Legal Theory & Practice Review 2021 KCI Impact Factor : 0.87

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2018, Vol.6, No.3

  • 1.

    A Practical Study on the Protection Status of Trade Secrets of US Companies

    CHUN YONG TAE | 2018, 6(3) | pp.9~48 | number of Cited : 5
    Nowadays, Korean company’s overseas expansion is remarkable, and there are lots of regions where we have advanced in many places but have deep economic ties. In this situation, researches and studies on trends of trade secret protection in the United States have very useful significance. Therefore, this study examined the research and study on the trend of trade secret protection in the United States. The purpose of this paper is to provide meaningful information to lawyers about US trade secret protection in order to provide information on US trade secret protection. So this article explains the US protection status based on the Defend Trade Secrets Act of 2016, which was enacted in May 2016 in the United States. First of all, the United States, based on case law, examines the characteristics of the US legal system, which is considered to be beneficial for understanding trade secret protection in the United States, in view of the different laws and laws of the United States based on continental law. The results of reviewing practical trends of protection are discussed. The leakage of trade secrets is increasing due to internal corruption of people who can easily access information originally. It is impossible to completely prevent leakage to the outside regardless of technical and physical management within the enterprise. First, it is necessary to identify where confidential information is located in the enterprise, to evaluate whether the protection situation is sufficient, and to review necessary measures by referring to the trade secret management guidelines or international standards. Keeping trade secrets and leaking is also an act that people do. In addition to technical and physical measures, human resources management is very important for information security measures. It is also important to take appropriate measures in advance from the perspective of how effective legal action can be taken when a leak occurs. If there is a suspicion of leakage of trade secrets, it is necessary to identify the facts and make a firm response.
  • 2.

    Burden of Proof Rules, Findings and Explanations

    Borhanian, Shahin | 2018, 6(3) | pp.49~84 | number of Cited : 0
    Absolute conviction in the re-creation of facts at a trial ex-post and ex-situ is impossible and there is always a level of uncertainty. In the United States evidentiary and constitutional requirements establish several standards of proof to assist decision makers at trial to reach a conclusion when the evidence is uncertain, which correspond to three decisive levels of certainty, depending upon the particular categories of litigation in which they are applied, to ascertain either what “(a) probably has happened, or (b) what highly probably has happened, or (c) what almost certainly has happened.” The policies that commonly justify reliance on the burden of proof rules are functionally to (1) reduce the total risk of errors or particular types of errors and (2) properly allocate any remaining risk of errors among the parties. The common-law burden of proof rules as presently applied and interpreted fail to ensure decisions that uphold, standardize and balance the worthy policies of accuracy and fairness, which is particularly troublesome with respect to heightened burden of proof in criminal trials when life and liberty interests are at risk, and the intermediate burden of proof is implicated, such when civil fraud is alleged. A promising suggestion by Michael S. Pardo is that fact finders’ decisions on the probabilities be guided by second-order explanatory rules that reverse the inferential process, calling for decision makers to infer conclusions based on how well each proposition, if true, would explain the evidence.
  • 3.

    Whether the Double Contract of Real Estate constitutes Breach of Trust

    Jeon Myung Gil , Lee Young Woo | 2018, 6(3) | pp.85~105 | number of Cited : 3
    Although there is a conflict between the use of rights and the provision of trust according to criminal law, all default debtors can be granted a breach of trust due to their violation of their duty. Therefore, the organization requirement should be interpreted strictly, and the court precedent is based on a limited interpretation of the requirement for the composition of breach of trust, and there are different cases concerning the recognition of the double sale of real estate. Considering the special property of the real estate in Korea and the trade practice, if the government does not have sufficient measures to prevent the double sale of the sellers, it will consider double sale of the real estate. It would be fair to punish a double sale of real estate for breach of trust, and the social need for the punishment would also be admitted, given the lack of trade objective protection and the incompleteness of the victims. However, the intervention of criminal law in the legal field should be minimal as a last resort. The judicial regulation of the judicial trading area requires a civil law system to prevent double sale of malicious real estate and the regulation on double sale is the legal domain.
  • 4.

