Legal Theory & Practice Review 2021 KCI Impact Factor : 0.87

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2019, Vol.7, No.2

  • 1.

    A Historical Study on the Basic Pension to Prepare for the Pink Society - Focusing on the basic pension plans developing in Japan and Germany -

    Jongho Kim | 2019, 7(2) | pp.9~35 | number of Cited : 0
    The debate over the basic pension system came earlier than the birth of the public pension system itself. The debate is continuing to the present time that it is repeated in the reform of the pension system. The German case is typical. However, the basic pension does not go along with social insurance schemes or taxation schemes - this alternative is not just a matter of financing. It is a question about the ideology of social security, and also about the purpose and direction of basic pension. The basic pension of the full taxation system is often a problem with the relationship with public assistance. The problem of how to distinguish between the two, the amount of pension benefit and the level of standard of living is also being actively discussed in Korea as in Germany. The ideology or purpose of social aid is in the state of poverty, and social insurance is based on the idea of ​​social solidarity. Financial support also divided into two, social aid based upon tax and social insurance relied upon premium. There is also a difference in whether or not the money is spend, although the social aid contributes self-financing, but the social insurance takes place jointly. In addition, the range of beneficiaries is very different from that of social insurance, which is narrowly limited to low-income individuals in the case of social aid, and covers insured persons as a broad target. The level of benefits is also the minimum level of social aid, and social insurance is the optimal level based on a balance of needs and premiums. Moreover, social assistance and social insurance have big differences in economic effects such as life stabilization effect, income redistribution effect, employment creation effect and consumption expansion effect. The basic pension should be covered by the full amount of tax. The basic pension should be covered by the full amount of tax. That is, the de-insurance is the social disadvantage approach of the public pension. If one represent public assistance for herself livelihood protection, the national pension is a social insurance representative based on social solidarity to meet the purpose of the National Pension Act. It is one of the implications of the transformation of the joint solidarity system, which is the basic pillar of social security in Korea. The discussion in this paper which examines these differences in detail will provide a basis for future reforms of the Korean pension system.
  • 2.

    The Improvement of the current Refuge Act

    Kim, Jong-Se | 2019, 7(2) | pp.37~59 | number of Cited : 5
    The nation's policy or legislation on refugees is a very sensitive debate. The immigration policy, which is currently being dealt with in Korean society, consists of foreign workers' labor policy (immigration labor policy), marriage migration policy, overseas Koreans policy, immigration education policy and refugee policy. Individual legal grounds are provided for such policies under the national legal system. In other words, the Act on the Employment of Foreign Workers, the Multicultural Family Support Act, the Overseas Koreans Act and the Refugee Act are enacted. In particular, the most recently enacted Refugee Act was enacted in 2012 and has so far been in normative effect, and the government is implementing it on this basis. Of course, it has made several revisions as a practical or policy improvement measure. However, in light of the fact that improvements to the Refugee Act have been mentioned, I would like to address some of the research papers. Although the definition of refugees is stipulated in the nation's current refugee law, there seems to be no debate on the concept definition, in practical applications, the Korean government may not be an easy law to apply while understanding the feelings of its own people, its international image or its international political meaning. In this sense, although the normative efficacy of the refugee law through constitutional interpretation has important implications, there are still improvements to the application in Korean society and discussions on immigration policy and immigration legislation should be continued. Thus, although several revisions have been made to the Refugee Act, this research paper aims to present reasonable improvement measures by looking at the period of examination and objection application, social adaptation education and treatment, and the period of administrative litigation.
  • 3.

    A Legal Study on The Right of Care Management In The Long-term Care Insurance System For The Elderly

    Hwang Jung Hoon | 2019, 7(2) | pp.61~79 | number of Cited : 7
    There is a long-term care insurance system as a welfare policy to cope with a super-aged society, and the importance of care management is gradually increasing as a constituent of this. We will look at the contents of the recently announced plan for promoting community-based caregiving in relation to care management and review the problems. Care management for the elderly is not limited to a single field, but has a broad character that covers prevention and follow-up care throughout the daily life. This requires that institutions should be established and implemented in order to enable the elderly to live independently and autonomously not only physically but also mentally based on the organic linkage between home and community. In order to provide care management consistently and efficiently, policy formulation and resource allocation need to be centralized. The realization of this is the establishment of the Regional Comprehensive Support Center in Nursing Care Insurance. The regional comprehensive care system is a local system that enables various services such as medical care and nursing care to be appropriately provided. In order to realize the normalization ideology, which is a society where all the elderly and the disabled live together, and to provide the services according to the individual's mental and physical condition, the service supply system in terms of the function differentiation and integration need of medical care and nursing care Respectively. It is desirable that the infrastructure of the service delivery system be decentralized in order to identify various needs of elderly people who need services and to provide appropriate services. Therefore, in order to strengthen the management function for comprehensive elderly people in the region, we will carry out local support projects and focus on preventive care, so as to provide comprehensive support for care prevention and care services and support for family care. It is important to have a system that enables people to continue living in a stable area through the implementation of community-based services.
  • 4.

