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2015, Vol.3, No.2

  • 1.

    A Study on the Trends of Civil Law in East Asian Countries

    김명엽 | 2015, 3(2) | pp.7~30 | number of Cited : 1
    Abstract
    Transition countries have tried to achieve democratic reforms, economic reforms and economic growth. China’s civil law and civil legislation have been developed rapidly. China does not have uniform civil code. China has formed a basic system of civil law. Single law, such as contract law, property law, tort law, and other major civil legislation which are essential for the Civil Law have been completed it will be introduced in near future. The Chinese civil law has distinctive factors like the doctrine of unification between a civil law and a commercial law, an embodiment of the ideas of socialism, and a critical role of judicial construction. Under policy of economic liberalization, Vietnam, Laos and Cambodia have been promoting transition toward a market economy and an open door policy. However, they were confronted with problems such as an underdeveloped legal system and inadequacies in law enforcement. Therefore they got help to revise civil code by Japan. The Vietnamese Civil Code was entirely amended in 2005. The amended Civil Code took effect on 1 January 2006. It provides more freedom to the parties to a civil transaction and removes certain uncertainties in the original 1995 Civil Code. But Civil code of Cambodia shows different features to the amendment of the vietnamese Civil Code.
  • 2.

    A trend of Japanese registration on changing paradigm from the substituted decision-making to the supported decision-making

    Oh, Ho-Cheol | 2015, 3(2) | pp.31~51 | number of Cited : 1
    Abstract
    Since the Japanese adult guardianship system took effect on April of 2000, it has taken effect a new rule focusing on the new idea, such as 「respect of self-determining」, 「empowerment」, 「Normalization」. Even if Japanese government has brought the modern idea that has an affinity for convention on the Rights of Persons with Disabilities into the adult guardianship system, they have been still focusing on the idea of 「one󰡑s own objective protection」 for a long time ago. Therefore, 「respect of one󰡑s own objective idea & intention」 and 「one󰡑s own objective protection」 have caused the confliction and strained relations with the adult guardianship practice. In other words, if there is a conflict between one and an adult guardian, there may be a risk that one could be managed and controlled one󰡑s life in reality depending on the values of an adult guardian under the cloak of 「one󰡑s objective protection」. Then, in Japan, there have been various discussions for revision of a part of the adult guardianship system. While Japan, however, ratified the Convention on the Rights of Persons with Disabilities on 4th of December, 2013, they have faced biggest crisis for the substituted decision-making of an adult guardian for persons with disabilities. According to the Rights of persons with disabilities, for legal aid of persons with disabilities, the paradigm has to change the substituted decision-making to supported decision-making. If the Rights of persons with disabilities are conducted completely, the government may discuss about cancelling totally restrictive legal capacity system and the Japanese adult guardianship system that has the substituted decision-making system may be cancelled or revised fundamentally. So, this article has examined a problem of revision of the adult guardianship system according with the Right of persons with disabilities and amendment of law according with supported decision-making under Japanese municipal law, which has been discussion recently in Japan.
  • 3.

    A help way of civil case on the natural illumination‧sunshine disturbance

    赵晓舒 | 2015, 3(2) | pp.53~64 | number of Cited : 0
    Abstract
    In China, there appears intensive development of housing in terms of efficient use of residential areas. Thereby becoming narrow the spacing between the buildings. Therefore, it is becoming increasingly difficult to the light and sunshine. The light and sunshine problem began to be a serious social problem. Since the problem of light and sunshine is not so long in China, Let's do that in the current law dealing with this issue. First, I would like to briefly introduce the light and sunshine interference. And consider the relief of its civil law in comparative legal aspects. After reviewing the relationship of interfere with the light and sunshine, I should find a solution. Finally, I wish to review the remedy for the light and sunshine interference.
  • 4.

    Doctor's Civil Liability on the Treatment of Patients in the Medical Contract

    Jong-Ryeol Park | 2015, 3(2) | pp.65~100 | number of Cited : 3
    Abstract
    All people have the right that they do not allow their bodies to be treated by others without their permission. Especially, doctors’ treatment behavior is for curing patients’ diseases and improving their health. In general, however, there is always danger in the treatment as a behavior inflicting the safety of patients’ bodies. Therefore, doctors must treat patients respecting their discretion in medical treatment behavior. Also, they have the obligation of the explanatory duties such as giving patients enough explanation in advance and taking their agreement about the whole parts of medical treatment-symptoms, the method and content of treatment, etc. Like this, the explanatory duties of a doctor are that doctors must explain patients the important matters like danger and side-effect expected hereafter in order to get agreement or permission from patients about physical invasion. By the way, if doctors are idle for the explanation to patients, without any mistake in treatment, the dispute responsible for compensation for damages could happen in the case of patients’ symptoms and side-effect by treatment behavior. In this situation, for the fair and desirable solution in the medical dispute increasing between doctors and patients, the legal theory about the explanatory duties of a doctor is not still enough. Accordingly, I would like to suggest the desirable solution plan for medical dispute by reviewing the foreign legislation example related to doctors’ explanatory duties, implement and exemption of explanatory duties, and violation of explanatory duties and civil liability.
  • 5.

