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2017, Vol.5, No.1

  • 1.

    A Study on Safety Rights of Consumer through Enforcement of Product Safety

    Hong, sunki | 2017, 5(1) | pp.9~38 | number of Cited : 2
    Abstract
    The aim of this study is to deal with content and development for Safety Right of consumer through Enforcement of Product Safety. From the industrial growth, consumers' safety problem is highlighted as a result of the complicated and various products. When a product causes damage to people"s life or body, consumers can hold manufacturers or providers responsible. Therefore, the existence of potentially risky products in a market justifies governmental regulation to protect consumers. Thus, high developed nations, such as German, have started running the Recall system as consumer safety system, 'Legal Regulations on Recall Service.' Korea also adopt advisory recalls which is not only voluntary recalls by company itself but also is not compulsory recalls by government. Although consumers' interest in Product safety in Korea has been growing yearly, the government's policies and legal systems on recall have been unable to support it. Despite the importance of ensuring safety of consumer, the reason why incidents of safety are continuously increasing is because manufacturers or providers may sell products which are potentially risky for the purpose of increase of their profits. To cope with that kind of problems, Product safety management system that fits the country's real situation should be prepared. Therefore, government should establish more detailed regulations to meet the global standard and should take enforced action to guarantee consumer safety. To operate an efficient for consumer safety in terms of recall system, several things should be considered; Administrative fine, Enforcement Fine and punitive damages
  • 2.

    A Study on the Regulatory System for the Consumer Safety - Focusing on Safety Measures(Recall) of Frame Act on Consumers -

    이지은 | 2017, 5(1) | pp.39~69 | number of Cited : 1
    Abstract
    Consumer sovereignty can be realized not to remain nomina if the government protect consumer. Consumer can make a rational decision in consumption only if establishing fair trade order and making fully free choice are met overall. However, it is rarely actualize because a lot of enterpriser have huge capital and power. They can make clever advertizing to manipulate consumer artfully and even create demand itself by inventing new product. Government enacted norm to protect consumers focusing safety of specific product, early. Lately, there are lots of legislations to control about safety product in a various area, too. Furthermore, government make laws to bring the purposes of law into consumer protection itself and into establishing fair trade order. They affect multiply as the measure of safeguard consumers. Frame Act on Consumers is the exact one bring it’s purpose into consumer protection. It includes articles on safety measures and recall system is typical example. Recall system of the Frame Act on Consumers is regarding information on defects of goods and services. Enterpriser shall take a measures such as remove, destroy, or repair defected goods and services, or exchange them for other and refund them if the enterpriser could get information on defects. However, ①Framework Act on Product Safety has already same article and it shall apply with respect to, above all. ②The meaning of “information of defects on service” is too vague. ③There arn’t enough reason to include articles on safety measures to FRAME ACT in spite of lots of norms to regulate product safety. Therefore Frame Act on Consumer shall be revised as follows. First of all, a lots of act to regulate product safety shall be organized systematically, it should be revised to take a role as FRAME ACT. Also, safety measure of services is not necessary to be recall system.
  • 3.

    A Study on the Comparative legal of the Fair Liability as a Imputation Principle

    won, sang-chul | 2017, 5(1) | pp.71~98 | number of Cited : 1
    Abstract
    Modern Civil Law that adopts the principle of fault liability as basic principles, is aimed at guaranteeing the free economic activity of individuals on the basis of liberalism and capitalism. However the economic and social realities, according to the rise of capitalism, the development of machinery, the emergence of large corporations and the expansion of the expansion industry, have made it inevitable for the correction of self responsibility. Therefore, the no-fault liability is emerged by theory of liability for danger, liability for compensation, liability of cause, fair liability, liability for results etc. On the other hand, If you think of no-fault liability as a liability for danger and liability for compensation in a narrow sense, the rationale behind the fair liability is to assume another imputation principle of liability. Indeed, only liability for danger and liability for compensation has been thought of as the principle of imputation liability, but The fair liability should provide theoretical evidence in order to do the principle of imputation on the no-fault liability. Consequently, about the victims who can not be saved by the no-fault liability or fault liability, it is also necessary to provide the basis for new damages and extend the repairing possibility of the victims to the level of the principle of imputation. According to the Korean Civil Act(article 765) concerning application for reduction in compensation amount, the person liable to make compensation in accordance with the provisions of this chapter may petition the court for a reduction in the amount of compensation, if the damages were caused neither intentionally nor by gross negligence, and such payments of compensation shall be a severe hardship to his livelihood(paragraph 1). The court may, if the petition mentioned in paragraph 1 has been filed, reduce the amount of compensation after a study of the claimants and obligors respective financial situations and the cause giving rise to the damages(paragraph 2). Discussion of the compensation for damages and fairness of our country is mainly related to the apportionment of losses between the perpetrators and the victim. Therefore, comparative legal studies are needed to activate the fair responsibility of our civil law. Especially, in order to lay down the fair liability, Current regulations of foreign countries and individual types will give a helpful preview point on our civil law.
  • 4.