    Claim for damages of Forced Labor Victims and Extinctive prescription

    Kim Seung Rae | 2019, 7(2) | pp.81~116 | number of Cited : 0
    On October 30, 2018, the Supreme Court sentenced the victims of forced labor in the Japanese colonial period to a very meaningful judgment on the right to claim damages. The press has posted articles that are welcomed at the same time and evaluated such as 'the day of restoration of the judicial sovereignty of the Republic of Korea' and 'a progressive judgment in guaranteeing the basic rights of the people'. It is meaningful that the judgment of the judgment case of the present case formed the independent judgment based on the interpretation method of the Korean Constitution, the civil law and the international treaty on the same issue which was decided in the Japanese court. The ruling is based on the fact that the right to claim for damages arising from anti-humanistic illegal acts, colonial ships and tortious acts committed by the Japanese state power is not included in the object of the one-day claim treaty. In addition, it can not be said that the prescription of extinction has been completed because it is reasonable to say that the victims of the forced and compulsory victims were unable to exercise their rights until the courts of the Republic of Korea filed the complaint, and the plea of Nippon Steel Corporation, And that it can not be tolerated as abuse of rights. Furthermore, the defendant's claim that the military company of the Japanese colonial period can not be seen as the company at present is the logic of applying the Japanese law, which is to deny the company's debt to the people of the country, According to the law, the corporation can be recognized as the same, and the defendant's liability has been succeeded to the present defendant. Finally, it was concluded that the victims of forced compulsory death in Japan could not approve the loser judgment as contrary to the good customs of the Republic of Korea or other social order. The ruling can not be regarded as a historical judgment in which the Japanese corporation declared damages for illegal acts to the victims of forced labor in the Japanese colonial period in 73 years after the liberation. In addition, it is emphasized that not only Korea but also other East Asian countries that have illegally occupied Japan due to illegal occupation can be brought to similar lawsuits, and at the same time, will act as a leading ruling for the settlement of the erroneous past history of Japan. I want to emphasize.
  • 5.

    Examination of legal regulation of harmful program such as computer virus - Focusing on US Legislation and Cases -

    Kim, Hyeong-seok , CHUN YONG TAE | 2019, 7(2) | pp.119~152 | number of Cited : 0
    The start of the virus is exactly from the end of 1987. In October 1987, a virus named Brain was found at the University of Delaware. The Lehigh virus was found at Lehigh University in Pennsylvania on November 18 of the same year, and the Jerusalem virus was found at Hebrew University in Israel in December. Since then, computer viruses have increased tremendously. In this regard, computer users are coping with computer viruses as a way to prevent the spread of computer viruses through antivirus programs, which are programs to diagnose and treat computer viruses. However, as concerns about the security weakness of major components of cyberspace continue to increase and market forces alone are not providing economic incentives for cyber security, and it including regulatory incentives that governments can take Policy alternatives for. Therefore, this article discussed the results of the review of Article 1030 of the United States federal law regarding computer misappropriation, and then examined ways to combat virus crimes in each state computer crime. The results of the review were discussed focusing on the provision of certain provisions in the enactment law. In addition, a detailed case was reviewed and the process of Melissa case was reviewed in time order.
  • 6.

    A Study on the Regulation of the P2P Lending Market - Focused on investor protection -

    Lee, Kyung-Min | 2019, 7(2) | pp.153~178 | number of Cited : 4
    P2P lending refer to services that provide necessary funds and loans between individuals on an online platform without going through traditional financial institutions such as banks. Since 2015, the P2P lending market has been rapidly developing around the world, focusing on Britain, the United States and China. The size of the nation's P2P lending market was estimated at 3.17 trillion won as of the end of December last year. The market for P2P lending, developed by meeting the diverse needs of financial users based on fintech technology, is causing losses to investors through moral hazard such as corporate fraud, embezzlement and so-called diversion. Accordingly, there has been an urgent need to impose appropriate regulations to protect investors and other financial consumers. Financial authorities have established and implemented P2P guidelines to regulate the over-growing P2P market. However, due to problems such as fraud and embezzlement by small and medium-sized companies and large companies in 2018, the company has recently revised the guidelines to strengthen investor protection, while trying to foster and develop the market for P2P lending, a fintech financial innovation market. The P2P guideline is only an administrative map and there are limitations in regulating the P2P market. Therefore, the government and industry are constantly raising the need for legislation to replace this guideline. The P2P lending-related regulatory legislation would be rational in the form of separate legislation considering the characteristics of the P2P lending market, and it would be reasonable to ease entry regulations to promote growth in the P2P lending market. And the regulation of business practices should strictly prohibit the strengthening of disclosure regulations, the prohibition of exaggerated announcements, the obligation of explanation, the practice of trustworthiness and conflicts of interest in order to protect investors. In addition, the investment should be limited to general investors and the investment reserve should be managed separately to prevent the investor from incurring moral hazard.
  • 7.

