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2013, Vol.1, No.2

  • 1.

    A Thesis on the Service in Civil Procedures

    Chang, Hyun-Oak | 2013, 1(2) | pp.7~30 | number of Cited : 0
    The service in civil procedures is very important procedurally enough to be called the beginning and the end of the lawsuit. That is because in the case of working the service of litigation documents well, a fair, fast, and cost-effective action is realized and the remedies for infringement of the rights of the parties is to guarantee. But there are many cases that the service of documents is impossible, by one party’s refusing to receive the documents for the purpose of litigation delay or interference with the exercise of rights of the other party In that case the service is carried out once or twice more in practice. Nevertheless, if the delivery of these services is also disabled, then the service by publication is done. But in this case carrying out the service by publication does not fit the legal requirements, in addition to the method of the service by publication, in fact, there is no other measures. In this thesis, firstly I investigated the various methods of the service allowed in the current law and the effect of the service, and then pointed out the problem that there is no other measures in addition to the method of the service by publication in the case of inability to service, especially by the party’s refusing to receive the documents on purpose. Finally I would like to propose some advisable measures about the problem, the revision of the act and the positive attitude of the courts for instance.
  • 2.

    The Remedy for the Claim Infringement by third Party

    HyeonSon, Kim | 2013, 1(2) | pp.31~69 | number of Cited : 0
    In case the tort is established by the claim infringement by third party, the arguments that whether creditor’s compensation for damages are asked for the ex-post remedies, is almost cleared. As an ex-ante remedy, the claim for removal of disturbance, a relative right of claim unlike property right, can be recognized in the case of claim is invaded. As of current court opinion and scholarly dogma coincidently alleged that the claim for removal of disturbance is not allowed in the right of claim because it is not recognized countervailing even it is discussed with former digress. In addition, precautionary and preliminary injunction to make temporary status under the civil execution act can be taken but Korean court did not accept this action by the reason of no legal ground. If it is so, the injunction that is precautionary and preliminary remedy which arising from tort law may be imaginable. For this possibility, majority opinion affirmed this allegation even statute is not provided, and the claim infringement by third party is also acknowledged. Only, a little argument aroused concerning whether such an argument is approved unlimitedly under the affirmation. The ultimate goal of the right of prohibition, each nation’s trend of court decision and legislation case, judge’s discretion in motion case, violation of good faith exercising of the right of prohibition or considering the control of abuse of rights, there is no need to admit these right because even if unlimitedly allowed this right of legal ground, it will not be a big issue.
  • 3.

    Non self-inflicted responsibility review of the legislation in South Korea and Japan inflicted on Penal Responsibility incompetent

    Hong, Tae-Seok | 2013, 1(2) | pp.71~96 | number of Cited : 0
    Non self-inflicted responsibility review of the legislation in South Korea and Japan inflicted on Penal Responsibility incompetent
  • 4.

    A study on the realization of a mandator's intention in the voluntary guardianship contracts

    Oh, Ho-Cheol | 2013, 1(2) | pp.97~114 | number of Cited : 0
    The voluntary guardianship is a contract in which one selects a nominee in advance for preparing the time when losing judging ability in the future and then grants the right of representation for a work such as property management to him when one has again judgment ability. Such voluntary guardianship system is the fittest system for the realization of a mandator's intention, who has the declined judgment ability, because it is based on the idea of respecting the right of self-determination. A voluntary guardian supporter must respect one’s own intention and do both one’s property management and protection of one’s body when conducting his work. For doing well the work of his property management and protection of his body, it is important to correctly find his intention. However, his intention could not be found correctly always. Therefore, that his intention could be realized as one specifies his intention in an authentic document when making the voluntary guardianship contract with a nominee is important. So this article examined comparatively, focusing on such problems.
  • 5.

