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2013, Vol.1, No.1

  • 1.

    Analyse über die Rechtsprechungen im Bezug auf Anamnese in der Kfz-Versicherung-Praxis

    Eun-Gyoung Park | 2013, 1(1) | pp.7~26 | number of Cited : 0
    Abstract
    In der Praxis wurde bereits vielfach diskutiert, ob der Schädiger alles bezahlen, wenn der Verkehrsopfer mit dem Verkehrsunfall schon aufgrund einer unzureichenden Anamnese Schäden erweitert. Im Jahr 2004 wurde Klausel über die Aufrechnung mit dem Mitverschulden des Geschädigten aufgrund der Vorerkrankungen im AVB der Kfz-Versicherung eingeführt. Unter diesen Umständen stellt es sich die Frage, wie man den Mitverschulden des Geschädigten beim Verkehrsunfall feststellen kann. In dieser Studie wurde zunächst die Rechtsprechungen des Obersten Gerichtshofs analysiert. Mit dieser systematischer Analyse stellen Richtlinien für den Umfang des Leistung vom Versicherer zur Verfügung. Damit kann man die Bedeutung der Klauseln über die Aufrechnung mit dem Mitverschulden des Geschädigten aufgrund einer Anamnese im AVB der Kfz-Versicherung und Fragen beantworten, die bei der Anwendung iherer Klauseln berücksichtigt werden müssen. In den meisten Fällen gibt es keine spezifische Erklärung über den Mitverschulden des Geschädigten aufgrund einer Anamnese, obwohl mehr als 50% auf verschiedenen Umfang sehr hoch bestimmt werden. Auch es bezweiflet, dass es große bei Sachverständigengutachten durch Klinik und Arzt vorgeschriebenen Abweichungen besteht. Abschließend lässt sich sagen, dass die Unfallopfer im Hinblick auf Kriterien des Obersten Gerichtshofs bei der Anwendung von AVB nicht behindert werden muss.
  • 2.

    Analyse über die Rechtsprechungen im Bezug auf Anamnese in der Kfz-Versicherung-Praxis

    Eun Kyung Kim | 2013, 1(1) | pp.7~26 | number of Cited : 0
    Abstract
    In der Praxis wurde bereits vielfach diskutiert, ob der Schädiger alles bezahlen, wenn der Verkehrsopfer mit dem Verkehrsunfall schon aufgrund einer unzureichenden Anamnese Schäden erweitert. Im Jahr 2004 wurde Klausel über die Aufrechnung mit dem Mitverschulden des Geschädigten aufgrund der Vorerkrankungen im AVB der Kfz-Versicherung eingeführt. Unter diesen Umständen stellt es sich die Frage, wie man den Mitverschulden des Geschädigten beim Verkehrsunfall feststellen kann. In dieser Studie wurde zunächst die Rechtsprechungen des Obersten Gerichtshofs analysiert. Mit dieser systematischer Analyse stellen Richtlinien für den Umfang des Leistung vom Versicherer zur Verfügung. Damit kann man die Bedeutung der Klauseln über die Aufrechnung mit dem Mitverschulden des Geschädigten aufgrund einer Anamnese im AVB der Kfz-Versicherung und Fragen beantworten, die bei der Anwendung iherer Klauseln berücksichtigt werden müssen. In den meisten Fällen gibt es keine spezifische Erklärung über den Mitverschulden des Geschädigten aufgrund einer Anamnese, obwohl mehr als 50% auf verschiedenen Umfang sehr hoch bestimmt werden. Auch es bezweiflet, dass es große bei Sachverständigengutachten durch Klinik und Arzt vorgeschriebenen Abweichungen besteht. Abschließend lässt sich sagen, dass die Unfallopfer im Hinblick auf Kriterien des Obersten Gerichtshofs bei der Anwendung von AVB nicht behindert werden muss.
  • 3.