    The Restorative Justice and the Role of Lawyers

    MoonKwi KIM | 2018, 6(3) | pp.107~133 | number of Cited : 3
    Restorative justice has emerged as an alternative to the problems and side effects of the traditional criminal justice system and has been the driving force of criminal justice reform around the world for over 40 years. The process of restorative justice involve a variety of people including victims of crime, perpetrators, their respective families, mediators or facilitators, community members, police, prosecutors, lawyers, judges and officials of correctional services. The scope and role of the participants in the process depend on the specific situation in which the restorative justice program is implemented and on the specific model of restorative justice. But, all participants should play a role in planning new restorative programs, or in augmenting or strengthening restorative justice elements. The purpose of this study is to discuss the position and role of lawyers in the implementation of restorative justice, which is not covered in previous studies. In this study, first, the potential risks and problems inherent in restorative justice practices were discussed and the relevant necessity of lawyers was examined. Next, we talked about when lawyers should intervene and what role they should play in the implementation of restorative justice programs. Finally, we discussed the extent to which the lawyers' participation would be acknowledged in relation to the implementation of the south korean restorative justice systems, and discussed how to institutionalize lawyers’ participation. As a result, the role of lawyers in resolving the potential risks of restorative justice, ie, the risks associated with the victim, the problems of process lacking formalism, and the problem of power balance, can be said to be large. With regard to the manner of lawyers’ intervention, they should not be involved in the restorative process as representatives of the parties in stake. Instead, they should participate as an assistant or observer who consult the parties on the legal side. With respect to the timing of their intervention, the lawyers does not have to be present throughout the restorative process, but rather should be done before and after the restorative meeting between the parties. In regard to such involvement of lawyers in restorative justice process, there is no need to legislate the role of lawyers in South Korea. In stead of legislation, the qualification of lawyers and their intervention timing in restorative justice process should be discussed .in the practical level
  • 5.

    The acquisition of Air Rights by the normalization of Drones and the scope of the Effect of Land Ownership

    Kim Seung Rae | 2018, 6(3) | pp.137~174 | number of Cited : 5
    In the modern society, the expansion of land use due to the increase of population and the development of science and technology is caused by the physical shortage of land coming from the limited resources of the land and the economical factor Land shortage problem. As a means to overcome the shortage of land due to such urbanization, the problem of using the land in a three - dimensional way is raised and the problem of intensification of land use is raised. Therefore, the necessity of the development for securing the public space and the underground space of the land is emerging, and the legal scope of the land ownership and the establishment of the jurisprudence about the public land becomes the important legal task. The debate about the 'Fourth Industrial Revolution', which is hotly debated in our society, is affecting all industrial sectors and is emerging as one of the most important research tasks of national industrial policy. As one of the core technologies that will lead the fourth industry, drone is attracting attention and it is entering the commercialization stage. Drones' representative UAV market is no longer a future market. According to Gartner, a technology forecasting specialist, the global drones market last year exceeded $ 4.5 billion in sales and sold 2.15 million units. As the drones become commercially available, many technical improvements have been made, and many legal issues regarding the operation of drones are being raised. The purpose of this study is to examine the policy direction of drones in each country as a premise for examining the legal problems caused by the commercialization of drones, to examine the use of land by the drone as an unmanned flying object, As a basic right, we examined the scope of the land ownership and discussions on the controlled airspace in aviation law.
  • 6.

