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2017, Vol.5, No.2

  • 1.

    A Relation between National Health Insurance, Industrial Accident Compensation Insurance and Civil Litigation for Workers injured by Industrial Accidents

    HoChang Roh | 2017, 5(2) | pp.9~30 | number of Cited : 1
    Korea has introduced the National Health Insurance (NHI) system of social insurance scheme to guarantee the health rights of the people. Workers are also citizens, so they are basically covered by NHI and their right to health is protected. If a worker suffers a work-related injury, the employer is liable for the accident compensation and the Industrial Accident Compensation Insurance (IACI), which is a social insurance, is also responsible for it. The employer is exempted from the accident compensation liability to the extent that the IACI is applied. However, the injury of the injured worker is recognized as a work-related injury after a certain period of time since the application process. The NHI will be responded, in advance, to the medical treatment debts which continue to occur for the treatment period. After all, there is a problem of settlement of expenses between the NHI and the IACI. It is stipulated in the law that the National Health Insurance Corporation (NHIC) can claim the expenses against the Labor Welfare Corporation (LWC). However, in real working situations, aspects are more complex. With regard to the issues surrounding the settlement between the NHIC and the LWC, the Supreme Court has shown some rulings with a lot of clarity and the issues has now become solved quite clear. In this paper, I have reviewed the practical issues related to these cases through the Supreme Court precedents. I also looked at real-world problems in when workers who feel not been fully compensated filed civil lawsuits against employers.
  • 2.

    Problems of Unregistered Foreign Workers and Labor Law

    Cho kyu-schick , 이선희 | 2017, 5(2) | pp.31~57 | number of Cited : 5
    The problem of legal status of unregistered foreign workers arising as a result of failing to meet the requirements of the Immigration Control Act and the employment of foreign workers is becoming a serious social problem as the number of foreigners who work and stay in Korea is increasing. In other words, there are foreign workers who are not legally entitled to work, and who are not legally entitled to work, in addition to foreign workers who legally work in the workplace with the status of residence. In particular, unregistered foreign workers may be employed illegally in Korea, or who continue to work in the country despite the fact that their legal stay has lapsed, or who are working in Korea due to violation of the legal requirements of their status of residence Concept. A common characteristic of these unregistered foreign workers is that they are providing or offering to work for wage purposes but are in an unstable position because they fail to meet the legal requirements of relevant laws. Of course, according to the Supreme Court's ruling, unregistered foreign workers can also be legally recognized for their worker status under the Labor Standard Act and Labor union & Labor Relations Adjustment Act, and for the improvement of working conditions through the establishment of labor unions. However, the working conditions of unregistered foreign workers are very poor in the industrial field that has recently been shown through media. In order to prevent the occurrence of unregistered foreign workers, it is necessary to improve the legal system in the beginning. Nevertheless, if unregistered foreign workers have occurred, as long as they provide labor and stay in Korea, Relevant legal rights should be guaranteed. In addition, there should be at least a guarantee of human life.
  • 3.

