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2014, Vol.2, No.2

  • 1.

    Digital Forensic Applications in Medical Dispute Investigation

    Kwon Yangsub | 2014, 2(2) | pp.7~28 | number of Cited : 0
    Abstract
    If there is a medical malpractice, false medical records are often written. False medical records are written because medical reality is hard to be ignored but sanctions and penalties are not strong enough so there is not a big disadvantage even if the truth comes out. If false records are discovered and proved in medical dispute investigation, medical dispute can be mediated quickly. In order to discover false entry of Electronic Medical Record, Digital Forensic Procedures and Techniques should be used. As a way to use Digital Forensic Procedures, the following five were presented. Electronic false records can be prevented and Digital Forensic can be used in the post-investigation when standardizing Electronic Medical Record, establishing log record storage obligation regulations and punishment regulations for disposal, imposing electronic records submission obligation during investigation of Arbitration Committee, preparing a plan for digital forensic professional education.
  • 2.

    Free Speech on the Internet -Focusing on the U.S. Law-

    Kim Sung Jin | 2014, 2(2) | pp.29~52 | number of Cited : 0
    Abstract
    The First Amendment of the U.S. Constitution states that Congress shall make no law abridging the freedom of speech. Internet has destroyed concepts of time and space, so it has provided new forum of free speech. Many commentators initially thought that the Internet would promote the free speech value in the First Amendment. However, the Internet has not improved the free speech value today rather eroded its value. Individuals enjoy their strong free speech rights in the public forum, but not in the Internet space since private entities such as Internet service providers (ISPs) control the cyber space without checking under the First Amendment scrutiny. Even though ISPs significantly infringed free speech right on the Internet space, neither the courts nor Congress have looked seriously upon speech limitations imposed by ISPs. Courts have rejected challenge to ISPs' speech control because such actors are neither state actors nor the functional equivalent of state actors under First Amendment. Moreover, Congress has positively encouraged ISPs to control Internet speech which can be protected expression under First Amendment. Thus, through Term of Service, ISPs can exercise their discretion to restrict users' expression on the Internet regardless of the First Amendment scrutiny. To improve free speech right on the Internet space, public forum values should incorporate into Internet since the public forum doctrine is the very important concept to promote free speech value in real world. In addition, states should construe free speech clauses in their own constitutions to grant their citizens the free speech right in private forums that are the functionally equivalent to traditional public forums. The courts and Congress should seriously consider the free speech infringement problem caused by private actors on the Internet space to maintain fundamental constitutional protections.
  • 3.

    A study on medical malpractice liability insurance, etc.

    Youngkook Kim | 2014, 2(2) | pp.53~100 | number of Cited : 5
    Abstract
    In medical disputes, the problems of ‘specialty and information asymmetry’ coexist between involved parties and these function as a significant factor in exploring a reasonable resolution. If medical disputes are to become a legal action, the burden on the injured party increases regarding how to prove a certain medical behavior by medical staff was accidental or intentional. It is controversial that medical behaviors with accused malpractice would be fairly assessed. That is because assessors such as assessing medical staff tend to be passive in proving a corresponding medical behavior was accidental or intentional. Also the longer the lawsuit becomes, the more the assessments need to be made according to the level of trials, thus, raising cost. The Act of the Damage Relief on the Medical Malpractice and Mediation for Medical Dispute in South Korea has been in force since 2012. The Act operates the subrogation payment system for damage compensation and assessment of medical behaviors under the assumption of medical dispute arbitration and mediation. Still, the system has only been less frequently utilized as the Korea Medical dispute Mediation & Arbitration Agency intervenes with own procedures under the consensus of involved parties. But, the system is expected to play a significant role if the principle of coercive appealing transposition is legislated. If medical accidents are to be assessed fairly by a public organization, accidentality or intentionality of a corresponding medical service provider will be impartially proven according to reasonable procedures. And ultimately, it will emerge significantly to realize damage compensation for victims or patients in an appropriate and swift manner. Now with the subrogation payment system in place for damage compensation in the country, if a victim requests subrogation payment for own receivable amount, the Korea Medical dispute Mediation & Arbitration Agency is regulated to indemnify for it first then later on receive from a party liable for the damage. In terms of relief for victim, such an institutional system is timely implemented. However, in order for medical staff to pursue medical behaviors on a stable basis by securing the ability to bear the financial responsibility independently, it needs to be mandated for them to have a liability insurance or medical malpractice insurance. In this recognition, the present article explored how to reinforce the specialty of the medical liability association and how to activate the medical liability system. Especially in this situation where remote medical practices have been widely adopted, profit-making hospitals are expected to rise and visiting foreign patients are surging, the national policies on medical insurance and liability systems should be reviewed by the government for their active application to ensure swift and proper resolution of medical disputes.
  • 4.