    Legal Problems on Uninsured Motorist Insurance Coverage

    Shin,Jong-Seok | 2017, 5(1) | pp.99~120 | number of Cited : 0
    Abstract
    Uninsured motorist insurance coverage means that according to insurance policy, insurance companies indemnify the insured for losses, when they are injured or killed by an uninsured motorist car accident and its liability lies with the uninsured driver. Uninsured motorist insurance coverage was originally introduced as a part of special clauses, but later it has been introduced as a part of common clauses since August of 1995. This insurance was designed to the effect that first the insurer, the insurance company, compensates to the losses of the insured, and then exercises the right of claim to the person in charge. There are different positions on how to define its characteristics such as accident insurance, indemnity insurance, and accident insurance related with indemnity insurance. The Solutions of legal issue would be different according to the understanding of how to see its legal character. Moreover, if the insurer would not compensate for the damage related with unlicensed driving and drunk driving with exemption clause, its validity should be in discussion. As the income of the family increases, many families have several vehicles. This implies that the number of the insured who are duplicate applicants for uninsured motorist insurance coverage has increased. In this case, whether this coverage is double insurance or not is an important factor of calculating insurance money. There is growing concern over how to understand the legal character of the insurance. In addition, I would like to raise a legal problems and suggest an alternative.
  • 5.

    A Study on Amendments of Commercial Act related to Improvement of Corporate Governance Structure

    Lee, Kyung-Min | 2017, 5(1) | pp.121~151 | number of Cited : 5
    Abstract
    Ministry of Justice announced that it would enact the amendments of Commercial Act in the framework to improve the corporate governance structure and democratization of economy in Sep. 2013. The amendments included the separate election of auditors, obligation of cumulative voting and introduction of multiple derivative suit. However, the amendments were abandoned due to the objection from economy world and the ruling party. While 53 big enterprises invested 77.4 billion KRW to MIR and K-SPORTS Foundations which have been investigated at present, only 2 of them determined the investment through the proper resolution in the board of directors’ meeting but the resolution was a mere formality. Some indicate that such serious situation as it is now would not happen if Commercial Act was amended in 2013 and so the system could properly supervise and check the major shareholders and board of directors. As even political circles raise the necessity on the democratization of economy by improving the corporate governance structure along with the concern on the harmful consequences from collusive links between politics and businessmen, the politicians around Democrats submitted the amendments of Commercial Act. The amendments include separate election of auditors, obligation of cumulative voting and electronics voting, introduction of multiple derivative suit and granting the authority to recommend the candidates as non-executive directors to employee stock ownership association. Independent election of auditors is based on the reflection that the functions to be performed by the auditing committee became powerless in the management of enterprise. In the present circumstances which checks and surveillance against largest shareholders of a company are not sufficiently executed, the cumulative voting may secure the independence of auditors and strengthen the protection of rights of minority shareholders. Furthermore, the independent election of auditors has the positive intention as the approach to check the despotism of largest shareholders in the board of directors’ meetings and protect the rights of minority shareholders. However, as we observed in SK or KT&G cases in the past, there is no adequate approach to protect domestic enterprises from the unfair management intervention from hazardous hedge fund. Accordingly, it may have negative impact to domestic enterprises to make independent election of auditors and cumulative voting compulsory. Electronic voting has positive impact to simplify the procedure in the general shareholders’ meetings, facilitate the participation of shareholders, activate the general shareholders’ meetings and encourage minority shareholders to participate in the decision making procedure. Moreover, in these circumstances which a number of holding companies has been increasing every year and business activities have been implemented by organizing the business entities, if affiliates are closely related to holding companies in the aspect of economic and proprietary interests as if those affiliates are part of holding companies, the introduction of representative action may contribute to protect shareholders of holding companies.
  • 6.