    A Study on Hiring Problems and Improvement Measures for Non-regular Workers

    Kim Sung Ryul , Oh, Ho-Cheol | 2017, 5(2) | pp.59~80 | number of Cited : 6
    From the viewpoint of employers, the employment of non-regular workers has the effect of flexibility of labor, cost reduction, guarantee of flexibility in workforce adjustment, various opportunities for workers, and efficiency and productivity improvement of society as a whole. However, from the workers’ point of view, it is a reality that they are treated unfairly in many areas such as low wage, poor working condition, employment insecurity, and discrimination in various social insurance and corporate welfare benefits compared to regular workers. As a result, the problem of non-regular workers is causing social problems such as economic inequality and social disharmony. Considering the various laws in Korea such as the Constitution, the Labor Standards Act, the Employment Security Law, and the Worker Dispatch Law, overall it is a principle that employers who run a business employ workers directly. Nevertheless, the current law on fixed term employment has only put down a limitation on period, and the worker dispatch law has a problem of overextending the work range available for dispatched workers. These regulations ultimately have led to the expansion of non-regular workers and even widened in great scale the number of in-house subcontracted workers whose position is considered to be the worst non-regular employment. These forms of non-regular employment are causing social problems such as economic inequality and social disharmony, and are adversely affecting our economic growth. In other words, social conflicts are intensifying due to unfair treatment and discrimination that non-regular workers experience. Therefore, it is necessary to improve the system, by hiring in principle regular employees in accordance with the purpose stipulated by law such as the Constitution while allowing the employment of non-regular workers only in exceptional cases. In the end, the way to fundamentally solve the problem of non-regular employment is to reduce the number of them to the minimum, and to promote the transition to regular employment in other cases. In particular, in the case of full-time work, it will be necessary to induce regular employment. Specifically, an assertive system will be needed to improve the situation i.e. when an employee working as a non-regular worker is transferred to a regular position, he or she is given a financial benefit to motivate the transition, and a penalty is imposed on the employer who employs non-regular workers more than a certain standard.
  • 4.

    A Study on the Protection of Human Rights of Female Marriage Immigrant

    김혜림 , Jae-Nam Kim | 2017, 5(2) | pp.81~112 | number of Cited : 5
    In January 31, 2017, there were 2,013,779 foreigners residents in Korea which demonstrates 7.1% increase compared to previous year. Compared to the number of foreigners staying in Korea in 2007 which was 1,070,000, the number of people increased about twice in ten years, and it is increasing every year. Despite that foreigner of various nationalities have been introduced into the country and the government has implemented various policies related to multiculturalism, but the consciousness of the people can not accept multiculturalism. There is a more vulnerable group among the immigrants living in Korea under the consciousness which is ‘Korea’s female marriage immigrant’. They suffer from many human rights violations including pre-marriage stage to after marriage and the acquisition of nationality. Most international marriages are made through marriage brokers and international marriages of human trafficking which commercialized local women for generating high profits. In addition, due to the patriarchal consciousness of Korean men and the excessive payment of international marriage costs, there is a case where the recognition of ownership of immigrant women is added to the deal of inhuman treatment. Additionally, conflicts arise in different languages and cultural variations, and unconditional Korean lifestyle is forced to follow. Furthermore, even when acquiring the nationality, unreasonable restrictions are set as a requirement, and even if a migrant woman who has married in Korea for many years, she still has to stay in the position of a stranger without the consent of her spouse. Therefore, to establish a healthy international marriage and to make sure the stability and continuity of the family live, it is necessary to manage the marriage brokering process at the national level and to be the subject of independent and equal rights from the Korean spouse and their families. It should ensure the stable legal status of married immigrants. In addition, institutional improvement is required so that marriage immigrant who needs help are not alienated because they are not subject to legal aid. Above all, to encourage cultures diversity in society members, to respect for diverse cultures and to accept cultural differences, Korean society needs to be recognized through policies such as publicity and campaigns.
  • 5.

    A Study on the Multi Nationality of the Marriage Immigrants

    Kim, Namjin | 2017, 5(2) | pp.113~136 | number of Cited : 7
    Conditional multi nationality is permitted to the marriage immigrants in 2010 Korean nationality law(the 10th revised version). But there are still some problems in this law. This thesis is focusing the problems and their improving alternatives for the marriage immigrants. The main subjects of this survey are as follows; Multi nationality of their under aged children and halfway immigration children, annulled marriage without their own responsibility, prohibition principle of comprehensive commission for decision of denationalization and prepositive principle of the permanent residence rights.
  • 6.