    Effect on voting delegation to the Board of Directors of the Educational Foundation - Relationship between Article 62 of the Civil Code and Article 19, Paragraph 3 of the Private School Act-

    HyeonSon, Kim | 2014, 2(2) | pp.101~119 | number of Cited : 1
    Abstract
    The Board of Directors of Educational Foundation is legislative body which is lead reasonable conclusion by exchange of mutual opinions with directors meeting focusing on the school management. Therefore, exchange of mutual opinions are very important and there must be necessary meeting by reaching resolution. Delegation of power to voting rights and documentary resolution is basically not allowed. Furthermore, issue arisen in such a case how to interpret when no direct clause prepared in the article of corporation of educational foundation or Private School Act. Moreover, according to Article 27 of the Private School Act and Article 62 of the Civil Code, it seems possible to delegate her power to other director who have specified action by giving proxy to her. However Article 19, Paragraph 3 of the Private School Act provided that "the directors shall attend meetings of the board of directors and deliberate and make decisions on matters concerning the affairs of the school juristic person, and take charge of the matters delegated by the board of directors or the chief director," and it can be interpreted that the director in the private school may not delegate her power of vote to other director not by attend in the meeting of board of director. Article 62 of the Civil code states that "directors may have other persons act as agents for specified acts only when such acts are not forbidden by the articles of incorporation or by a resolution of the general meeting," and Article 19, Paragraph 3 of the Private School Act states that "the directors shall attend meetings of the board of directors and deliberate and make decisions on matters concerning the affairs of the school juristic person, and take charge of the matters delegated by the board of directors or the chief director," and further states in the article 18-2 that "all of the officers who are present at the meeting of the board of directors shall affix their signatures to the minute or the meeting record in a manner that their names are easily identified and in case where the minute or the meeting record consists of not less than 2 sheets, they shall affix their signatures to the spaces of such sheets," and, article 9, paragraph 3 of the Act on the Establishment and Operation of Public-Service Corporations states that "Proceedings of the board of directors shall not be resolved in writing," and considering academic dogma and supreme court precedent holding on the director's meeting in the stock corporation is not allowed attendance as a substitute (for) delegator director, the director of Private School may not delegate her power to other director of her voting right.
  • 5.

    A Study on the Legislative Model of School Police in Korea

    PARK HYUN JOON | 2014, 2(2) | pp.119~148 | number of Cited : 0
    Abstract
    The school violence is showing a stable tendency statistically. But it is no more than official statistics. The hidden crime of school violence is by far more serious. In order to prevent the school violence the other countries operate various school police systems. A similar one also has come into effect in Korea. Our school police system is receiving a good evaluation from students and teachers. The objective of my research is to complement our system by legal. Because it is necessary to raising an effect of the school police service. In order to legislative the school police the legal basis must come to be investigated first. I think it proper to amend the law on school violence. And like the auxiliary policeman the school police must adapt the law on policeman's duty execution to their service. And the amended law has to be provided with management regulations about the school police. I think that the school police must be given a role as the School Security Officers(SSO). To prevent the school violence is a duty of the nation and the region. The operating of a School Police system is to protect the education right of students. they must haste to amend the law like this.
  • 6.

