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2017, Vol.5, No.3

  • 1.

    A Study on the Current State of the School of Law and the Improvement Plan

    Hong, Tae-Seok | 2017, 5(3) | pp.9~36 | number of Cited : 3
    Abstract
    By 2018, it has been 10 years since the law school opened. The law school has developed a developmental growth despite receiving criticism from the public. Last year, the judicial examination took place in the back of history and now it is the only way to enter law school to become a lawyer. In fact, for many reasons the law school has had a lot of criticism, but it has developed a lawyer who has recently developed a lawyer from 9285 law school until recently. The introduction of the law school system indicates that the high priority of legal services has decreased significantly. Students from all walks of life are also admitted to the dream books. Existing law enforcement institutions have already accepted 40 universities, but the current law school system has already passed 102 schools, allowing lawyers to pass the law in a wider range of schools, which are now believed to be compatible with the intent of introducing law schools. Unlike previous judicial testing systems, the law school combines theoretical education and practical education with practical education. Despite the burden of students passing the bar exam in a short period of time, many students have already spent three years of their lives and are living in a legal profession. Meanwhile, it is true that a lot of rumors have been linked to numerous rumors, such as mass media and parental relations. In addition, the law schools provide a number of advanced methods to provide better quality education, such as creating a number of scholarships and introducing blind interviews. It is meaningful that this paper will review the problems of the law school and improve the development of the law school system in the future.
  • 2.

    The measures of Legal Education by Interdisciplinary Program in Korea- Focusing on French Law Education -

    sim min suk | 2017, 5(3) | pp.37~75 | number of Cited : 0
    Abstract
    It is true that our legal education is in a great crisis because of the opening of a law school. However, since the graduate school of law was inaugurated, it does not seem that the crisis in law education has come. I think that this is because there are not many merits that can be received as a law major in graduating from law school and entering society. This is because our legal education has been going too far and long for the education system to prepare for the judicial examination. However, when the law school is opened, our law education is transformed into an education system that prepares students to enter the law school again. In the case of the local universities that can not follow this, the law department is abolished or merged. First of all, the value of current legal education should be devoted to the training of lawyers. In order to do this, specialized theoretical and practical training should be provided to those who majored in law to be treated as professional intellectuals. Those who have completed at least B credits of the first examination in various qualifications need to be given the benefit of exemption from the first examination. As a person who has received college education, it is necessary to expand the subject of law related to law in higher education institutions so as to cultivate qualities such as criticism, universal love for human beings, sense of justice, understanding of others and spirit of tolerance as democratic citizens . Also, it is necessary to revise curriculum to enhance the legal sense of the elementary and junior high school students and democratic citizen consciousness. The law should not be exclusive to any particular class or class or legal expert. The law must be fully supported by the people and should remain alive in the people. This is for the realization of the rule of law and is the inevitability of the rule of law.
  • 3.

    A Contemplation on Community Service Programs as an Alternative to the Fine System for Criminal Case

    Yoon Hyun-seok | An,Sung-Hoon | Lee Young Woo | 2017, 5(3) | pp.79~100 | number of Cited : 0
    Abstract
    The community service program as an alternative to fines has been introduced as an alternative to the fine system apart from detention in work house according to the review on the problems of the current work house system. To overcome the problems of the community service and for activation of this system, legislation system has been reorganized for the execution to be based on criminal law. Further, improvements of laws through amendment of the current law, including establishment of duty of disclosure and regulation for extension of the period of community service, according to the circumstance have been proposed in this article. Further, the methods for securement of budget and staff for appropriate operation of systems, increase of unit price for execution for 1 day, relaxation of conversed times for community service, expansion of times for community service, provision of expenses for transportation and lunch to the subjects of community service for smooth execution have been proposed for execution and operation of the community service.
  • 4.

    A Critical Study on the Discussion on the Introduction of 'Clare's Law' as the Current Status of Date-crime and Prevention

    Park Hyun Jeong | 2017, 5(3) | pp.101~127 | number of Cited : 9
    Abstract
    Date crime has recently begun to appear as brutal and ferocious behavior. Therefore, there is a lot of discussion about its own sanction regulation. However, regarding the provisions of independent criminal sanctions, Initiated by a legislative body, the Legislation-Judiciary Committee worried the abuse of individual law and adhered to the idea of establishing a solution through existing laws or by amending existing laws. Thus, no special law on date crime has been adopted. In this situation, date crime is increasingly spreading and its behavior is steadily rising to constant, repetitive and brutal types of cases. Currently, there is no specific provision for date crime, so punishment for assailant or protection of victims relies on other laws. For this reason, the perception of the violence among the lovers and the passive coping of the investigation agencies are causing the social anxiety about the date crime. So the interest in date crime, it was suggested that a system should be established for prevention. In addition, discussions are underway on the introduction of preventive measures such as the 'Clare’s Law'. It is a scheme to prevent the violence of date crime by letting the potential victim decide whether to maintain the lover relationship by checking the violent criminal record of the potential offender. However, regarding the introduction of the 'Clare’s Law', there remains a need to resolve the issue of human rights violations under the Constitution of Information Disclosure System and the adverse effects of stigma effect in criminal policy. In other words, the disclosure of information should discuss not only the issue of human rights violation, but also the scope of authority to request information disclosure, the disclosure period of the criminal information, and the management and supervision of the disclosed information. For these reasons, it is considered premature to introduce a precautionary system for the protection of victims in the present situation in which there is no system for date crime. Therefore, from the perspective of constitution and criminal law, the possibility and necessity of introduction should be considered sufficiently.
  • 5.