    A Right of a Respect for Family Life in Light of the European Convention on Human Rights, and a Foreigner's Compulsory Eviction - Focusing on a Decision Case in the European Court of Human Rights -

    Lee,Hyeong Seok | 2017, 5(2) | pp.137~167 | number of Cited : 5
    The main agent of enjoying a basic right, which is guaranteed in light of the constitutional law, is a human being. While a person exercises a right as a human, the nation has the obligation of identifying this. This basic right is specifically assured through the Constitution and law. A right, which is prescribed by the Constitution and the law, needs to be naturally secured when it comes to a human being, but may be restricted for the public interest such as the country's existence, public order, and security. A nation divides a human being who is the entity of enjoying the rights into people and a foreigner, and then guarantees differently depending on a characteristic of the right. A foreigner is the main agent of freedom and right wherever the person is as a human. According to the development in scientific technology, a person is dwelling in various countries with having identity dubbed foreigner, rather than settling down in one place. A foreigner has the duty of observing a law of the country in which he or she resides. Given violating this, the nation has the discretionary power of a compulsory eviction measure on a foreigner for the public interest. Given the compulsory eviction procedure on a foreigner, the Personal Liberty should be protected. The European Convention on Human Rights, which is the organization of specifically guaranteeing human rights in the region called Europe, has secured Europeans' human rights through diverse contentious cases. The European Convention on Human Rights is concentrating on the Habeas Corpus for other local residents and minorities who live in Europe, as well as Europeans. As for the forced eviction measure on a foreigner, many judgments, which harmonize with the personal liberty, are appearing with acknowledging the discretionary power in the country of being stayed. The European Convention on Human Rights is focusing on a foreigner's familial formation and union when judging whether or not to have legitimacy in the forced removal procedure on a foreigner. This study aims to examine a decision case in the European Court of Human Rights related to the compulsory removal on a foreigner and to consider an implication of being given to an issue pertinent to a foreigner's forced eviction that is growing in our country.
  • 7.

    A Situation of Personal Information Leakage in the United States and Its Preventive Measures

    Choi Yeon-Jun , Julak Lee | 2017, 5(2) | pp.171~209 | number of Cited : 2
    Virtually every organization acquires, uses and stores personally identifiable information. Most have it for their employees and depending on their area of business, may also have it for a wider group including customers, patients, residents and students. Organizations are expected to manage this private data appropriately and take every precaution to protect it from loss, unauthorized access or theft. Misusing, losing or otherwise compromising this data can carry a steep financial cost and damage an organization’s reputation. This paper examines the challenges companies face and the steps they can take to protect themselves against data breaches and ensure the safety of this sensitive information. The majority of organizations possess confidential data and try to ensure its protection in line with the expectations of their clients, shareholders, business partners and supervisory bodies. Nevertheless, notorious leaks of personal data and confidential information are abundant. Disclosure of confidential information may result in losses and statutory liability, and damage the organization's reputation as a result of mass media publications and wide media coverage. The ever-increasing risks of industrial espionage and loss of intellectual property force organizations to take the following urgent measures: determine which of the information they possess is confidential; assess the efficiency of the existing controls; and select data leak prevention tools.
  • 8.

    A Restructuring of Legal Basis of the Employee Stock Ownership Plan for the Employee of Non-listed Small and Medium-sized Corporation