    An Overview of Healthy System and Insurance in Rwanda

    Sam Letitan | 2014, 2(2) | pp.149~176 | number of Cited : 0
    Abstract
    In many African countries a considerable proportion of the population faces problems of financial access to essential health care services. This holds especially true for the informal sector and people living in rural area. This holds especially true for the informal sector and people living in rural areas. In order to enhance care coverage and provide financial protection against impoverishment due to the costs of catastrophic illness, the Government of Rwanda has implemented several financing mechanisms. Apart from social health insurance schemes covering employees in the formal public and private sector, a community-based health insurance was established to improve access and offer financial protection to the majority of the Rwanda population working in the informal sector. In addition to the Community-Based health Insurance Policy, the present policy has been elaborated to provide a comprehensive guiding framework for a National Health Insurance system in Rwanda. Among the measures proposed is the creation of an overarching health insurance council that will take on an advisory and coordination role for all insurance mechanisms as well as the strengthening of partnerships between public and private institutions. By looking at the wider social health protection perspective it is hoped to fill current gaps in coverage and link the existing mechanisms more effectively. The mutual health insurance (Mutuelle de Sante) system in Rwanda is one of the most extensive community based health insurance schemes operated in Sub-Saharan Africa covering over 90% of the population. Several studies, so far, have documented the success of the Mutuelle de Sante in addressing the two prime objectives of health insurance in a low-income setting, namely to increase access to health care and to reduce the burden of catastrophic health spending particularly for the poorer groups of society.
  • 7.

    A Study on the Problem and Improvement of Personal Information Protection Law

    이인곤 | 2014, 2(2) | pp.183~209 | number of Cited : 5
    Abstract
    The contemporary society of the 21th century has made a rapid progress in information and communications technologies and rapidly developed into information-oriented society through the Internet. As numerous personal information infringement has still been happening the government has been trying to prevent the personal information infringement by amending the act on promotion of infringement and communications network utilization and information protection several times. Also the government has been trying to pretect personal information by enacting personal information protection act. However, the huge number of personal information infringements have happened so far. Hence, the thesis is tried to find the improvement of personal information protection by studying what are the problems and current state of dispute relating to personal information in personal information dispute mediation committee, and also what are current state of the damage compensation lawsuit and the related regulations of law. The rights of informational self-determination directly originated from the privacy act, article 17 of the constitutional law. Similar to tranquility of the habitat, personal information falls into the area of privacy and therefore is the subject of constitutional protection. Even though the protection for personal information is the fundamental human rights prescribed by the constitutional law, the absence of practical act to support its protection led to deal its violation only by civil means as personal information protection law is enacted along with corresponding penalty, the rights of informational self-determination became one of the fundamental human rights that is directly protected by the constitutional law. In conclusion, personal information should be understood as an inherent right of individuals. Accordingly, it involes the criminal protection against the infringement of self-determination. In order to respond the ever-changing information society, lawmaking policies should rather focus on a general and principle legal basis than a case-by-case basis influenced by techological chances. and also it is important to take criminal measures which focuses not on the protection of personal information itself but on types and similarities of its infringement. In addition, it is necessary to develop IT technology to protect individual’s privacy an ever-changing information society.
  • 8.

    An Analysis of the Current Situation of Criminal Mediation System and Effectiveness

