DONG-A LAW REVIEW 2022 KCI Impact Factor : 0.68

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2020, Vol., No.89

  • 1.

    A Study on the provisional remedies in the Constitutional Court

    Hyun Jai Kim | 2020, (89) | pp.1~31 | number of Cited : 2
    The petitioner needs an injunction to secure the effectiveness of the original trial and to save the rights in a provisional manner, but the Constitutional Court is silent on other unconstitutional legal trials, impeachment trials, and Constitutional Court rulings over the explicit provisions of provisional disposition only in the judgment of dissolution of political parties and power disputes. However, the injunction is also allowed in other judging procedures. Decision orders vary in order to achieve the purpose of provisional disposition. It is possible to have an injunction to suspend the validity of a problematic disposition, an injunction to seek the suspension of execution or procedures, and an active injunction to determine the temporary status, such as ordering the disposition of non-action or rejection. An independent injunction can be filed before the trial continues, and the Constitutional Court can reject or dismiss the request, but cannot make a quotation decision. In addition, an injunction by the Constitutional Court's authority is useful in the condition that the original bill continues. An immediate appeal against the injunction is not allowed under the single-judge Constitutional Court, but the petitioner's objection to the injunction is allowed in terms of guaranteeing the parties' participation in the process and the cancellation of the injunction is also possible if there is a change in the circumstances, such as the termination of the grounds for the injunction.
  • 2.

    Review on the limitation of the effective scope of land ownership for the use of underground space

    HAN TAE IL | 2020, (89) | pp.31~60 | number of Cited : 1
    As a part of three-dimensional land use to solve the land shortage in large cities, public projects to construct above-ground or underground structures using sectional superficies are in progress. However, still there is the difficulties to acquire the right of using lands. To resolve this, in light of Article 212 of the Civil Act, which limits the effect of land ownership within the scope of legitimate interests, it was reviewed whether it is possible to limit the scope of effect of land ownership collectively for public project. Thus, for underground spaces below a certain depth or air spaces above a certain height, overseas cases that denied the effect of land ownership were examined. As a result, it is thought that the method of making an underground space below the so-called limit depth as public owned land is the most suitable for our situation. To this end, it is desirable to amend the current civil law Article 212 of the'range of legitimate interests' to'the range determined by the law and enforcement decree'. And under the special law, it would be desirable to clarify that the scope of effect of land ownership is limited by the marginal depth, and to establish specific criteria for the marginal depth under the enforcement decree of the same Act.
  • 3.

    Police Utilizing Artificial Intelligence Robots

    Sun Jong Soo | 2020, (89) | pp.62~87 | number of Cited : 2
    Abstract PDF
    The most frequently mentioned word is the 4th Industrial Revolution, and the interest in artificial intelligence is especially hot. Artificial intelligence is often divided into weak and strong artificial intelligence. At the core of this distinction is the autonomy that recognizes, identifies and operates the concept elements of artificial intelligence. The development of science and technology is emerging faster than we can imagine. These advanced technologies are also used in the area of ​​police activity and will be used in various forms in the future. In particular, the emergence of robots equipped with artificial intelligence in police activities will serve as a facilitator of paradigm change. However, the development of science and technology has positive aspects such as giving abundance and convenience to our lives, but it is like a double-edged sword where negative aspects coexist at the same time, such as harming us through misuse or malfunction of technology. The science and technology in which positive and negative coexist will develop more than the present, and will affect society as a whole. As a result, it is important to find a way to remove the problem with proactive measures before it becomes a social problem. The police exist to maintain the well-being and order of the people, and accordingly, they play a role in various fields. In particular, they can be seen as acting mainly on the big axis of crime prevention and crime investigation. According to the social change, there are various devices that can be used in the case of the police, and the development of more advanced devices will help police activities in the future. So far, the robot police have remained at a level equipped with functions as a software device, and its role is not only limited, but also considered to be for display effects. However, in the future, it is judged that the application of artificial intelligence robots in the police area will be realized. Therefore, the discussion on the scope of utilization should start from now on, and alternatives to various problems that may arise from this should also be presented.
  • 4.

