filed with claiming convention priority based on the first application, it is interpreted that the priority can be accepted in only a case where the applicant of the earlier application and the applicant of the PCT application which is the subsequent application are identical or the patentable right has been succeeded and the change of the applicant has been recorded when filing the PCT application. However recently the Supreme Court has suggested the new criteria for judgement in that the priority should be accepted in case where the agreement regarding the succession was existed before filing the PCT application although the change of applicant is not recorded when filing the PCT application. It is determined that there is a practical problem in such a criteria for judgement since it is interpreted by dividing Para 1 of Article 55 of the Patent Law regulating the subjective requirement for claiming convention priority and Para 4 of Article 38 of the Patent Law regulating the condition of validity of the right succession. Accordingly the revision is needed to be able to determine whether the priority would be accepted based on the condition of validity regarding to the succession of the patentable right, that is, it is needed to be revised that the validity can be generated in case where the change of applicant should be recorded when filing the subsequent application(PCT application) in the succession of the right in the earlier application having the priority.
  • 12.

    A Legal Study on an Adequate compensation method for Promoting the Employee Invention

    Park Eunyoung | 2020, (88) | pp.301~328 | number of Cited : 0
    Abstract
    Recently, inventions are mainly made in research institutes and enterprises. The employee invention has become the mainstream. However, questions have been raised as to whether the employees who have invented are being compensated adequately. Laws are being reinforced through legislative amendments, but employee claims for inventor compensation are steadily increasing. Promoting the employee invention is a critical task for the national industrial development. For this purpose, it is necessary to solve the problem of the employee invention compensation. A proper compensation to employees is an important issue, but conversely, if the focus is on the compensation, the instability of R&D investment by companies will increase. Therefore, it is more efficient to provide clear standards and detailed examples rather than establish legislative and policy directions in a way that encompasses multiple situations. In addition, while respecting the principle of private autonomy, employers and employees should be able to draft and conclude contracts or work regulations at the same level as possible. In addition, employers should be given the perception that it is advantageous to reward employees with the legitimate compensation for the employee inventions. In view of these points, this paper focuses on establishing legislations and policies that allow to employers adequately compensate the employee inventions based on legislative practices of other countries.