    A Study on The Problems and its improvement for Act on Remedies for Injuries from Medical Malpractice and Mediation of Medical Disputes

    김명엽 | 2013, 1(2) | pp.115~145 | number of Cited : 4
    Medical malpractice refers to professional negligence by a health care professional or provider in which treatment provided was substandard, and caused harm, injury or death to a patient. As the number of civil cases due to malpractice continues to increase, alternative dispure resolution has attracted as a means of quickly reaching appropriate solutions to patient’s demands without resorting to lawsuits. To solve the case of malpractice by medical care, Medical Disputes Mediation Act was enacred on April 7th 2011. It is very difficult to be compensated for damages through civil action or other existing resolution methods when medical disputes happens. The K-MEDI(Korea Medical Dispute Mediation and Arbitration Agency) shall endeavor to ensure the medical dispute mediation and arbitration proceedings are conducted in a prompt and fair. According to this law, absolute liability applies to compensation for damages during delivery without negligence of practitioners. A subrogation payment system means that K-MEDI pays in advance after having a review of appraisal department for patients who did not compensation yet in place of health care provider when the patient claims a demand for payment. I insist that the programs needs be conducted by a proper solution to change the conductor of the programs to avoid the unproductive controversy. The rapid and fair medical dispute resolution is of benefit in both patients and medical institutes and decreases social costs.
  • 6.

    A Study on the Food Class Actions of the United States - Especially around the Food Obesity Class Action -

    won, sang-chul | 2013, 1(2) | pp.147~166 | number of Cited : 2
    Food has been much regulated since the dawn of history. It being highly susceptible to adulteration and essential to life, government has acted to insure the ingredients of food. Common Law has also given civil cause of action for damages in relation to the sale of adulterated food. Food litigation is likely to be mass torts litigation because food has a great impact on our daily life. Mass torts litigation for damages has been criticized by many scholars and attorneys for over a decade because attorney fee in the United States is extremely high. Starting with concerns over genetically modified crops, this note focuses on the problems of contemporary obesity litigation for damages in the United States. Obesity litigation against fast-food chains exposes the following problems: causation of negligence tort is eased and class action certification is likely to be denied. The former shows class action is a procedural device and affects torts of substantive law. And the latter shows class action becomes much more difficult in dealing with mass torts claims for damages. This note concludes class action for damages is not a good way to redress obesity problems, suggesting remedy other than damages is a plausible way to deal with the obesity claim.
  • 7.

    Research on National Pension Policy's legal problem and its improvement plan

    lee jae sam | 2013, 1(2) | pp.167~193 | number of Cited : 2
    As the current National pension policy shows problems in the reality, such as national pension fund depletion, reverse discrimination between national pension and basic old age insurance benefits, dead zone of national pension and insufficiency in national pension payment, following improvement plans are required. Firstly, national pension fund depletion may occur due to income ratio differences in pension maintenance. Also, this is becoming a burden to the next generation, along with low birth rate · aging society issues. Low birth rate and the aging society has become a critical issue for a nation, and responsible, long-term policy implementation is likely is to be expected. Second, we need to solve the reverse discrimination between national pension and basic old age insurance benefits. National pension is to receive pension payments after a minimum 10 years of insurance payment, while basic old age insurance benefits is to pay 200,000 KRW to those elders older than the age of 65. Therefore, as the national pension requires regular payment of insurance fees, it is necessary for it to provide better payments for the people. There shall not be reverse discrimination between national pension and basic old age insurance benefits. Especially, in regards to basic old age insurance benefits, its payment shall differ in amount, according to income status. Third, resolve dead zone of national pension. Our country's national pension dead zones are low wage・irregular workers, small businessmen, unemployed people with no income, people thrown out of their pension insurance due to no income, people with no pension payment rights and etc. Therefore, in order to resolve dead zone of pension insurance's non-income population, we need government support policy and system implementation. Fourth, Expansion of pension payment rights is required. The current national pension policy do relieve elder's poor financial conditions, but its amount of pension payment is way beyond the minimum cost of living, which is a result of dysfunction. Therefore, we definitely need to increase the national pension's payment up to the minimum cost of living. It is likely that public assistance in terms of financially supporting elder's later days, is a better option than the national pension's payment means.
  • 8.

    The moral status of animals and the study on the legal status

    정문성 | 2013, 1(2) | pp.195~219 | number of Cited : 6
    Now our society, academia minimize animal suffering came to an agreement that is not a look for. From ancient times only humans have the ability to act morally only because human beings with moral status do not think there has been. However, only the human moral status or conduct that has the ability lift think, you have any questions. Animals also have moral status does not do the wonder. The language used by humans and animals, ability to reason, because the animals do not have the ability to determine that there is a moral act. Use the language of non-human animal, while the animal knowledge, while humans are humans who can not use language. Of course, humans and animals are different. Our Civil law legal status of animals not being developed for specific discussion, but in terms of animal protection laws, including animal welfare dimension method have been studied only in. The moral status of animals and awareness of the legal status of the pet in the care of the human dimension issues that need to be accessed from the Is not I want.