    Some Problems with Assaults on Emergency Medical Workers

    Taesoo Kim | 2020, (89) | pp.89~112 | number of Cited : 0
    Accidents in the emergency room are often reported in the media. In particular, the government revised the Emergency Medical Service Act in 2019 on the back of public opinion that violence against medical personnel should be severely punished for accidents in emergency rooms as well as medical personnel. However, emergency medical law has the following problems: First of all, the Emergency Medical Law protects the right to care for emergency medical workers and emergency patients, so it is also necessary to protect emergency patients. Second, the Emergency Medical Service Act severely punishes only those responsible for the consequences of violence as a basic crime. However, it is necessary to establish a criminal who committed a consequential aggravated crime in injury or injury because the scope of punishment is low despite the high illegality. In addition, the statutory penalty should be defined as the same statutory penalty as the result of the assault. Third, the Emergency Medical Law is intended to protect appropriate emergency medical practices for emergency patients. However, as emergency rooms are limited to emergency rooms, emergency medical law cannot be applied in cases outside the emergency room, and emergency medical personnel outside the emergency room are not protected. Therefore, emergency patients should be defined instead of emergency rooms. Fourth, although the Emergency Medical Law stipulates that the application of Article 10 paragraph 1 of the Criminal Law can be excluded, it is necessary to delete it because there is no justification or theoretical basis to be excluded. Fifth, the Emergency Medical Law is a special law of the Medical Law and it is necessary to protect more emergency medical workers for emergency medical practice for emergency patients. Since the emergency medical law provides a serious punishment, it is necessary to lower the punishment regulations under the medical law.
  • 5.

    Study of No-Fault Liability in the Common law System: Focusing on the Rule of Absolute Liability in India

    Choung, Young-Hwan | 2020, (89) | pp.113~138 | number of Cited : 2
    According to the New Southern Policy, the volume of trade between Korea and India was increased. However, Korean, especially related businessmen, do not have a deep understanding to India’s legal and economic circumstances. In May 2020, LG Chemical was involved a gas leakage accident in India caused at least 13 deaths. In India, there are a strong opinion to apply the rule of Absolute Liability into the gas leakage accident caused by LG Chemical. Based on Bhopal gas leakage accident, this disaster resulted in the death of at least 3700 death and serious injuries. In M.C. Mehta v. Union of India, the India Supreme Court developed the Absolute Liability theory even though the India judiciary have adopted the rule of Strict Liability originally came from U.K. The India Supreme Court evolved the rule of Absolute Liability because the rule Strict Liability from Rylands v. Fletcher came from the 19th Century and it could not be applicable in a totally different kind of economy of India. The Indian judiciary devolve that an enterprise should be absolutely liable for a potential threat to the health and safety of the persons who work or reside around it that is engaged in a hazardous or inherently dangerous industry poses. However, some criticized that the rule of Absolute Liability does not provide a clear and definite terms of ‘hazardous or inherently dangerous activity’ even though the rule of Strict Liability provides the elements and exception as defenses.
  • 6.

    Exploitative abuse by buyer power under the Korean competition law

    JUNG JUMI | 2020, (89) | pp.139~164 | number of Cited : 3
    Under the Korean competition law, there are few cases of prohibiting exploitative abuse by buyer power. In addition, it is difficult to prove the illegality of the abuse. However, dominant company which has buyer power is able to exploit the interest of trading partners and reduce the incentives of innovation of suppliers, consequently harming the consumer welfare. Furthermore as the buyer power enhances its market power, competition in the market shall be prohibited or restricted. The regulation of the exploitation of buyer power in the distribution market or online platform market should be increased. I critically review the Korean competition law and enforcement decree are not suitable to regulate buyer power. Secondly it is not appropriate to require to prove the intention of exploitation, citing Posco case. Lastly, comparative market methodology should be mostly used to determine the illegality of buyer power.
  • 7.

    A Preliminary Study on the Four-stage Strategy of Judicial Application of Blockchain in China

    Zhang Guangjun , Xinyun Hu | 2020, (89) | pp.165~208 | number of Cited : 0
    Blockchain is in essence a distributed account book technology, which makes mutual trust among individuals unnecessary via the joint bookkeeping of all participating nodes. Since the Blockchain technology is anti-tampering, traceable, and has the timestamp, there is a promising prospect for its application to the judicial field. This has turned Blockchain into a hotspot issue of China's judicial reform. However, due to an ambiguous understanding of the development stage and strategies of the judicial application of Blockchain, there lacks an overall direction for such application. This necessitates the exploration of the development strategies for the judicial application of Blockchain in China. The application and development of Blockchain in China's judicial practice is supported by solid technical foundation, rather than pure theoretical fantasy. In order to solve the problems of unclear strategic stage and unclear strategic focus in the development of China's Blockchain judicial application, this paper starts with the technical characteristics of Blockchain, combines with the development trend of Blockchain, existing practice and the ultimate goal of judicial application, to propose the four-stage development strategy for the judicial application of Blockchain in China. The four development stages include the Blockchain evidence collection and storage, data governance innovation, device and program interconnection, and legal coding. Concerning the characteristics of the four-stage development strategy for judicial application of Blockchain in China, this paper proposes the implementation focuses for different strategic stages at an attempt to draw the academic circles’ attention to this research issue. For judicial practice, this paper points out the ultimate direction and stage goal for the judicial application of China's blockchain to a certain extent, so that the judicial organs can have a definite target in the process of applying Blockchain to solve disputes, so as to effectively improve judicial efficiency and promote judicial justice, and at the same time, it also opens up a new way to promote social governance innovation and enhance social governance efficiency. This study may have certain theoretical reference value for China and other countries to promote judicial reform with the help of Blockchain.
  • 8.

