Korean | English

pISSN : 2288-1840

2020 KCI Impact Factor : 0.86
Home > Explore Content > All Issues > Article List

2016, Vol.4, No.2

  • 1.

    Issues on Labor Law by Development of ICT - Focused on Smart Work -

    Jinyoung Kim | 2016, 4(2) | pp.7~41 | number of Cited : 5
    Abstract
    By a fusion of advancement of Information and Communication Technology (ICT), artificial intelligence and robotic technology, Era of Fourth Industrial Revolution has began. The development of the ICT which has led to Era of Fourth Industrial Revolution is causing a major change in human life. We are always able to live in on-line connection environments by using mobile devices such as smart phones and tablets and using a cloud network service in our daily lives. The development of the ICT and proliferation of the mobile devices have caused limitations of time and space to be overcome. This phenomenon is improving overall quality of life in all areas of our society and changing our work and even labor environments. Changes are happening in ways of working with so-called "Smart Work" that people can work without any restrictions on working location or time. By a dissemination of computers in 1990s, ICT has been repeated development, but it has had no significant effects on work or labor markets. Therefore, so far, "working conditions" such as employment and payment related to labors, "relationship between work and family life", "personal information of workers" and "information leakage by workers" have been mainly discussed. However, recently, labors by automatic and intelligent controls of robots or artificial intelligence have begun to appear by getting out of traditional human labors, which has a potential to alter even nature of labors. The development of rapidly sophisticated ICT has caused predicting problems which will occur in the future to become increasingly difficult and pre-emptive response time regarding consolidation of legislation to become insufficient. However, now, it is time to review policies and systems of the labors as it is largely possible for nature of the labors to be changed. Therefore, in this study, introduction status of smart work in accordance with the development of ICT in Korea has been examined and issues on labor law which may be occurred in the future have been discussed.
  • 2.

    A Legal Arguments over the Issues on Dual Use of Science and Technology and Freedom of Research

    Jongho Kim | 2016, 4(2) | pp.43~79 | number of Cited : 2
    Abstract
    Dual use research is research conducted for legitimate purposes that generates knowledge, information, technologies, and/or products that can be utilized for both benevolent and harmful purposes. Conceivably, much of life sciences research could be considered dual use—that is, most of the information it generates has some potential to be misused. Thus, both DURC policies focus on “dual use research of concern,” or “DURC,” which is defined as: Life sciences research that, based on current understanding, can be reasonably anticipated to provide knowledge, information, products, or technologies that could be directly misapplied to pose a significant threat with broad potential consequences to public health and safety, agricultural crops and other plants, animals, the environment, materiel, or national security. The potential for dual use of certain life sciences research has been recognized as an important biosecurity issue for a number of years. The Federal agencies sponsoring research have an important responsibility to address this issue, which was formalized in the U.S. Government Policy for Oversight of Life Sciences Dual Use Research of Concern (March 2012 DURC Policy). However, it is vitally important that researchers and their institutions are also vigilant with respect to the potential for dual use of life sciences research that they carry out. The Policy for Institutional DURC Oversight articulates and formalizes the roles and responsibilities of institutions and investigators when they are conducting certain types of research supported by the Federal Government. Investigators, in particular, are often best positioned to understand the implications for dual use of the information, technologies, and products emanating from their research and to propose and implement strategies to mitigate the possibility that the results of their research will be misused to do harm. In short, the Policy for Institutional DURC Oversight aims to preserve the benefits of life sciences research while minimizing the risk that the knowledge, information, products, or technologies generated by such research could be used in a manner that results in harm. Dual use research is research conducted for legitimate purposes that generates knowledge, information, technologies, and/or products that can be utilized for both benevolent and harmful purposes. Conceivably, much of life sciences research could be considered dual use—that is, most of the information it generates has some potential to be misused. Thus, both DURC policies focus on “dual use research of concern,” or “DURC,” which is defined as: Life sciences research that, based on current understanding, can be reasonably anticipated to provide knowledge, information, products, or technologies that could be directly misapplied to pose a significant threat with broad potential consequences to public health and safety, agricultural crops and other plants, animals, the environment, materiel, or national security. The potential for dual use of certain life sciences research has been recognized as an important biosecurity issue for a number of years. The Federal agencies sponsoring research have an important responsibility to address this issue, which was formalized in the U.S. Government Policy for Oversight of Life Sciences Dual Use Research of Concern (March 2012 DURC Policy). However, it is vitally important that researchers and their institutions are also vigilant with respect to the potential for dual use of life sciences research that they carry out. The Policy for Institutional DURC Oversight articulates and formalizes the roles and responsibilities of institutions and investigators when they are conducting certain types of research supported by the Federal Government. Investigators, in particular, are often best positioned to understand the implications for dual use of the information, technologies, and products emanating from their research and to propose and implement strategies to mitigate the possibility that the results of their research will be misused to do harm. In short, the Policy for Institutional DURC Oversight aims to preserve the benefits of life sciences research while minimizing the risk that the knowledge, information, products, or technologies generated by such research could be used in a manner that results in harm.
  • 3.