    A Study on the Obligee's Right of Revocation

    Jaeguck Kim | 정문성 | 2017, 5(1) | pp.155~176 | number of Cited : 0
    Abstract
    The primary purpose of Obligee's Right of Revocation system is to protect creditors from debtors'. Obligee's right of revocation has been surged since the IMF in 1997, and there have been many judgments on Obligee's Right of Revocation since then, but Obligee's Right of Revocation has been left to the case. Obligee's right of revocation has been surged since the IMF in 1997, and there have been many judgments on Obligee's Right of Revocation since then, but Obligee's Right of Revocation has been left to the case. Civil Law Article 407[Effect of Revocation by Obligee] states that "The action mentioned in the preceding paragraph shall be brought within one year from the time when the obligation becomes aware of the cause for revocation, or within five years from the time of the juristic Act was done. " Obligee's Right of Revocation is defined in Civil Law Article 406[Obligee's Right of Revocation], Article 407[Effect of Revocation by Obligee], but in Germany, in the special law, Switzerland stipulates the bankruptcy law. It is regrettable that the present Civil Law does not address the requirements for the establishment of the acts of annihilation, the effect of cancellation. The case law also limits the scope of creditors to general creditors, and it seems that the problem is that certain creditors with liquidation rights are excluded from the scope of creditors
  • 7.

    Legal review on the Conscientious Objection to Military Service - focusing on the introduction of alternative services -

    Moon Jae Tae | 2017, 5(1) | pp.177~203 | number of Cited : 11
    Abstract
    In Korea, the only divided nation in the world, all the country take not only status as a sovereign but also the responsibility to social and nation. In a liberal democracy, Right to equality is the most important right. That is, realization of equality is a value point that nation should seek in Korea. Korea constitution writes obligatory military service, the obligatory military service is inevitable obligation to the Korean man. But obligatory military service causes loss of time and limited civil liberties during the military service . So many people want to avoid it, if possible. An exemption from the national military service and favor to particular social classes are watched intently by people. Because conscientious objection to military service is also regarded as a tool for evasion of military, negative perceptions prevail about the conscientious objection to people. The tendency about the conscientious objection of the world is a division of opinions, and Germany and Taiwan that go through with the division institutes and conduct alternative service. Korea is still under suspension of fire. And all people in Korea conduct the obligatory military service through the conscription system. The conscription system is closely related with national security. Therefore the conscientious objection should solve through system maintenance in accordance with change of perception of people.
  • 8.

    Study on the Common-Law Marriage Spouse

    park | Joung Soon Hyoung | 2017, 5(1) | pp.205~235 | number of Cited : 1
    Abstract
    Korean marriage is adopting a declaration of marriage or civil marriage requiring a certain form prescribed by law. Therfore, even if a husband and wife live together as a couple, if they do not report their marriage properly, they can not be legally recognized as a couple and can not receive various legal rights and protections that are recognized among married couples such as inheritance. This is the story of the movie and TV actor and actress Park Yoo-hwan's common-law marriage, who took a big part in the media on August 3, 2016. As Korea is expected to enter the super aged society of more than 32.4% by 2040, the issue of the protection of the common-law spouses is emerging as a new law issue. In the case of elderly people, even if they remarry, many sons and daughters of them disagree with their parents' marriage report because of property inheritance problems. Many remarried elderly people are living with common-law marriage. In the case of elderly people, even if they remarry, many of their sons and daughters disagree with their parents' marriage report because of property inheritance problems. Many remarried elderly people are living with common-law marriage. However, in this case, if their partner dies, they may be in a situation where they have to worry about livelihood. Especially, if they are living, and common-law marriage relationship is canceled, arrangement of marital property and etc. by property division are possible. Therefore, they can be protected. However, if common-law marriage relationship is canceled by death of one of the spouses, the right of inheritance is not recognized also, the claim for division of property is not recognized. Therefore, there are many unfair points in terms of equity, as well as the support of surviving spouses. Thus, It is true that the position of the courts in Korea is also sympathetic to the necessity of legislative alternatives. Therefore, in order to examine these problems, this study examines the general theory of the common-law marriage and after analyzing the trends of countries about the common-law marriage, this study will try to find the new ways of dealing with the common-law marriage in Korea.
  • 9.