    Study on Plan for Legislation of Paralegal in Korea

    Kwangdong Park | 2013, 1(1) | pp.27~50 | number of Cited : 0
    Abstract
    Recently Korean legal service market faces revolutionary change. In connection with such change, it is necessary to be concerned with a paralegal. It seems that the paralegal has some degree of professionalism, a scope of discretion, ethicality, talented person's collectivity, internationality and a function of a hub between an individually legally qualified expert and a client. The paralegal may be classified into a broad sense of paralegal including a person, which helps the legal works of legal professionals and relevant institutions with some qualifications in a legally-related field or handles legally-relating works, as well as a clerical workers as prescribed in any individual qualification laws, such as the Patent Attorney Act, including a narrow sense of paralegal, which is centralized with some law office workers, and a narrow sense of paralegal, which is subject to the Attorney-at-Law Act. Currently, the regulation over the law office workers holds a central position with regard to the paralegal (a narrow sense of paralegal). However, it is necessary to consider the expansion of the set-up of its scope and the division or individualization of the Attorney-at-Law Act and other laws & regulations relating to such expansion. For the sake of legislation of such paralegal, it is currently required to make an effort for the changeover of national legal consciousness about the necessity of legislation for the purpose of granting an independent position to the paralegal. In view of a legislation method in accordance with the scope of the paralegal based on the formation of national sympathy on the necessity of legislation for the paralegal, it may be considered to enact the separation of the Paralegal Act from the Attorney-at-Law Act through the law division with regard to the narrow sense of paralegal after passing preferentially through the legislative evaluation phase about the Attorney-at-Law Act. Then, as the method to regulate the broad sense of paralegal, it may be considered to make it set up the scope of certain basis·ideology·principle for the paralegal, which is prescribed or will be newly created in other applicable laws & regulations, by enacting its fundamental laws.
  • 4.

    Research about U.S. Energy efficiency regulation and its problems and suggestions

    lee jae sam | 2013, 1(1) | pp.51~90 | number of Cited : 1
    Abstract
    The following measures and efforts are required as an increase in energy consumption and Co2 emission in U.S has been a critical problem in the current era. First, operate energy efficiency. Fundamentally, efforts regarding decrease in Co2(Carbon dioxide) emission by improving energy consumption system improving energy efficiency and exchanging fuel Especially using energy reducing devices in the country’s main energy-consuming products and social facilities will lead to decrease in energy spending. These reducing devices and facilities will play a pivotal role in the practice of lower Co2 emission. Second, Energy efficiency policies and new and renewable energy development is required. In order to increase energy efficiency, not only developing energy reducing technology on electronic goods, facility, and IT is required, but also enforcing energy efficiency standards is necessary. Also, the current development in new and renewable energy is very crucial. Third, vitalize the energy market. In order to make energy efficiency, we need to energize the demanding market as much as saving energy. Thorough understanding and cooperation among energy consumers, enterprises, and the government is necessary. Forth, the usage of information regarding energy should be expanded. We need the energy consumers to provide their energy consuming data and have them make access to information on energy usage. Government and corporations should provide consumers with online energy consumption data by a single click and motivate their use of data in every way. Fifth, Energy labeling should be activated. Consumers must obtain an a elevated understanding to energy labeling and the policies need to gain public trust. Energy labeling is used for the purpose of saving energy in many different organizations, parties, and corporations in an international and national perspective, therefor its unity and strictness must be maintained. Sixth, energy policies must be activated. We need to strengthen energy efficiency certifying policy which is the main policy in energy political measures. This policy is legal・political energy saving policy, therefor volunteer participation from the government, businesses, and the people are required. Seventh, technological innovation in energy saving policy is required. In order to solve critical energy issue, scientific・technological development is demanded. The government need to support regulations, tax deductions, volunteer programs, subsidy and informative campaigns in order to build a technological market that meets the nation’s policy goals. Legal・political considerations regarding the U.S energy efficiency regulation and its problems and current policies have been described as above, and in order to solve the current critical energy issue, diverse energy saving measures and development in new and renewable energy are mandatorily required. These efforts are expected to relieve the current energy crisis in earth and also prevent global warming as well. As a result, we would need to acknowledge the severe energy crisis on earth and maintain a sustainable energy environment by saving energy at all time, and live in a clean, unpolluted environment by putting specific effort to prevent any further environmental pollution on earth. Therefore legal・political measures and efforts must be implemented in a near time, In order to actively realize the above articles.
  • 5.