    주재웅 | 2014, 2(2) | pp.211~278 | number of Cited : 5
    Abstract
    To overcome a lot of problem coming from the punitive criminal justice in the past, criminal adjustment began to rise as a part of the justice recovery program for the criminal victim. Enforcement test of 2006, it is expanded across the board of the crime victim assistance center of the prosecutor office since August 30. 2007. Currently, the adjustment of the criminal case is being carried out in the nationwide including 58 branches of district prosecutor office. In Korea, our criminal law system defines crime as acts against the State rather than as acts against individuals or communities at large. In these definitional parameters, we often overlook the unmet needs of victims and society after a crime is committed. In our current system, we are preoccupied with retribution instead of restoring the victims and healing the harm done. From here stems the goals of restorative justice: an alternative to the typical criminal justice process. Restorative justice is concerned with healing the wounded victim: financially, emotionally, and socially. It expects offenders to rectify the harms they have inflicted, but then seeks to reintegrate both parties back into society as contributing, law-abiding citizens. Restorative justice seeks to keep those most effected by the crime directly involved with the process of responding to it. It is about looking to the root of crime in its social context, and trying to break the cycle. The process empowers victims, allows offenders to repent and heal, and restores relationships within the community. In recent years, there has been an expansion of alternative dispute resolution into various fields of law, and criminal law is a prime example. As the goals of restorative justice become increasingly popular, and alternatives to the courtroom become more versatile, mediation has become a provocative option for criminal defendants and prosecutors alike. The oldest and most widely used expression of restorative justice is victim-offender mediation, where the victim and offender come to an out-of-court agreement with the help of a mediator. This dissertation will explore the benefits of victim-offender mediation in criminal law and address concerns voiced about it, explore ways in which it is currently being practiced in this country and internationally, and last it will set forth a design for a criminal mediation program which would specifically deal with one jurisdictional branch of district prosecutor's office based criminal mediation board. Victim-offender mediation is somewhat different than traditional mediation. In both, the process starts when the two parties come together with a neutral third person to resolve a dispute and reach a settlement. Whereas in a regular mediation, there is an assumption that both sides contributed to the conflict at hand, in victim-offender mediation there is an innocent victim and an offender who has usually already admitted to the crime. This puts the parties at different positions when negotiations begin. However, this is not a problem because the focus is not on reaching a fair negotiated settlement, but instead on communication, confrontation, accountability, healing, and restoration. Despite the advantages it offers, there have been critics that have voiced several areas of concern with the program. However, studies have shown that victim-offender mediation is successful, improving lives, and changing the way society looks at criminal justice one case at a time. The arrangements of neutral coordinator, through the face-to-face interaction between crime victims and criminal offenders, takes recovery measures of damage caused by crime directly to the victim and foin offenders liability to the crime, and can adjust damages of the victims. As a result, state may provide a vaporization that perpetrator can be avoided the stigma in society, the proper satisfaction may awarded to the victim. The main criminal adjustment start by filing an application for a suspect or victim of crime inspection. The personal civil disputes, such as medical malpractice and defamation complaint and incident of property crime, such as fraud, embezzlement, breach of trust by its own authority are strong criminal mediation case. The mediation process offers parties direct control over the outcome of their dispute. Often in criminal processes there are huge concerns at stake: incarceration for defendants and the vindication of rights for victims. Leaving the decision power in the hands of a distant third party judge creates a lot of apprehension in the parties. Mediation relieves some of this tension, giving parties a sense of power in the process. Being given the ability to navigate a stressful criminal process empowers both sides. Final resolution of the case and substantial damage conservation of crime victims is also subject to this system. It can be seen as a critical strategy that can be a restorative justice program that is fully implemented new crime of the 21st century in Korea. There are numerous psychological benefits for victims who have a chance to confront their offender that do not exist in a criminal trial. The belief that severe punishment imposed on an offender will bring about some kind of peace of mind for the victim is unfounded. Revenge does not restore the losses of victims, answer questions, relieve fears, provide closure, or help to make sense of a tragedy. Further, being able to forgive someone who has caused harm provides a sense of healing to the victims of crimes. One way to meet these needs is confrontation with the offender, and this is the type of justice which victim-offender mediation can facilitate. It is incorrect to assume that the psychological benefit is limited to the victims in the mediation. Offenders are also given the opportunity to truly face the situation and make it right. Retaining a degree of control enables offenders to take responsibility of their action in a unique way, and this in turn purges them of the guilt and label associated with their crime. Receiving true forgiveness for a criminal act is one aspect of victim-offender mediation that is absent in traditional criminal proceedings. Often this forgiveness provides some offenders with sort of a “clean slate,” deterring them from repeating criminal conduct. In several studies that tried to assess the benefits of victim-offender mediation, researchers saw extremely high levels of satisfaction from both parties. They found these consistent results across program sites, types of offenses, and cultures. One victim stated, “it was important to find out what happened, to hear his story, and why he did it and how.” However, it must be noted that those participants that were interviewed for the study chose mediation themselves, making involvement a “self-selective process.” This could be an overlaying factor in the findings because satisfaction may have to do with having the opportunity to choose among options for justice. The mediations were done face-to-face (where victims and offenders met together with a mediator), and also done via shuttle mediation (where the mediator met with each side separately and conveyed details about the agreement between the victim and the offender). The findings were that participants who actually had face-to-face mediations were more satisfied with the process than those who engaged in shuttle mediation. Though the idea of mediation sounds good in theory, many critics have asked whether the offenders really complete the terms of agreements they reach with their victims. The only consequence of not completing such restitutionary agreements would be the possibility that the victim would report the incomplete agreement and a traditional proceeding would ensue. Therefore the offender would have nothing to lose by failing: he could leave the agreement incomplete since the worst consequence puts him same place as he stood before the mediation. However, across studies it has been shown that about 80 to 90% of the restitutionary contracts reached during victim-offender mediation are reported as completed. The more interesting studies are those that actually compare restitution completion of offenders who participated in victim-offender mediation with those offenders who went through traditional court proceedings. There is a sense of justice and real closure for both the victim and the offender through mediation, and that is one factor that motivates completion of these self-constructed contracts. Common sense tells us that parties that create their own conditions and make their own rules are more likely to abide by them. Victim-offender mediation models in use currently can be started at any point in the judicial process. Therefore, they do not interrupt criminal justice in any way. The victims of crimes can chose mediation or decide to partake in the regular criminal and civil proceedings. In some counties that run victim-offender mediation programs, the state retains its right to pursue criminal prosecution of the offender, regardless of what restitutionary agreement is reached during the mediation. This way, the current criminal process remains in tact, but the civil system can be traded for mediation. Even in counties that drop criminal charges if a mediated agreement is reached, the agreement is usually reviewed by a judge or agency for appropriateness and fairness. Recidivism is the traditional measure used to evaluate the long-term impact of justice programs, and can provide insight to the effectiveness of victim-offender mediation as well. Most of these studies are done on juvenile offenders because their cases qualify for victim-offender mediation most often. In a thirty month study of Washington DC youth, the victim-offender mediation participants were found to be less likely to commit subsequent offenses than youth in a comparison probation group. Of the youth that did commit more crimes, the ones involved with victim-offender mediation appeared in court for less serious charges than their “comparison counterparts.” In a recent article, prominent scholars in this field reanalyzed prior studies of offenders in victim-offender mediation and reported favorable results. Other than through studies on recidivism, another way to judge the success of victim-offender mediation is to look at the cost of it. In figuring out the cost impact of the program, its effect on the criminal justice system must be considered. An overall reduction of jail or prison time saves the state or county considerable funds. Also, when cases are mediated they are not tying up the court’s time for trial. In Henderson County, North Carolina, trials were reduced by two-thirds as a result of the implementation of victim-offender mediation. Another way to look at the cost benefit of this process is the saying, “time is money.” Researchers who evaluated the victim-offender mediation program in Cobb County, Georgia found that the time required to process a mediated case was one third of the time needed for non-mediated cases. As a result of research based on this understanding, it was concluded that a number of points below. In other words, as a starting point the question is the criminal adjustment really necessary? Its theoretical basis, we shall consider the idea of restorative justice, and comparing legislative example of other country and we may find some implications. After careful overview of the current criminal adjustment system, we may consider the problem of theoretical criminal adjustment system has little problems. Through the implementation survey of the criminal mediation committee and empirical analysis of Cheonan Public Prosecutor's Office criminal mediation system, I analysis of the system and make some useful conclusion. Through the experience in the field of criminal mediation center as an mediator, I am eagerly seeking the answer on the issue of the criminal adjustment system. The criminal adjustment of the current system play a significant role for recovery, but there were little defect to be cured: freedom of decision making, exercise of veto for the sentencing, the principle of presumption of innocence. At the end of this paper, I would presented for the beginning of sincere discussion for the direction of improvement of current criminal mediation system.
  • 9.