    Problems and Improvement of Parental Support in Civil Law

    park | 2018, 6(3) | pp.175~208 | number of Cited : 1
    In Korea, due to the continued low birthrate, the elderly population has increased, and in 2021 which is three years later, the age of super aged society is emerging as a new problem how to support many old parents. The main reason of super aged society is the low birth rate, but due to the remarkable development of medical technology, the life expectancy has been greatly increased, and the economic burden of supporting a large number of elderly parents by small number of beneficiary has been greatly increased. Thus, the issue of dependency is of the utmost concern as a matter of urgency to be addressed in entering the super aged society. Like this, in recent years, the dependents awareness of elderly parents who can be seen as the interaction through human history has become a condition that families cannot fulfill their roles and the state and local governments are burdened in the social public welfare. However, as the conflict is on the rise, the problem of supporting the elderly is expected to become a big problem for the home and the nation in the entering the age of the super aged society. In relation to this, Korea is defined the private support in Article 974 of Civil Law that between the lineal relation and the spouse by priority, and secondary the other relatives who only make a living with them. Under this provision, supporting the parents is subject to the principle of personal support duty, and the range of support that a family member or individual can be responsible for is weaker than public support. They are also more likely to flee the burden of care for their elderly parents. This means that old parents can face a situation where they cannot enjoy "the right to live a human life". Therefore, in this study, as the study on the general private support for old parents, analyzing first the theoretical basis of the support system for the old parents under the civil law, and then analyzing the problems of the support system for the elderly parents through the legislation of each country. Based on this, I would like to suggest a reasonable improvement plan for the support of the elderly parents.
  • 7.

    The Act of Disposal and Intend of Disposal in Fraud

    Seungeun Song | 2018, 6(3) | pp.209~230 | number of Cited : 1
    A person who defrauds another, thereby taking property or obtaining pecuniary advantage from another, shall be punished by imprisonment for not more than ten years or by a fine not exceeding 20 million won. For fraud to take place, there must be deceptive behavior, error and disposition of the defrauded person, the pecuniary advantage or property, and the occurrence of damage. The act of disposition refers to the act or omission of a person who causes the damage directly to the property based on the will. Disposition acts as a component element that is not described, and functions to link the requirements of fraud, such as error and property damage. It is also necessary to dispose of fraud as an element of disposition to distinguish fraud as a self-damaging act from theft as a damaging act. Fraud is an offense that essentially involves deceiving a defrauded person without knowing the consequences of the disposition. And the nature of fraud, which is a self-damage offender, does not require recognition of the consequences of disposition. So the disposition behavior awareness theory is valid. In the cases of signature swindling and refund fraud the defrauded person is aware of the fact that he/she is signing and sealing the disposal document or acting as an ATM. In this cases, the intention of disposition is recognized and a crime of fraud is established. In the latter case, ‘the special act on the prevention of loss caused by telecommunications-based financial fraud and refund for loss’ is applied before the Criminal Code.
  • 8.

    An Exploratory Study on Criminal Responsibility of Self-driving Car Accident Type

    Hong, Tae-Seok , Kwon Yangsub , Byong Sun Kwack and 1 other persons | 2018, 6(3) | pp.231~252 | number of Cited : 6
    Abstract PDF
    Most traffic accidents are caused by the driver's fault. If self-driving cars are commercialized, such accidents can be prevented due to driver error. However, even a perfect self-driving car cannot deny the danger of accidents.  The self-driving car accident types are expected to include accidents caused by intentional negligence of the driver (owner), mechanical failure of the vehicle, accidents caused by software malfunction, accidents caused by incorrect information, and accidents caused by hacking. If a self-driving car is involved in an accident while driving, the problem of legal responsibility is different from that of a car accident. We are asking for a new solution. Among the various legal issues, the least solvable is the issue of criminal punishment. The question of whether or not a self-driving car accident is a matter of science. It is a matter of normality, and especially criminal liability should be addressed in relation to the principle of liability, which is the basic principle of criminal law. From level 1 to level 3 of self-driving mode, a person (driver) becomes the main body and cars are driven. In the event of a driving accident, there is no legal problem in implying the responsibility for the accident to the driver as it is now. However, in level 4, there is no driver for self-driving cars. All passengers are merely in position. To impute a driver to a criminal negligence according to the existing law would be contrary to the criminal responsibility.  In this paper, we looked at the concept of self-driving cars and their current technology. The accident patterns that may occur if self-driving cars are commercialized were investigated. After analyzing the criminal liability for each level of self-driving cars, we looked at each criminal law issue.
  • 9.