    Jongho Kim | 2017, 5(2) | pp.211~261 | number of Cited : 3
    An employee stock ownership plan (ESOP) is an employee-owner program that provides a company’s workforce with an ownership interest in the company. The ESOP is a defined contribution plan, a form of retirement plan as adopted by IRS codes in U.S., which became a qualified retirement plan in 1974. Korea also adopted ESOP in 1968 by enactment of Capital Market Promotion Act and this system transplanted in the Framework Act on Labor Welfare states ESOP in 2001. In the ESOP, companies may provide their employees with stock ownership by preferential allocation with treasury stock, often at no up-front cost to the employees. The ESOP is one of the useful methods of employee participation in corporate ownership. ESOP shares, however, are actual part of employees’ remuneration for work performed. Shares are allocated to employees and may be held in an ESOP trust during certain period of time that required in law or until the employee retires or leaves the company. The shares are then sold to exit. Today, very narrow number of private companies, and it is conglomerates of case, are operating ESOPs that are structured as employee stock ownership association. Such corporations get some benefits including worker cooperatives, but unlike cooperatives, control of the company’s capital is not necessarily evenly distributed. Compared with cooperatives, ESOP-centered corporations allow for company executives to have greater flexibility in governing and managing the corporation. Most corporations, however, utilize stock ownership plans as a form of in-kind benefit, as a way to prevent hostile takeovers, or to maintain a specific corporate labor culture. ESOPs are regulated by Tax Code and Employee Retirement Income Security Act (ERISA), a federal law that sets minimum standards for investment plans in private industry in U.S. In a material way, Internal Revenue Code §404(a)(3) provides specific condition of benefit under the plan. In the U.S. ESOP, just as in every other form of qualified pension plan, employees do not pay taxes on the contributions until they receive a distribution from the plan when they leave the company. They can roll the amount over into an IRA, as can participants in any qualified plan. ESOPs, by definition, concentrate workers’ retirement savings in the stock of a single company. There is no requirement that a private sector employer provide retirement savings plans for employees. Therefore, ESOPs may concentrate workers’ retirement savings in the stock of the same company on which they depend for their wages and current benefits, such as health insurance. Some studies conclude that employee ownership appears to increase production and profitability and improve employees’ dedication and sense of ownership. However, employee stock ownership can increase the employees’ financial risk if the company does badly. Several researches show that ESOP companies are more successful than comparable firms and, perhaps as a result, were more likely to offer additional diversified benefits to the labor and management alongside their ESOPs. ESOP advocates agree that an ESOP alone cannot produce such effects; instead, the ESOP must be combined with worker empowerment through participatory management and other techniques. In this research, I argued how non-listed small and medium-sized corporation can use ESOP to get some benefits as possible. I proposed qualified employee should be expanded to collaborating corporation, more flexible stock option system for employee of ESOP must be introduced, and loan type ESOP have to be activated, etc. The focal point of my argument in the study is that the ESOP may produce wonderful effect if it is combined employee retirement pension plan.
  • 9.

    Current Status and Tasks of Higher Education by Laws concerning lifelong education

    HuNyun KIM | 2017, 5(2) | pp.263~286 | number of Cited : 4
    The fourth industrial revolution society is called a knowledge-based society based on information and communication technology. These knowledge-based societies are called lifelong learning societies that need self-development and adaptation for lifelong jobs rather than lifelong work. The 1980 Constitution stipulated the promotion of lifelong education as a national obligation. Higher education as lifelong education is implemented on the Bachelor's Degree Examination Based on Self-education Program based on the “Act on the Acquisition of Academic Degrees Through Self-Education”, Academic Credit Bank System based on the “Act on Recognition of Credits, Etc.”, Part-time Student System and Cyber University based on the “Higher Education Act” and “Lifelong Education Act”. However, as higher education as a lifelong education was operated in various ways based on various laws, problems about the quality of education and management of learner were raised. And for this reason, higher education as lifelong education was perceived as a means to easily obtain a bachelor’s degree. To solve these problems, each system and statute must be integrated. In order to strengthen the role of lifelong education, it is necessary to build and support a cooperative system for the continuous development of various contents.
  • 10.

    A Study on the Improvement of Special Breach of Trust on Commercial Law(Sec, 622)

    양동희 | 2017, 5(2) | pp.287~312 | number of Cited : 1
    This thesis is on the corporate crimes in Korean Corporation Law. Corporate crime means that corporate members commit to the illegal practices for the profits of himself or corporation. The corporate members are shareholders, directors, officers and other workers prescribed by section 622. of Korean Commercial Law. Recently, corporate crimes are increasing and repeating. The damages of the corporate crimes are very large and great. If we leave alone the situation, It will threaten national economy seriously. Nonetheless, the sections 622 on corporate crimes in Korean Commercial Law have been disregarded by scholars and the judicial world. I expect this thesis will contribute to prevent the occurrence of corporate crimes and to activate the studying of this fields. So that I proposed some opinions to revise criminal regulations of commercial law and I expect this study will contribute to the development of criminal fegulations of commercial law.