    A Study on the Korean Regulatory Reform

    Hong Wan Sik | 2014, 2(2) | pp.277~309 | number of Cited : 2
    Abstract
    A main purpose of this article is to compare the regulatory reform review and legislative procedure. According to the Basic Law on Regulatory Reform §4①, regulations shall be based on Acts, and the contents thereof shall be provided in clear and unambiguous language and regulations shall be directly provided for by Acts, and the specific details of the regulations may be determined by Presidential Decree, Ordinance of the Prime Minister, Ordinance of the Ministry, or Municipal Ordinances and Municipal Rules. The Korean Government began regulatory reform early in the 1990s. The Basic Law on Regulatory Reform is enacted in 1998 and began the Regulatory Reform Committee(RRC) began to review existing regulations and regulations to be introduced or strengthened. First of all, the RRC register and publicize the regulations of the government. And the RRC evaluate bills and administrative orders drafted by the government. The RRC review the regulations that may have an annual effect on the economy of $10 million or more, or have an effect on 1 million people or more etc. The Ministry of Government Legislation(MOLEG) review the unconstitutionality or unlawfulness of the bills in the governmental rule making procedure. The MOLEG examines wording, structures and expressions of the bills drafted by each ministry and reviews the necessity, legal validity, constitutionality and methodology of their contents. Most of governmental bills shall be reviewed by the RRC and the MOREG, the legislative procedure is very delayed. The RRC is managed by the Prime Minister(the Basic Law on Regulatory Reform §23) and the MOREG is established under the Prime Minister(Government Organization Act §23), it is recommendable that regulatory reform review and legislative procedure shall be integrated.