    A Study on Diversity and Legal System

    PARK HYUN JOON | 2017, 5(1) | pp.237~260 | number of Cited : 1
    Abstract
    The concept of diversity is understood as multiple ways depending on a given fact or a situation and it usually adopts in the fields of politics, economics, social and cultural studies. Especially in the field of political and legal studies the concept of diversity denotes clear difference which could be identified from the background or lifestyle of their social members. Therefore it usually considered as the most positive and comprehensive principle including not only the public side but also the private side because the value of diversity can be realized when the identified variables were accepted comprehensively. This study examined the concept of diversity based on ideology and the results show that within the liberalism, in which the personal freedom, guarantee of right and self realization are securing, the value of the diversity is working in the highest level in social, economic and legal fields. Within the legal system the value of the diversity is directing normative eclecticism. The main idea of the normative eclecticism is adopting various variables in equally respect and comprehensively receptive in the process of legislative policy-making. Thus the concept of diversity functions to encourage formulating good legal system, to protect prejudiced legal conditions, and to promote universal validity of legal system. In sum, the value of diversity in modern society.
  • 10.

    Studies on the Independence and Responsibility of the Judiciary

    JEON ChanHui | 2017, 5(1) | pp.261~286 | number of Cited : 2
    Abstract
    The constitutions of modern democracies are oriented towards liberal democracy and independence of the judiciary is considered as one of the essential components of liberal democracy. It is because independence of the judiciary is the last bastion to protect the rights and freedom of people and human rights in democracy. Article 27 of the current constitution stipulates the right to fair trials in the rules of the right of access to courts. Perhaps this is why independence of the judiciary should be presupposed. In the execution of judicial functions, when judges avoid intervention and direction and hold trials independently and conscientiously by the constitution and law, there can be the belief that judges are exercising judicial power that is given from the people. If people are not given a firm belief in judicial independence, they question the fairness of trials, which is the basis of legitimacy of rulings. It is no exaggeration to say that legitimacy of rulings depends on the trust of people. Therefore, judicial independence is a clear constitutional value that must be guaranteed in a democratic country. However, there can be limitations in courts even if they are made ideal for the protection of freedom and rights of people. Sometimes, courts may disappoint people with erroneous or biased rulings so they should try not to lose the trust of the people. Recently, however, regarding the recent ruling in the appeals trial that found ‘conscientious objectors’ not guilty in since 2004, there has been controversy that the ruling came out of confusion about legislative power. In other words, concerning judges' holding trials mentioning the theory of legislation, there was a doubt about the principle of separation of powers, the responsibility of the judiciary, and state power to be bound by the law. Against this backdrop, this paper demonstrates the significance and importance of the judiciary, the harmony between independence and responsibility of the judiciary, and the fact that national organizations are bound by the law, and it focused on the possibility of resolving a conflict between the positive law and judges’ view of justice by arguing unconstitutionality at the Constitutional Court.
  • 11.

    A Legal Research on Transition to Recruitment for the Efficient Securing of Human Resource Staffing in the Defence of ROK Armed Forces

    Hwang Jung Hoon | 2017, 5(1) | pp.287~335 | number of Cited : 1
    Abstract
    The purpose of this research is to review the possibility of the ROK Armed Forces transition to recruiting military manpower, a trend expanding throughout the world, at the point of military human resource staffing, economical and ideological view. Recently, many countries in Europe including Germany and Taiwan switched their recruiting system from the compulsory to the volunteer forces in which military service is considered as a professional vocation. There were many changes in the 21st century due to the end of the Cold War, democratization, aging populations, and so forth. In case of ROK there were many changes, too. The veterans’ extra point system was done away with by the Constitutional Court in Dec. 23, 1999. But recently the reintroduction of the veterans’ extra point system is being raised by the Ministry of Defense and politicians. Under a revised standard new draft restricts the proportion of veterans’ extra point. As a result, it can be constitutional and reasonable. Considering that the conscription system is a system that is compatible with the principle of equality, national sovereignty, and republicanism, and the fact that it is currently suspended in the United States and Germany, it is desirable to activate the professional agent continuing conscription system. After the reunification, the transition to all-volunteer force can be considered, and the U.S. example can be a model. In case of U.S. The Vietnam War and the unfairness of the draft system played a role in the change of draft system. The Nixon administration suggested the reasonable method to use the budget and human power saved by the change into all-volunteer force in the Gates Report. The effective promotion of policy, active persuasion through mass media changed public opinion. It demonstrates many things to the ROK. Along with the change of international environment and the consciousness of people and clear goal toward the transformation of the all-volunteer force of administration will lead to the legislation of the National Assembly.