    A Study on Restorative Justice System as Prevention and Countermeasure for School Violence

    Lee, In Gon | 2018, 6(3) | pp.253~292 | number of Cited : 8
    Abstract PDF
    The problem of school violence of youth is not merely an act of deviance of the individual, but a social problem that our community must solve as a top priority. In recent media reports on juvenile school violence have been published on newspapers and on portal sites. The people who were angry at school violence filed petition on the Blue House website to abolish the Juvenile Law, and 270,000 people agreed, resulting in a huge societal aftereffects. The community does not understand politely. The countermeasure is a reality that ignores violence and reality. At the end of 2011, a fraud case of Daegu secondary school students announced a policy to eradicate school violence in 2012 in order to preserve its root cause. I will raise the violence right now. Discriminatory treatment of the ongoing legislation is intended to emphasize the importance of the legislation. Therefore, in this study, how is the direction of school violence and genuine restorative judicial justice established at the present time when the paradigm of the national criminal justice system is shifting from the victim-centered traditional criminal justice system to the offender-centered criminal justice system? What is the significance and effectiveness of combining and supplementing the traditional national penal rights with the ideology of restorative justice as serious school violence prevention and control measures? In addition, through the review of the current Criminal Justice Law, it is necessary to prepare a plan that can bring substantial change by presenting a desirable direction to the school violence prevention policy.
  • 10.

    The Cross Interpretation of the Humanity and Violence with the Law and Society and the Legal Philosophical Perspective

    Jongho Kim | 2018, 6(3) | pp.293~326 | number of Cited : 0
    Theodore W. Adorno is a Jewish German philosopher who says that he lived with the ‘experience of violence’ of Nazism throughout his life and felt violence in various phenomena. Adorno’s point was that ‘violence is a ubiquitous world.’ For him, a life after Auschwitz would have meant that a variety of violence in daily life would have to be experienced under the associations in Auschwitz. It should be interpreted that the well-known phrase ‘to write poetry after Auschwitz’ is a barbarity. There is constant conflict, terror, and murder in the world, and human violence toward the same race is accepted as a human being, and it can be criticized in terms of social evolution. This paper has attempted a critical review of the paper by Professor Wilfried Gottschalch of the man and violence (Menschlichkeit und Gewalt). The struggle in nature is very simple and clear. This is due to the acquisition of food and the act of leaving genes. Chimpanzees and other infanticide killings can also be understood as strategies to bring their genes to the posterity in the first place. The formation of the herd, the contents of the formation, and the choice of solitary action are also aimed at this acquisition. But human beings are greatly different. Especially since the beginning of agriculture, occupation of land is important and the difference from the natural world becomes clear. They have struggled with other villages in order to occupy and expand farmland. Because the dispute took place among the groups, the disputes were so incomparable to those of the natural world. Group relations appeared in various categories such as religion and country as well as agricultural villages. And now, as the modernization progresses, it is possible to have a big victim even in one fight. The same is true of wars and it also has a variety of victims. This fight can not but be said to be human-specific. However, it will be said that it is a stable acquisition of food and sex as in nature. This article presents the origin of human violence, and furthermore, it has highlighted the uniqueness of violence in humanity. However, instead of mentioning its solution, it was replaced by a discussion of humanity. For as long as life is maintained, the solution will remain an eternal task.
  • 11.

    Limitations to judicial dispute resolution and collaborative research between law and psychology

    Oh, JungYong , 김성은 | 2018, 6(3) | pp.327~344 | number of Cited : 0
    The main areas of collaborative research between the fields of law and psychology are within criminal law, and the primary focus is upon witness memory, testimony, statements, mental emotions and sexual abuse. In recent years, proposals have been made for an expansion of this collaborative field to include civil law, in order to deal with sensitive issues such as divorce settlements involving minors, and legal limitation periods in child sex abuse cases. Judicial resolution is based on rights and obligations, however the current judicial system is only required to present a solution to legal conflict. Whether or not the dispute is resolved in reality is a matter for the parties to solve afterwards on their own terms. So while a dispute could be said to be ended by judicial resolution from a legal point of view, human relations between parties can remain unsettled. If a victim’s psychological conflicts are not fully overcome, or a perpetrator has not fully realised their guilt, dispute still remains. Therefore, interpersonal disputes need to involve not only a legal approach, but a psychological one in order to achieve a more complete resolution.