    Suggestions for the Efficient Operation of the Autonomous Police System

    Park Hyun Jeong | 2019, 7(2) | pp.179~200 | number of Cited : 3
    With the announcement of the government 's position on the mediation plan for the investigation authority of the prosecution and police in 2018, with regard to investigation authority, discussions about changes in the prosecution and the police are lively. The government has included a report on the operation of the autonomous police system in the mediation plan for the investigation authority. When looking for the historical flow of the police system in Korea, the National Police System was implemented under the influence of the Continental Law System. However, in 2006, the autonomous police system was operated in Jeju island with consideration of its regional characteristics. In previous governments, with the decentralization system, the discussion on the autonomous police system continued, but the introduction of the system was not easy. By distributing the authority and power of the police administration, which has been concentrated in the central government so far, to reflect the position of local governments and local residents as much as possible, and to provide community service and public service appropriate to the local community, the operation of autonomous police system is predicted. Therefore, it is not the opposition between police rights and citizenship, but the advantage of the Anglo-American law police system. The police rights and citizenship are partnership and maintains close relationship with citizens, emphasizing the role of security and public service rather than command and enforcement. As of 2019, the autonomous police system has been in operation in several cities, mainly in Seoul and Sejong City, including Jeju Island, which is already in operation. In 2020, it is preparing to be implemented nationwide. The problem is that there are some issues to be addressed regarding the operation of the autonomous police system. In order to operate an efficient autonomous police system, below issues will be solved. such as the issue of the construction of the new police education system that matches the characteristics of the autonomous police system, standard of autonomous police system introduction unit, scope of office work distribution of national police and autonomous police, financial burden for the administration of autonomous police system, in connection with the granting of investigation authority, the responsibility of the national police and the autonomous police, and the problem of political neutrality by local indigenous forces
  • 8.

    The Case Study on the Application of Restorative Justice in Sexual Assault Offenders - focused on Circles of Support and Accountability -

    Kim, Moon-Kwi | 2019, 7(2) | pp.203~225 | number of Cited : 1
    The traditional response to sexual violence crimes around the world is stronger punishment based on retributionism and correctionism, and strengthened post-management of control and quarantine. Through this, general prevention and special preventive effects pursued by the existing criminal justice system. Despite the seeming effects of such a policy that focuses on thorough control and isolation of sex offenders, the fears and anxieties of the sex offenders of the general public do not seem to diminish much. This phenomenon suggests that punishment, control, and quarantine-based approaches to sex offenders do not strengthen the safety of society, but rather only reinforce the fear of crime, and further strengthen the side effects such as increasing social unrest and breaking community. It is a criticism. In addition, the existing criminal justice policy focuses on the punishment and correction of sexual assault perpetrators, and the need for victims of sexual violence, the guarantee of rights based on them, and the recovery of damage and the healing of wounds are still considered to be neglected or secondary high. In the end, it is necessary to seek alternative measures for recovery of victims of sexual violence and social reintegration of offenders who can overcome the limitations of existing criminal justice system. In the case of foreign countries, programs and systems based on the restorative justice ideology, which has emerged as one of the innovative criminal policies since the mid-1970s, have been used for the restoration of the victims of sexual violence crimes, prevention of recidivism and social reintegration of offenders, And the effectiveness of programs and systems has been proven empirically. This study examines the characteristics and contents of the circles of support and accountability', known as effective restorative justice programs for sexual offenders, focusing on the social reintegration of sexual offenders through the active intervention of the community in the restorative justice program applied to sexual violence crime. and we would like to examine the applicability of restorative justice to sexual offenders.
  • 9.

    A study on necessary conditions of the “Principle of Trust” for an medical act

    Joung Soon Hyoung | 2019, 7(2) | pp.227~256 | number of Cited : 0
    The principle of trust is that if an actor trusts the victim or a third party to do the right thing in doing the act, it is a principle that he or she does not take responsibility for it even if the victim or the third party’s inappropriate behavior occurs. This principle is characterized by denying the establishment of the obligation to pay attention to the obligation to anticipate or avoid the consequences, even though it can virtually deny the predictability of the outcome. At this point, the application of the principle of trust and the review of its requirements will enable the realization of the obligations of the attention within the scope of the application of the principle. Although the principles of trust have been developed in the field of traffic crime, the scope of application of the principle of trust has been raised recently in team medical care. In this article, discussion on the application of the principle of trust in medical activities in Japan and Germany. After determining the applicability of the principle of trust in the conduct, it is aimed to grasp the application requirements of the principle of trust in Yokohama City University Hospital patient misidentification case judgment and to make it concrete for application of principle of trust in medical practice.