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2016, Vol.4, No.1

  • 1.

    A Study on the Public Interest and Socially Weak Protection — Focus on the FCA in U.S. —

    Park Sehun | 2016, 4(1) | pp.7~32 | number of Cited : 5
    Abstract
    The preparation of devices for social security is closely connected with the expansion of 'social capital,' which is highlighted today as a new growth engine for national development in the international society. Social capital can serve as a platform for promoting sustainable development and creating a new growth engine, only when it is built up on the basis of transparency, confidence, and fairness throughout our society, including private enterprises. That is why we must be faithful to public interest and need to take resolute countermeasures against acts that violate public interest. After all, it is linked to fundamental rights of all citizens. Under the main premise of public interest that practical benefits from regulation for protecting public interest and those from the protection of the socially weak are mutually complementary in their nature, protecting public interest seems to be significantly complementary to the protection of the socially weak under the statutes generally and currently applied. This study has a significance in that it marks the start of research on the correlation between public interest and the protection of the socially weak, since there has been no discussion on such correlation. The socially weak appears in various specific forms, such as people socially disadvantaged in the use of facilities, those socially disadvantaged in the use of financial services, those socially disadvantaged in the use of space, and non-regular workers socially disadvantaged in employment. The protection of the socially weak, which has diverse meanings in this regard, will eventually have an orientation towards the protection of public interest and the promotion of practical benefits. The False Claims Act (FCA) of the United States of America is evaluated as a product of efforts made by the government and the private sector to keep national funds appropriated for public interest from malicious claims.
  • 2.

    A Study on the Status of Occupational Accidents and its Improvement in Small-Scale Business Sites

    Kim Sung Ryul | 2016, 4(1) | pp.33~54 | number of Cited : 4
    Abstract
    The risk of occupational accident is not solely controlled or surmountable by employee’s cautions and efforts in today’s industrial society, thereby, the company’s efforts to improve the working environment is extremely important. However, a high cost is required to improve the working environment; therefore, it is unavoidable for a company facing the shortage of capacity available for the improvement if it’s a small-scale business. In addition, the most of small business sites are manufacturing businesses that carry physical labors and simple but repetitive labors in unsanitary environment, posing higher risk of occupational damages. For such reasons, the incidence of occupational accidents in a small business site tripled the large or medium-scale business sites, further indicating that small-scale business sites account for about 80% of the total incidence of occupational accidents in Korea. The gap of such labor conditions and working environment is tended to fix as time goes by, ultimately, a comprehensive countermeasure at the government level as to improve the reality of occupational environment is considered to be necessary. Also the related authority should seek measures to accurately identify the causes of accidents to seek countermeasures rather than giving the same disadvantage to small-scale companies. Regarding the current working process in the National Health Insurance Corporation, the number of cases recognized as occupational accidents accepted by the National Insurance Corporation is extremely lower than private insurance, therefore, the policy should seek an improvement to support employees damaged by occupational accidents to fully recover and get reemployment.
  • 3.

    A Study on the Death with Dignity Bill

    Kim Jong Il | 2016, 4(1) | pp.55~84 | number of Cited : 10
    Abstract
    There is a growing conflict between physicians and terminally ill patients and their families; physicians wish to protect the sanctity of life and will everything in their means to save a life from death, while more and more terminally ill patients and their families sometimes wish to face death with dignity. One of the very few certainties in life is that a human being will eventually pass on, and it is a universal desire for a person to die without pain. However, there is a huge controversy as to whether choosing to die by euthanasia or so-called "death with dignity" is a natural course of life or a universally accepted notion. The medical profession and the academia have constantly debated on the foregoing issue, and the topic of debate was whether a terminally ill patient has the right to refuse life-sustaining treatment. A human being makes many decisions throughout one's life, however, a decision to refuse life-sustaining treatment in order to die with dignity, is clearly linked to the ultimate end of a human life, therefore, a matter of great sensitivity. A recent Korea Supreme Court decision 2009 da 17417, which pertains to life-sustaining treatment and death with dignity (which some prefer to refer to as "passive euthanasia"), is a meaningful precedent in the sense that it established a new direction to help resolve social conflicts surrounding the issue of the treatment of a terminally ill patient. However, there is also a criticism that the decision did not contain sufficient discussion with regard to right to self-determination and right to life. The issue of death with dignity requires a careful balancing of the right of self-determination, right to life, a state's duty to preserve human life. Not an easy task indeed. After which, the issue would be whether a terminally ill patient's right of self-determination, is in reality recognized by medical professionals. There were several bills that were pending pertaining to the issue of death with dignity (e.g., death with dignity bill, right to face a natural death at the final stage of life bill, hospice and easing of medical treatment bill). Through this efforts of the legislation for the death with dignity, the dignity act was finally passed through January 8th Congress in 2016. This Act plans to be implemented from 2018 through the six months grace period, one year after promulgation. In this paper, we seek to review the assessment and future direction for the legislation's death with dignity by examining the concept's dignity, outturn of the bill related to death with dignity since 2009.
  • 4.