    Affirmative Action under the ‘Act on the prohibition of discrimination against disabled persons, remedy against infringement of their rights, etc.’ - Focused on 2013 GaHap 2599 Judgement Sentenced on July 3rd, 2014 -

    Kim Jong Il | 2016, 4(2) | pp.81~101 | number of Cited : 4
    Abstract
    The act on the prohibition of discrimination against disabled persons, remedy against infringement of their rights, etc. (hereinafter referred as to ‘Disability Discrimination Act’) enacted in 2007 was an important and significant achievement in line with global trends, and it has been eight years since it was enforced in 2008. While other regulations and roles for disabled persons such as welfare and dispensation are subject to a national budget like general welfare, education, occupational rehabilitation, employment support, etc., the Disability Discrimination Act entails detailed rights that disabled persons can request their protection and relief from any discrimination. In this respect, the Disability Discrimination Act lays the foundation that changes the perception of disability from the medical model to the social one in our society. Clause 2 of Article 4 of the Disability Discrimination Act is regulated that ‘the court can judge on affirmative action, etc. to suspend any discrimination and to improve or correct the employment conditions of a wage, etc. according to the claim of a victim’ for the effective relief of rights if any discrimination for disabled persons has occurred. However, the majority of them result in compensation, settlement, reconciliation, or arbitration instead of affirmative action under the act from 2008 enacted in line with the Disability Discrimination Act up until now. However, although this judgment is shown at the first trial, it is significant that the court applies affirmative action regulated in the Disability Discrimination Act. In addition, it goes one step further in the fact that the actual relief of rights for disabled persons orders affirmative action rather than any monetary compensation as the recovery for any damages that occurs from disability discrimination. This study is aimed at reviewing the meaning of the judgement, the implication and limitation of the Disability Discrimination Act, the encouragement of affirmative action system, etc. through 2013 Gahap 2599 Judgement Sentenced on July 3rd, 2014 (judged to be the affirmative action for the case on disability employment that was rejected).
  • 4.

    A Study on the Custody System for Criminals with Mental Disorders and its Improvement Measure

    장승일 | 2016, 4(2) | pp.103~128 | number of Cited : 13
    Abstract
    In the past, the Security Measures System of the Social Protection Act was abused as a menas to excessively restrict the freedom of the people. However, according to the principle of liability of act in criminal law, the usefulness of the treatment and custody system, which provides quality medical treatment to those who cannot be imposed with punitive action and promotes the security of society by means of social rehabilitation and by preventing recidivism is undeniable. The Medical Treatment and Custody Act has been considerably amended in regards to the controversial regulations, procedures, and treatment in terms of management, as stipulated in the Social Protection Act. In particular, limiting the long term confinement period of treatment and custody facilities to the 15 years may be positively assessed as having resolved the problem of indeterminate sentences. Foreign countries prioritize social stability and do not define a limitation to the confinement period. However, considering the principle of proportion, the treatment period should be individualized according to the gravity of the crime of each mentally disabled person. A recent amendment that introduced a treatment order system for minor offences by the mentally disabled is a positive development. The previously discussed treatment order conditional to indictment by the prosecutor is not valid considering the expansion of the discretionary power of the prosecutor and the overlap of the subsequent judicial process when the treatment order is not fulfilled. If treatment and custody emphasizes the character of security measure rather than individual treatment, it ultimately is not different from punishment, and furthermore and may lead to the double stigma of both criminal and mentally disabled. In consideration of such aspects, the Treatment and Custody System must be developed as an effective measure that aids the social rehabilitation of mentally disabled criminals through treatment and improvement along with the purpose of actually protecting society. To achieve this, the accurate state of mentally disabled criminals as well as the mentally disabled must be investigated, and a new framework for an innovative transition of mental health services must be recreated, along with policy alternatives to improve the human rights of the mentally disabled. Most of the mentally disabled may not achieve complete recovery through medication but they are capable of living a normal life. Therefore, we need to take considerable interest and consideration to the mentally disabled by changing the perception of regarding the mentally disabled as potential criminals.
  • 5.