    A Study of Treatment of Minorities in the Military Service System

    Woo-Taek Hwang | 2017, 5(3) | pp.129~162 | number of Cited : 1
    Abstract
    The paper compared three issues regarding treatment of minorities in the military service system in Korea and in the United States --- mixed-race issues, homosexuality issues and conscientious objection issues. First, regardless of race all Korean male citizens are equally treated with regards to military service enlistment. Second, homosexuality in the military service system of Korea is considered subject to two years or less of imprisonment according to Article 92-6 of the Military Penal Code. The paper proposes that at least Article 92-6 of the Military Penal Code of Korea should be revised to clarify the language and its application regarding the homosexual punishment. Third, conscientious objection exemption in the military of the United States is allowed by the Military Selective Service Act. On the other hand, in Korea conscientious objectors who refuse to join the military are imprisoned. The paper proposes that in Korea it is better to implement the conscientious objection exemption through legislation than by challenging the constitutionality of the existing law.
  • 6.

    The legal matters for a divorce by agreement

    Kim Sang-Myeong | 강봉현 | 2017, 5(3) | pp.165~191 | number of Cited : 0
    Abstract
    Unlike A divorce by trial, A divorce by agreement is possible according to consultation between parties of divorce parties' opinion. Thus, marriage relationship's rupture or liability etc are not matter. So, A divorce by agreement occupies the majority of divorce. Because not only are parties' private relationships protected and do child support issues get solved but alimony or division of assets also can be valid after autonomous consultation. Though A divorce by agreement can be abused by wealth, It has distinct characteristics that can resolve in-lows based on today's improved women's social positions and unconstrained opinion about divorce between husband and wife. Therefore, because also a divorce by agreement brings solution of marriage, marital status, liability of cohabit, duty of support, duty of cooperation and relationship of marriage settlement etc are perished but rearing children, decision of person with parental rights, visitation right, claim for division of property and others occur.
  • 7.

    The Reconsideration of the Share of Spouse's Inheritance

    Kim, Sang Hyun | 2017, 5(3) | pp.193~209 | number of Cited : 2
    Abstract
    Currently existing the share of the spouse's inheritance, in other words, after having an observation on the Civil Code Section 1009 Clause 2, which includes the share of the inheritance from the inheritee's spouse that will be added by 50 percent of the inheritance's share from a lineal descendant, if there will be a common share with the lineal descendant, and will be added by 50 percent of the inheritance's share from a lineal ascendant, if there will be a common share with the lineal ascendant, i consider that the share of spouse's inheritance loses the validity on the practicality for the following reason. Firstly, these days' circumstances, which has a reinforcement in the couples' relation because the average life expectancy has increased, also with a modification of consideration on the patriarchy society, there is a settlement of equality between husband and wife. Secondly with a modification of family structure, there is an aggravation between parents and fully grown children. Thirdly, unbalanced on the legal settlement principle from the relation of couples' asset and lastly, the decline in the share of the spouse's inheritance consequent on a number of coheirs. Consequently, a legislation, which can be connected to the legal principles of settlement if there is a divorce suit, need to assure the practicality and propriety of the share of the spouse's inheritance.
  • 8.