    The status and improvement depending in relation to the adult guardianship law

    Oh, Ho-Cheol | 2016, 4(1) | pp.85~106 | number of Cited : 4
    Abstract
    Two years have passed since the adult guardianship law came into force in Korea. While the adult guardianship law came into force, the whole problems of system management were indicated. Even if all problems are considered before making it, problems can happen during the system management. Also we expended time and effort on the adult guardianship law, but unexpected problems are appearing because of a shortage of operational readiness while it has come into force. This article examined improvement issue for the problems, focusing on some problems that occurred during the adult guardianship law. First, we have compared the adult guardianship law with the old system, incompetency system or quasi-incompetence system for result of usage. Second, various problems were examined during designation of a relative guardian. Third, some problems were examined for professional guardian As the result, first, the reason why the result of usage was poor was that publicity was poor. For resolving the problem, we can say that civic group and authority have been publicizing unsystematically until now, so we suggested that the publicity should be done systematically. As the second problem, the biggest problem was relatives in criminal law depending on designation of relative guardianship law. For this problem, we suggested not applying relatives in criminal law when a relative becomes a guardian through a special law, and to interpret positively excluding relatives in criminal law until a special law is made up. Finally, we suggested that for expending to use a professional guardian, the government should clear up the standard for cost of repair and should expend to support the people who burdens with costs. In addition, we suggested that the government could recommend joining “guardian insurance” for the people who has negative opinion on loss by a professional guardian. We suggested considering introduction of “support trusteeship of guardianship system” that is being in Japan for preventing the potential irregularities by a relative guardian or a professional guardian.
  • 5.

    The Improvement of Legal System on the Foreign Labor in Agriculture

    SONG Jae Il | 2016, 4(1) | pp.107~147 | number of Cited : 4
    Abstract
    Due to the population aging and seasonal character in Korean agriculture and rural area, serious shortage of labor occurred in the field of agriculture. Korea recently has a high level of dependence on foreign workers in agriculture over time. There are some relevant legal system for example Labor Standard Act as basic law and Act on Foreign Workers’ Employment as special law. In order to utilize foreign labor in the field of agriculture, this article researches similar legislation in some foreign countries and analyses the problems of korean legal system and proposes some meaningful solutions as follows. First, it is necessary to reform foreign workers’ employment permit system to meet demand of the seasonal workers and establish the legal culture about the contractual relationship between employee and employer e.g. reasonal labor usage, and labor contract. Second, it is necessary to definite the workplace in agriculture in another way to manufacturing industry. That solution makes it possible to terminate the unnecessary dispute about compulsory labor and to change or add the workplace in agricultural off-season. Third, it is necessary to reform the article 63 of labor standard act to take a flexible application of working hours and conditions in the light of the seasonal intensive agricultural character and agricultural foreign workers. Lastly, win-win model between employee and employer in agriculture should be established over the legal culture. It conclude so many field of the careful concern about hiring, education, supervision, evaluation, control and encouragement of agencies such as Korean agricultural Cooperative ('Nonghyup'), ect.
  • 6.

    A Study on the Admissibility of Digital Evidence

    Kwon Yangsub | 2016, 4(1) | pp.149~168 | number of Cited : 4
    Abstract
    Even if the digital evidence was collected through an appropriate procedure, the question of admissibility of collected evidence poses another problem in terms of Evidence Rules. The digital evidence cannot avoid the authenticity problem due to its vulnerability and is only recognized as evidence when the authenticity is proved. In addition, if there is validity as evidence, there is a problem of whether to treat it as hearsay evidence or as non-hearsay evidence. Therefore, the authenticity should be secured first in order for the collected evidence to be used as information to establish the fact after being submitted to the court. Additionally, in the case where its content includes person’s statement, it is treated as hearsay evidence and can only be used as evidence when it comes under the exception of hearsay law. This study suggests the assurance measures for the admissibility of digital evidence.
  • 7.