    Expansion Phenomena of Online Service Providers' Responsibilities and Discussion for effective Limit Setting - Focusing on Online Plattform Service Provider -

    Yoo yongseok , Shin-Uk Park | 2020, (89) | pp.209~236 | number of Cited : 11
    With the development of communication technology, copyright infringement and various crimes are increasing on the Internet. Accordingly, the responsibilities of online service providers (OSP) are continuously expanding, which can be confirmed not only through Change of law but also through Change of precedent. However, due to these changes, discrimination may occur not only between domestic and foreign companies, but also between domestic companies. In addition, concerns about human rights violations caused by OSPs such as private censorship and restrictions on freedom of expression are raised. In this paper, we argued that the changes that impose responsibility on the OSP are not appropriate. To support these opinion, first of all, the expansion phenomena of OSP's Responsibilities in laws, precedent etc., especially Prager University v. Google LLC, was confirmed. The discussion was concluded with a proposal for effective Limit Setting.
  • 9.

    The Meaning of 'Development Projects' in Article 42(4) of the Inheritance and Gift Tax Act - Seoul High Court on December 12, 2018. Sentencing 2017 Nu 86721 -

    Joo, Seung-Yeon | 2020, (89) | pp.237~258 | number of Cited : 1
    Article 42(4) of the old Inheritance and Gift Tax Act stipulates “development projects” as one of the reasons for the increase in property value as a basis for the disposition of gift tax on the increase in property value from the contribution of others. The court considered the “development project” as stipulated in Article 42(4) of the old Inheritance and Gift Tax Act in the same sense as the “development project” under the Development Profit Recovery Act. The establishment of a petrochemical plant in China is not a development project under the Development Profit Recovery Act. As a result the plaintiffs were not subject to the application of Article 42(4) even if their property value was increased. So, The court ruled that the imposition of a gift tax on the plaintiffs was illegal. The purpose of the Development Profit Recovery Actand the Inheritance and Gift Taxes are different. The development projects referred to in Article 42(4) of the Inheritance and Gift Tax are not limited to land development projects. The reason for the increase in property value is an example regulation and may be similar. Article 42(4) 2 may also apply to the establishment of a plant in this case. We look forward to the Supreme Court's concrete judgment.
  • 10.

    A Review on Dual Attribution of Internationally Wrongful Acts

    Kim Sung Won | 2020, (89) | pp.259~286 | number of Cited : 0
    The expanding role of international organizations would be marked as the vivid icon of current international law. The active involvement of international organizations in world affairs entails the issue of responsibility of international organization with regard to internationally wrongful acts by international organizations. As a independent international legal person, a member State of international organizations is not responsible for internationally wrongful acts, which is performed by international organizations that a member State belongs to. However, there is very complex and difficult situation that needs the application of dual attribution of internationally wrongful acts. Despite the DARIO provides some situations give rise to dual attribution, judicial bodies including international judicial bodies and domestic judicial bodies do not show a harmonized attitude towards dual attribution. This is mainly owed to scarcity of relevant legal cases dealing with dual attribution issues and to inchoate nature of primary rule on the responsibility of international organizations. However, for the purpose of fostering legal regime for the third party suffered from internationally wrongful acts of international organizations, the advocacy of dual attribution imposing responsibility upon international organizations and a member State should be taken seriously. Also, this perspective would fostering the independence of international organizations from the influence of a member State making a overwhelming impact on international organizations. It would be interesting to explore the way that dual attribution shapes its figure in the field of international responsibility regime.
  • 11.

    The Expanding the scope of Labor through the Introduction of Participation Income

    Han, Kwon-Tak | 2020, (89) | pp.287~316 | number of Cited : 2
    The emergence of new types of labor, such as workers in special employment types and platform labor, and the increase in the elderly population, the problems of elderly poverty, triggered by Korea's unique demographic structure, and youth unemployment are causing cracks in the income guarantee system based on existing labor. And recent innovations in the industrial sector, represented by artificial intelligence and robots, are expected to significantly reduce human labor beyond creating a new word for the Fourth Industrial Revolution. Considering the fact that the contents of labor can be changed according to social and economic circumstances and discussions on basic income are more active than ever in the wake of the recent Korona crisis, it is necessary to introduce participation income as a transitional form of basic income to overcome the crisis caused by the recent cracks in labor and to expand the scope of labor to prepare a new income guarantee system. Based on this awareness of the problem, this paper defined volunteer activities, taking vocational training or related education, care for the disabled, and agricultural activities as ‘participation labor’ and considered including them in the concept of labor and paying participation income. This would result in labor being made up of conventional subordinated labor and participation labor, allowing more people to earn income by participating in the work and live a stable life based on it.