    A Opinion on the revised enforcement ordinance of the Commercial Building Lease Protection Ac

    HyeonSon, Kim | won, sang-chul | 2015, 3(2) | pp.101~141 | number of Cited : 0
    Abstract
    The Commercial Building Lease Protection Act was amended on May 13, 2015. Accordingly, the Commercial Building Lease Protection Act Enforcement Decree is expected to enforce the terms of reference on November 14, 2015. The important issues of the Commercial Building Lease Protection Act Enforcement Decree is the fixed date and the scope of the interested parties, information on the exceeding lease of change deposit etc. The Commercial Building Lease Protection Act was amended to be enforced the Enforcement Decree properly. The amendment of the law was to be recognized the opposing power about the exceeding lease of change deposit. Therefore the law need to provide the information on the lease in order to protect the third parties. Article 4 within article 2 paragraph 3 of the Commercial Building Lease Protection Act is not included it. If the Enforcement Decree provide that the lessee's Registration is not need to provide reading. this can go beyond the bounds of delegated legislation. When it change the law in future, it should be taken into consideration. Also, An authoritative interpretation of the Ministry of Justice is in very limited scope of the interested parties. I think we should be broadened its scope. But the Justice Ministry decree still received the order of National Tax Service. And this is just looking to be perceived a wider range when it change the law in future.
  • 6.

    Status of Child Sexual Abuse Related Legislation and Challenges

    Choung Hye Uk | 2015, 3(2) | pp.143~169 | number of Cited : 1
    Abstract
    Civilized countries all over the world consider child sexual abuse as an “unacceptable crime against the humanity”. In this paper, a legislative system that is built to solve this problem was reviewed in following three ways: ① general prevention through threat of punishment; ② special prevention through corrective training; and ③ prevention of second conviction through restraining order. Three countries that were subjected to review in this paper are Korea, United States, and Japan. Threat of punishment that deters crimes from being committed is dependent on the severity of the punishment. Based on sentencing provisions, child sexual abusers in Korea are usually sentenced from 8 years to 12 years of imprisonment whereas in the U.S., it is from about 18 years to 24 years. That is to say, severity of punishment in Korea is less than half of that of the U. S. Clearly, enhancing the severity of punishment does not always lead to better effectiveness. However, there is still a need for increment. Meanwhile, it is hard to compareto Japan since they do not have a sentencing provision. In case of educational programs for crime offenders, Korean prisons run corrective programs for sexual offenders. However, the attendance is not compulsory and the participation is low. Also, atthe stage of release, whether the offender has been cured of sexual aggression is not checked and the educational programs linked to the probation offices are not implemented neither. On the other hand, in-prison corrective programs and post-release corrective programs are systemically well prepared in the U.S. and Japan and it will be beneficial to study their system. Korea’s electronic tagging system is utilized to prohibit certain offenders from going out during certain time period such as during night and approaching certain area and person. On the other hand, the U. S.’s electronic monitoring system not only prohibits offenders from going out during certain time period but also is used to limit various spatial traveling and the alcohol level is tested 24hours to prevent alcohol related crimes. Accordingly, Korea needs to apply its electronic monitoring system in wider and more various ways. Japan has not yet implemented the electronic tagging system. Disclosure of registered personal information system requires a sexual offender, when released from prison, to submit his/her information to the head of a police office who has jurisdiction over his/her place of domicile and register to the Ministry of Justice. This system has a negative effect of obstructing sexual offenders from re-socializing. However, from the point view of protection of potential child sexual abuse victim, I believe this negative effect is tolerable.
  • 7.

    An Exploratory Study on the Amendment of our criminal law Article 10 Clause 3 and the Legislative challenges in Japan

    Hong, Tae-Seok | 2015, 3(2) | pp.171~198 | number of Cited : 0
    Abstract
    Actio libera in causa, in key areas of responsibility discuss, has been punished about a lot of debate about the evidence. Currently, this problem has been resolved through the doctrine. South Korea is punishable by a regulation. South Korea has been causing a lot of controversy about this. But Japan has no regulations and has recognized it as a doctrine. Because Japan is no regulations on this, It violates the nulla poena sine lege. This paper presents a new regulation item in order to solve this portion. And it presents the legislation through regulation item.
  • 8.

    Vague usage of language in the inquiry

    张 彦 | 2015, 3(2) | pp.199~215 | number of Cited : 0
    Abstract
    This article discussing vague usage of in the inquiry involves the usage of abstract language and vague language. Abstract language is mainly used in some field relating to personal privacy, obscene content and stimulation of language in investigation. Vague language mainly used to make the suspect mistakenly think that we have mastered (enough) evidence, or to let suspects mistakenly think that the cons(or victim, witness) has made confession; coping with the suspect’s “baseline”;coping with questions about crime policy suspects may respond; vague usage of language in the inquiry also considers other factors’ coordination.
  • 9.