    Constitutional Issues on Intellectual Property Rights

    Kim Sung Ryul | 2016, 4(2) | pp.130~150 | number of Cited : 0
    Abstract
    Intellectual property rights must be protected. However, one-sided strengthening of protection of the intellectual property rights system can contradict human rights regulations in the Constitution such as academic freedom, freedom of art, and freedom of speech in the Constitution, and close attention needs to be paid. One reason is that the intellectual property rights system does not only pursue protection of rights of the intellectual property rights holder but also intends to cause creative motivation by providing proper compensation for mental and physical creative activities to the author and to promote development of culture by allowing the general public to properly use that. Another reason is that a public interest of improvement and development of popular culture must be considered while protecting the rights of the author in order to let the intellectual property rights and the basic human rights regulations in the Constitution be in harmony. Therefore, it is viewed that wisdom is needed to actively use the concept of fair use, which is to properly compensate for the rights of the author with appropriate compensation policies and to let the general public use that legitimately, and to interpret the basic human rights regulations in the Constitution and the intellectual property rights system in harmony.
  • 6.

    A Study on Compensation for Damages in Medical Malpractice Lawsuit

    조민석 | 2016, 4(2) | pp.151~181 | number of Cited : 4
    Abstract
    This paper is about "A Study on Compensation for Damages in Medical Malpractice Lawsuits". It seems that such tendency is influenced by promoted consciousness of patients in their right, collapse of reliability on medical service, and increased opportunities of legal structures. The damages to patients due to medical services are called medical accidents in medical services and only the faults are caused by doctors(medical institutes) are called medical faults. As they are provided to improve patients' health or treat their diseases even though medical services accompany invasion to human bodies. There are many precedents that blame liability on illegal behaviors. it is difficult for patient to demonstrate the imperfectness of the medical service because he is not professional. When a doctor or other health care professional makes a mistake that ends up causing harm to a patient, that error can (though it doesn’t always) lead to a viable medical malpractice claim. So let's assume that you’ve done a little research, you believe in your case, and so does your lawyer. Keep in mind that establishing a doctor’s liability for harm to a patient is a complex process, and you and your legal team are going to be in for a fight. So let’s look at what it takes to prove a medical malpractice case. The majority of medical malpractice lawsuits reach settlement before a verdict is reached at trial. But medical malpractice lawsuits do reach the trial phase a little more often the most injury-related cases, since health care professionals (and their insurers) tend to dig in their heels and demonstrate more of a willingness to let things play out in court. That means you don't have to pay your attorney a representation fee unless the case reaches a favorable outcome for you, meaning you receive a settlement (before trial) or a jury rules in your favor (after trial). If a favorable outcome is reached, the attorney will receive an agreed-upon percentage of your settlement or judgment (usually around 33 percent). You may have to pay expenses associated with your case, regardless of whether you win or lose, so be sure you understand the fine print of any contract you sign. If this problem is abandoned and offenses and defenses between the doctor and the patient are observed, equity and fairness pursued by the civil procedure can not be achieved. Meanwhile, if a disadvantage is given to the doctor in the lawsuit in consideration of non-professional aspect of the patient, it is also unfair. this study is to parallel a comparative analysis and a review on precedents in consideration of reality of the problem. Medical malpractice lawsuits are usually based upon a claim that a health care provider was negligent. To establish negligence, the plaintiff(patients) must prove the practitioner’s actions fell below the accepted standard of care, i.e., the degree of care a reasonable, similarly qualified health care provider would have provided under the same or similar circumstances. Establishing that a provider’s actions fell below the standard of care often involves the expert testimony of other health care professionals in the same field of medicine. Frequently patients are unconscious when the negligent act occurs or there is insufficient documentation regarding the health care practitioner’s participation during the medical procedure. When this is the case, it may be difficult to prove negligence, even with the assistance of experts. In such circumstances, some states allow patients to rely on a legal doctrine called “res ipsa loquitur” to establish liability. In conclusion, It should be amended that "Act on remedies of Medical malpractice and adjustment of medical dispute" be to include “res ipsa loquitur” Consider an Out-of-Court Settlement Medical malpractice cases can be timely and costly, which is why most medical malpractice cases are settled out of court. In addition, because medical malpractice insurance companies reject a significantly large portion of medical malpractice claims, it may be in your best interest to settle out-of-court or risk having no case at all. Keep in mind, however, that if you believe you have a strong case, then you should seek a larger settlement. Contact a Medical Malpractice Attorney Finding a qualified medical malpractice attorney can mean the difference between receiving compensation for your injuries and walking away empty-handed. An experienced attorney will be able to discuss the strengths and weaknesses of your case and advise you on a course of action moving forward. A good first step in finding the right attorney is to get a free claim evaluation from a medical malpractice lawyer.
  • 7.