    Issues of the Rights of Secured Claim on the Movable Property and Secured Claim Act

    HyeonSon, Kim | 2013, 1(1) | pp.91~131 | number of Cited : 1
    Abstract
    Generally, a secured transaction is a loan or a credit transaction in which the lender acquires a security interest in collateral owned by the borrower and is entitled to foreclose on or repossess the collateral in the event of the borrower’s default. A security interest is typically granted by a “security agreement.” The security interest is established with respect to the property, if the debtor has an ownership interest in the property and the holder of the security interest conferred value to the debtor, such as giving a loan. Perfection is typically achieved by filing a financing statement with judicial government located at a jurisdiction where a corporate debtor is incorporated. Perfection can also be obtained by possession of the collateral, if the collateral is tangible property. Absent perfection, the holder of the security interest may have difficulty enforcing his rights in the collateral with regard to third parties and other creditors who claim a security interest in the same collateral. Currently, in Korea, in accordance with developed countries legislative trends, the Movable Property & Secured Claim Act is introduced to provide the medium-sized firm’s convenience of corporate business activity such as fund raising using movable property and claims for the securing the suitability and effectiveness. However, it may not be evaluated the legislation is prepared to help harmonious using the system with Korea’s circumstances and modern financing transactions. Because there are clauses scattered out of the main reason for the using security system of the claims and movable property and international trend. In other words, the act restrict the business entity which aims using the system and the object of the application that result in restrain the use of asset value in the credit transactions. In addition, even though the secured claim is collateral right but it is separately regulating the requirement of counteraction against third party and third-party debtor, there are unexpected damages occurred in the priority secured claim-holder by the third-party creditor payment to the subordinates. Therefore, it is clearly desire to establish expected priority rule and to make balance interest among the interest-holders. Security interests may be taken on any type of property. The law divides property into two classes: personal property and real property. Personal property is defined as any property other than real property. Here, the latter is subject to the discussion in this article. A security interest is a property interest created by agreement or by operation of law over assets to secure the performance of an obligation, usually the payment of a debt. A security interest grants the holder a right to take a remedial action with respect to the property, upon occurrence of certain events, such as the non-payment of a loan. The creditor may take possession of such property in satisfaction of the underlying obligation. In this article, I examined the arguable difference issues regarding the clauses compared with various jurisdictions and trying to analysis the suggestions. I also would like to propose some useful legislative tips for the future amendment of the act after research and study of the debated legal issues.
  • 6.

    Study on the trends of the supreme court cases regarding the disclosure duty

    Lee, Kyung-Min | 2013, 1(1) | pp.133~154 | number of Cited : 1
    Abstract
    Insurance contract is a contract of utmost good faith. A risk situation cannot be grasped correctly only with insurer's investigation into risk, which is under the control of party insuring. Thus, only when obtaining cooperation of party insuring who is dominating its risk, the insurer can grasp correctly on the risk. The insuring parties are obliged to disclose material fact which they know about the risk to each other before the contract is concluded. If the insurer breaches the duty of disclosure, the insured can terminate the contract withen the period of exclusion. The Insurance contract law in commercial code is giving insuring parties a duty of disclosing true information on risk. In insurance contract law the duty of disclosure plays very important role. Many of conflicts are arising from the duty of disclosure. This study concentrates on analysing and reviewing the korean supreme court cases regarding the disclosure duty, in particular material fact, material fact, non-disclosure and causal relationship.
  • 7.