    On the theory of behavior — Rationality of the theory of personalistic behavior —

    陈 红 星 | 2016, 4(1) | pp.169~188 | number of Cited : 0
    Abstract
    The concept of behavior has the functions of boundary, "basic elements" and connection. The theory of causative behavior discusses criminal behavior in the natural and physical sense. The theory of purposeful behavior defines criminal behavior from the point of view of the purpose of behavior. The theory of social behavior gives a definition of criminal behavior from the standpoint of social meaning. All of these three theories above cannot solve the problems of negligent behavior and omission. However, the theory of personality behavior could not only solve the problems reasonably, but also has advantages in terms of methodology and normativity. Moreover, The theory of personalistic behavior plays a great role in promoting the reconstruction of the system of crime and deepening the research on negligent crimes in China.
  • 8.

    The main plot of tall Disaster Management Act on the status and of Tall Building

    정문성 | 김정태 | 2016, 4(1) | pp.189~210 | number of Cited : 0
    Abstract
    The main plot of tall Disaster Management Act on the status and of Tall Building Tall Buildings is culture many net earnings are expected in economic terms. Society, the increasingly complicated economic, social safety from changes in various disaster risks, including the social environment, has become increasingly complex and important national policy. Security reinforcements in daily life and growing a national requirement for safety in accordance with safety issues has been an everyday rank as one daily life and culture. Establish measures for every country to prepare for various calamities on countermeasure plans, but all kinds of limitations has to deal effectively with disaster There is... Below the nation's main high-rise on Disaster Management Act and current status of existing laws of Tall Buildings to go through.
  • 9.

    Improvement method on task for vitalization of shareholders' meeting and relevant policy

    Youngkook Kim | 2016, 4(1) | pp.211~250 | number of Cited : 5
    Abstract
    These days, many different systems to activate a general meeting of shareholders have been introduced and executed. Therefore, they seem to contribute to operating shareholders' meeting and executing their right. Despite the introduction of the systems, shareholders that go beyond the traditional concept as stockholders are highly interested in short-term financial gains and dividend earnings. The management staff of a company feel burden of shareholders' high interest and participation in their meeting. Therefore, a general meeting of shareholders includes a certain extent of limitation in terms of physical meeting group. In reality, it is difficult for shareholders and the management to improve their awareness. Nevertheless, by seeking actively to settle the new system of an electronic meeting of shareholders, it is necessary to overcome relevant problems. Therefore, this study proposed that the period of the notice for convocation of meeting of shareholders be extended from 2 weeks to 3 weeks. In addition, it proposed that the matters to be provided in advance, such as appointment of a director and approval of director compensation should be announced two weeks earlier, that the agendas with temporal limitation, such as approval of financial statements, should be announced three weeks earlier, and that the provision that the persons allowed to participate in meeting of shareholders are only shareholders should not be defined in the articles of association. By holding stocks, shareholders can naturally execute their right to vote in their meeting. In addition, although there is shareholders' proposal right system in which shareholders can make a proposal in their meeting to check the management staff and board of directors, it is not activated well. Therefore, this study proposed that shareholders' proposal right system be introduced in an advisory way, not in a forcible way, to help out corporate management, and that the period of shareholders' proposal be extended reasonably for meaningful roles. In the beginning, a meeting of shareholders constituted a small number of shareholders so that it was easy to convene a meeting and participant shareholders had active discussion for decision-making. Small firms may actively operate a general meeting of shareholders. However, most listed firms didn't do so, because of temporal and spatial limitations. Accordingly, it is unavoidable to apply electronic methods for meeting of shareholders, including electronic notice for convocation, electronic proxy statement, and electronic voting. The electronic methods are not easy to shareholders. Therefore, offline methods should also be applied in parallel. This study proposed the compulsory electronic voting for the matters that feature easy information offering, such as approval of financial statements, limited compensation of executives, and appointment of directors and auditors (members of audit committee).