    A Study on the Witness Immunity System

    Jeon Myung Gil | park | 2016, 4(2) | pp.183~203 | number of Cited : 0
    Abstract
    Unlike crimes in which there is a specific victim, organized crime or those regarding corruption are conducted secretively in an organized fashion, and thus it is hard for people other than the accomplice to provide direct evidence for the crime or for law enforcement to expect the accomplice to testify even with the possible danger of self-incrimination. Furthermore, given that it is very difficult for the law enforcement to find out the truth without the voluntary cooperation of the witness, the fact that there is no way to forcefully find out the truth with the aid of systems such as those that may exempt witnesses from their punishment, there is no way to improve the transparency of the procedure for collecting evidence. Stated otherwise, it is crucial that witness immunity be adopted for increased transparency and accuracy during the process of collecting evidence. But reality may differ depending on the law and criminal legal system legal system in each country. South Korean prosecutors have exclusive rights during criminal investigations and prosecution and the mitigation of punishment in extenuation of circumstances, courts have discretion and through the system level of severity, about the law enforcement cooperation The reality is that their weak protection system. Our country be in constant fear of rights abuses with the concerns of the prosecution of potential abuses of the judicial system in real life is very high, with multiple, stressing the effectiveness of investigations Problems and may have negative side-effect to introduce a system that is robust investigation and the evasion of responsibility that can not go for a rescue mechanism in place able to avoid criticism that the man Will not be. Also legislation of Immunity or Reduction of sentence isn't appropriate in Korea. Because Korean judge has very wide discretion in sentencing.
  • 8.

    An Empirical Study on Factors that Exert Influence on the Sentence of Probation - Focused on Analysis of Written Judgements about Crimes against Food and Sanitation -

    MoonKwi KIM | Jeong, Cheol-Woo | 2016, 4(2) | pp.205~228 | number of Cited : 1
    Abstract
    The purpose of this study is to provide a fundamental materials to the criminal defendants for the better defending in a court. It might be helpful to know whether they were sentenced to be probation or not, so this study analysed the impacting factors to the probation. This study collect data of 91 written judgements about crimes against food and sanitation from 1970 to 2010. From these written judgements, variables such as the periods of imprisonment, deposition order, the income from crime, whether is the multiple offences or not, crime record, defendants regretting that could be the reasons of probation are collected. For this study, model of logistic regression was conducted. The result of this study showed that the defendants with multiple offence, crime record had the lower probability to be sentenced probation and those with regretting had the higher probability to be probation. And the judge regarded defendants’ regretting was the most important factor in deciding the probation. This study had some limitations-shortage of case, not including social economic variables. Nevertheless this study made valuable contributions in that it first attempted to quantify the impacting factors to the probation.