    On New Trend of Evidence-Based Crime Prevention

    侯 佳 | 2015, 3(2) | pp.217~246 | number of Cited : 0
    Abstract
    The evidence-based crime prevention, which is a new paradigm, is a scientific revolution in the field of crime prevention. The evidence-based crime prevention searches for scientific evidence depending on evidence-based research methods and assesses a various of crime prevention programs in order to identify what works, what does not work, what is promising and what is unknown in crime prevention programs. The evidence-based crime prevention applies the Maryland Scientific Methods Scale, Meta-Analysis Method, Cost-Benefit Analysis and other scientific assessment methods and provides the simplest communicating way among the policymakers, scholars and practitioners. At the aspect of corrections and rehabilitation of offenders, the evidence-based crime prevention asserts that we should reduce the punitive punishment and integrate the imprisonment with punitive alternatives and adjunctive interventions in order to narrow the gap between scientific research and judicial practices on the basis of scientific assessment. In addition, it is extremely significant and valuable that introducing the evidence-based crime prevention to China could normalize the activities of crime prevention, increase efficiency of crime prevention, fulfill the equal concept of crime prevention, establish scientific crime prevention assessment system and promote the rational disposition of crime prevention resources. It could improve the crime prevention system of China and introduce the education and rehabilitation in China to the scientific track.
  • 10.

    Legal Issues as to Accidents and Coverage of Autonomous Driving Vehicle

    Youngkook Kim | 2015, 3(2) | pp.247~280 | number of Cited : 34
    Abstract
    Automobile Management Act which defines autonomous driving vehicle and permits its temporary driving has taken effect by August 11, 2015. As of such moment, test driving is possible, once certain requirements are met, to bring significant progress on development and commercialization of autonomous driving vehicle. Therefore, such considerations regarding the compensation caused by autonomous driving vehicle must be discussed. Even though technology for completely automated driving is under development for now, vehicles expected to be commercialized by 2020 are designed as partial auto driving system which allows drivers to manipulate the machine under unexpected situations; therefore, it should be approached carefully for analyzing insurance affairs. It looks inevitable to discriminate the application of the Automobile Accident Compensation Security Law between autonomous driving mode and manual driving mode. The accidents caused during manual driving mode can be treated as same fashion of current principle of law. However, for the accidents caused by automated driving system, the newer concept so-called “driving responsibility” should be adopted to supplement the current concepts of benefit of driving and control of driving and to secure objectivity of each case. This is also closely related as to whether the owner of autonomous driving vehicle can be treated as unrelated person. Moreover, in the case of autonomous vehicle, the application of Product Liability Act is another issue, since the accidents can be caused by manufacturer’s liability or designer’s fault. Lately the problem as to SUA (Sudden Unintended Acceleration) is the issue and related precedence is forming certain principle of law. According to such principle of law, whether to adopt compulsory product-liability insurance for such vehicles must be considered in the perspective of protecting injured party; due to the fact that autonomous driving vehicle is being operated by electronic device or computer system.
  • 11.

    The Present Situation and Problems of non-performing loans

    신세덕 | 2015, 3(2) | pp.281~299 | number of Cited : 2
    Abstract
    Non-performing loans (npl) the risk investment, increasing problems, and the reality is that they are extremely exposed. But loans (npl) A Study on the leading research and resources are lacking is the issue no reliable data about loans and (npl) reality. Grasp the meaning and status of the (npl) non performing loans and the purpose of this study, therefore, what causes these problems, explore the bad debts and changing (npl) the market Looking for improvements that can adapt staple, while the buyers for all of this kind of developmental direction could break the market for (npl) bad debts as they search for the course of the purpose. Normal private investor buying and selling of the auction method have not become commonplace information gathering is hard and I returned with the accurate analysis No, you can be hard to get knocked down. Also in the way in the resolution of non-performing loans non-performing loan disposal the financial services company, quick redemption of securities, including the integrity of the recovery in shipments as the main goal should be insolvent bondsDebt for the protection of the institutional and legal instruments is not enough. An alternative way for this purpose and npl the sine non for buying bonds in order to assess the value of bonds of an object of real estate valuation should be prioritized. And npl of creditors that can be made public in more detail the institutional information system is needed. Also, npl and real estate collateral information for assessing the value of bonds, real estate collateral should be opened any type of information, including senior debt, limitations that Point. Though the expansion of transparency of the Organization through the establishment of the trading intermediary was no longer on investing npl It's time to examine it. Non-performing loan disposal in the process of debt criteria as for a system to protect the financial company's sale of non-performing loans and sale procedures and statutory issue at the relevant laws such as punitive measure Need to define. And financial company's sale of non-performing loans career management system for the introduction of the need is trying to think. Finally, unfair collection from the continuing efforts to protect the debtor is required. The government prepare for the long-term low growth and real estate market's future long-term depression it through a proactive policy generated by establishing effective policies and is now about npl expect to be managed efficiently.