    Suggestions for Improving Protection and Support for Criminal Victims

    seunghun Jeom | 2013, 1(1) | pp.155~192 | number of Cited : 2
    Abstract
    Since the state owns and exercises the exclusive authority for prosecution, jurisdiction and punishment over its people, it should be responsible for protecting them when they are injured by criminals. It would be thus reasonable for the state to adopt a criminal policy to save the victims from injuries promptly and to facilitate the offenders to return to society. The article 30 of the Korean constitution stipulates that "any of the people who lost life or get injured physically from offense of others shall have the right to receive aid from the state as specified by the law", providing by thus for a legal basis for protecting criminal victims. Based on this provision, the 'law for protecting criminal victims' was legislated. Most measures to protect and support criminal victims in Korea are concerned for certain crimes like sexual offence, domestic violence, sex trafficking, etc. that might frequently produce female victims. And even measures for protection and support for such victims themselves have suffered from financial deficiency and lack of professional manpower. Although, in addition to monetary compensation in practical terms, various approaches for aid are needed to recover the loss of victims, it can not be a realistic solution to completely rely on the state for such measures since tremendous amount of money is needed and large scale of manpower, organization and financing must be mobilized to that end. This is why it has been discussed recurrently to build up a social system under the initiative of civil organizations to provide aids to victims like treatment, counselling and economic subsidies. The 'law for protecting criminal victims', also known popularly as the Korean version of Bill of Rights, was legislated on Dec. 01, ensuring by thus the systematic protection and support for criminal victims. Thanks to enactment of the law, 57 centers for supporting criminal victims were established across the country and the criminal mediation system was put in effect. It was made known, however, that the staff of the centers are not sufficiently qualified to handle their job and their budget as well as manpower are far from satisfactory enough to perform their assignments properly. The criminal mediation had been practiced even without legitimate ground until it was backed up legally in 2010 when the law for protecting criminal victims was revised, although it has yet some problems in it. It is the intent of this paper to investigate the issues concerning the criminal mediation system, aids to save criminal victims and centers for supporting criminal victims as well as to suggest measures to improve these issues.Since the state owns and exercises the exclusive authority for prosecution, jurisdiction and punishment over its people, it should be responsible for protecting them when they are injured by criminals. It would be thus reasonable for the state to adopt a criminal policy to save the victims from injuries promptly and to facilitate the offenders to return to society. The article 30 of the Korean constitution stipulates that "any of the people who lost life or get injured physically from offense of others shall have the right to receive aid from the state as specified by the law", providing by thus for a legal basis for protecting criminal victims. Based on this provision, the 'law for protecting criminal victims' was legislated. Most measures to protect and support criminal victims in Korea are concerned for certain crimes like sexual offence, domestic violence, sex trafficking, etc. that might frequently produce female victims. And even measures for protection and support for such victims themselves have suffered from financial deficiency and lack of professional manpower. Although, in addition to monetary compensation in practical terms, various approaches for aid are needed to recover the loss of victims, it can not be a realistic solution to completely rely on the state for such measures since tremendous amount of money is needed and large scale of manpower, organization and financing must be mobilized to that end. This is why it has been discussed recurrently to build up a social system under the initiative of civil organizations to provide aids to victims like treatment, counselling and economic subsidies. The 'law for protecting criminal victims', also known popularly as the Korean version of Bill of Rights, was legislated on Dec. 01, ensuring by thus the systematic protection and support for criminal victims. Thanks to enactment of the law, 57 centers for supporting criminal victims were established across the country and the criminal mediation system was put in effect. It was made known, however, that the staff of the centers are not sufficiently qualified to handle their job and their budget as well as manpower are far from satisfactory enough to perform their assignments properly. The criminal mediation had been practiced even without legitimate ground until it was backed up legally in 2010 when the law for protecting criminal victims was revised, although it has yet some problems in it. It is the intent of this paper to investigate the issues concerning the criminal mediation system, aids to save criminal victims and centers for supporting criminal victims as well as to suggest measures to improve these issues.