    The “res ipsa loquitur” Rule as a Reduction of Burden of Proof

    Jongho Kim | 2017, 5(3) | pp.211~248 | number of Cited : 3
    Abstract
    In the law suit, the rule of torts act that a plaintiff is responsible for proving a defendant’s fault is a severe burden on the plaintiff if the plaintiff does not know the exact act of damages, especially if the act is related to highly specialized knowledge of the defendant. In this case, the plaintiff can hardly guess whether the defendant has any obligation to state or where to seek a breach of duty from a series of defendant’s actions. In order to save the difficulties of the lawsuits of these plaintiffs, Korean procedural law has been estimating the defendant’ negligence for a long time for the benefit of plaintiff’s burden of proof. If proving certain facts or results, plaintiffs have committed their burden of proof with it, and thereafter, the so-called “res ipsa loquitur” rule in which the burden of proof is transferred to the defendant, has been applied and tends to be widely accepted in the field of medical accidents suit. On the other hand, in the United States, it plays an important role in alleviating the burden of proof of the plaintiffs, such as the ‘res ipsa loquitur.’ If defendant’s negligence is not found, it can be easily found that damages occur in a situation where it is unlikely that such a case will occur. We may think that there is a fault with the defendant and judges the defendant’s fault based on the occurrence of damages. In this situation, the plaintiff is free from the burden of proving the strict fault that the defendant should designate and act on the fault. As a plaintiff, it is only necessary to prove the occurrence of damages. The presumption of our inaccuracy and the ‘law of error estimation’ in the English law are not exactly the same in their essence and concrete application. At the same time, however, it has the function of separating the activities with certain negligence from the framework of traditional fault responsibility, and putting them into the framework of virtually no responsibility. It is the plaintiffs’ responsibility to bear the burden of proof in the United States, where a widespread evidence collection procedure is adopted and, in principle, the proof is preponderance of evidence is considered sufficient. However, it is particularly problematic in cases of contemporary litigation such as pollution lawsuits, product liability litigation, medical malpractice lawsuits, etc. Therefore, in the United States, the law of reducing burden of proof has been developed in the case law, and the representative one is the theory of prima facie case of ‘res ipsa loquitur.’ Thus, in the United States, the res ipsa loquitur theory is widely used in court practice as a legal principle to reduce the burden of proof of plaintiffs in modern cases. However, there is still controversy about the legal nature of the United States and its subsidiary in the United Kingdom, and analysis from the legal and economic point of view is being attempted. Therefore, this study will examine the theory of res ipsa loquitur. Many US precedents allow us to take advantage of the law of res ipsa loquitur. In the United States, there seems to be based on the idea that the burden of proof is centered on the responsibility of submitting evidence, but from the perspective of minimizing the cost of misrepresentation of law and economics or the cost of relative evidence. This is a very interesting debate.
  • 9.

    A Study on Domestic Violence in Multicultural Families

    Jeon Myung Gil | 2017, 5(3) | pp.249~269 | number of Cited : 2
    Abstract
    Our society has recently changed into a multicultural society, and a variety of problems arise due to the shift toward multi-cultural societies and increasing foreign workers. However, it is difficult for multicultural families to adapt to Korean society because the perception of multi-cultural societies and multicultural families is still lacking and social prejudice exists in multi-cultural families. Despite the fact that domestic violence in the multicultural families has reached a serious level, it is urgent for victims of domestic violence to cope with victims of violence and violence, and to devise measures for improvement. The problem of multicultural families in multi-cultural families is that the uniqueness of domestic violence in the special circumstances of multi-cultural families and families requires a multidisciplinary approach to analyzing the phenomenon and causes it to be analyzed. First of all, it needs to revise domestic violence laws, and require mandatory adoption of interpreters in the process of dealing with domestic violence and expand the adoption of the victims ' lawyers. Also, it is necessary for local autonomous governments to make mandatory support for domestic violence victims in support of support for the support of multicultural families. It is requested to actively reflect the characteristics of multicultural families in order to enhance the effectiveness of multicultural families in the prevention of domestic violence and policy and implementation of policies and measures to support them.
  • 10.

    A Study on the Concept of Set-off Contract among Several People - In Reference to the French Civil Code revised in 2016 -

    won, sang-chul | 2017, 5(3) | pp.271~288 | number of Cited : 0
    Abstract
    The set-off contract is a contract that plow under mutual debts as much as as the equivalent, if several persons have mutual debt. This is a kind of onerous contract that is recognized under the principle of freedom of contract, and takes effect when the manifestation of will between the parties is agree. The contract, which is a kind of legal action, is established to be consistent with two or more conflicting manifestation of wills. But the set-off contract is consistent with declarations among several people that have common-purposed to plow under mutual debts as much as the equivalent. However, it is doubtful whether it is appropriate to classify these set-off contract as general contract. Under the revision, the French Civil Code revised in 2016 divides the Legal action into two separate actions, namely convention and unilateral action. Japan has manifestation of will among several people, but is becoming a matter of whether or not to classify, if they can't say that they're in conflict with each other. Although there is a discussion about the set-off contract in Korea, it is true that the discussions are quite lacking. I think it is rather reasonable to define as a “set-off convention”, considering convention with a broader concept included a contract. A unilateral action result in legal effect based on the rules of law or the authority conferred by the Parties’ convention. Under the revision, I believe that the contract and joint acts can be accurately positioned throughout the entire debt law, under the category of convention that produce the effects of a legal action. As you can see in the revision of the French Civil Code in 2016, I think it is necessary to re-examine the status of the set-off contract, but The review of the term meaning the contract still remains a challenge.