Korean | English

pISSN : 2288-1840

2020 KCI Impact Factor : 0.86
Home > Explore Content > All Issues > Article List

2019, Vol.7, No.3

  • 1.

    Prospect and Tasks of Electronic Contract in the 4th Industrial Revolution Era - Focusing on Real Estate Electronic Contract -

    이종구 | 2019, 7(3) | pp.9~35 | number of Cited : 5
    Abstract
    In the 21st century knowledge and information society. For example Electronic Contracts made with the intention of electronic computer information networks are emerging as a new legal problem which can not be solved in the conventional legal system governing contracts. In other words, the indicator's decision determines the effect and formation of the contracts in the face-to-face or written contracts but electronic decision through computer information network is established the working process of electronic signals- electronic contracts are not only difficult to separate the decision-making process but questioned to be solved by the theory of the general legal action. In recent years, artificial intelligence has changed its dominance in almost all fields such as society, education, industry revolution Era. At this point, it is necessary to anticipate the change of the real estate transaction system and prepare countermeasures. The positive changes in the real estate trading system in the 4th industrial revolution era. First, system use prospect agents should be included into system users by promoting training of the Ministry of Land, Infrastructure, and Transport and local autonomous authorities. Second, the login process of this system should be simple and narrow down the distance at the point of entry since the process is so complicated and tricky that opened real estate agents feel difficulty in the process of issuing specific purpose certificates. Third, middle-aged users are expected to avoid using the system as they are unfamiliar with the use of smartphone and table PC. Thus, information service center for real estate transaction electronic contract system should be directly operated and provide assistance, and enable them to use without inconvenience by implementing promotion and advertisement that add up familiarity. Fourth, the ban on direct transaction and non-face-to-face contract (proxy contract and delegation contract) should be improved to be available in the real estate transaction electronic contract system.
  • 2.

    The Inventive Step in the US Patent System -Issues and Status of Inventiveness Judgment in the Examination of Patent Application-

    Jongho Kim | 2019, 7(3) | pp.37~70 | number of Cited : 0
    Abstract
    In patent law, inventive step, inventiveness means that the invention was not easily achieved by experts in the field according to the prior art. It is one of the requirements for receiving a patent right for invention. In judging the inventive step progress, it is a problem to judge what is prior art and when and who can easily achieve it. What is prior art has the same problem as the prior art of novelty. Prior art at the time of completion of the invention to be examined or prior art at the time of filing petition, or whether it is known to the world or notified to a specific country. There is a problem in saying that progressiveness is not always easy to accomplish. There are a number of countries that judge on the basis of when a patented invention was completed or when it was filed. It is an example of each country to state to experts in the technical field that progressiveness is not easily attainable to everyone, but it is obvious and there is a problem that the skill level of the experts in the technology field varies from person to person. Generally, a hypothetical person who can exert a common creative ability in the technical field is assumed. This is called a person skilled in the art. Nevertheless, there is still a problem of assuming a certain level of creative ability. It is considered difficult to determine only to what extent a person skilled in the art having the ability to create, that is, how easy it is to facilitate the technology to be judged by the provisions of the statutes. Therefore, it is important to judge the progressiveness of judgments by the Patent Office of each country and the judgment of the courts of each country. This article discusses the social system and the patent system in Chapter II. In Chapter III then discusses the basics of the US patent law’s progressivity and operating standards. In particular, article 103 of the US Patent Act, the Supreme Court’s Graham judgment holding, and the United States Patent and Trademark Office’s MPEP are reviewed. The following Chapter Ⅳ discusses the verification process of self-identification and describes future tasks in place of conclusions in Chapter Ⅴ.
  • 3.

    A Study on the Protection of Child Abuse Victims in Austria Based on International Conventions

    Han, Jong-Wook | 2019, 7(3) | pp.73~92 | number of Cited : 1
    Abstract
    The harm of child abuse can last a lifetime and many victims of actual child abuse live with aftereffects even after they reach adulthood, so they need special attention through criminal justice procedure as social underdogs. We fully understood that the European Convention on the Rights of the Child, the European Convention on Human Rights and the European Convention on Criminal Justice and the Treaty of Cooperation were fully reflected in the domestic law to ensure that children's criminal justice rights in Austria through this review. In particular, the medical institution actively protects child abuse victims through delicate systems such as the expansion of psychological, social, and legal awareness as well as the consideration of children's welfare and the right to receive information in the investigation, as well as the expansion of criminal and remote virtual investigations that take care of victims in accordance with the criminal procedure. In addition, the most important issue in the system regarding victims of crimes, such as the abuse of the lower body, as identified by international conventions and the Austrian system, is how to ensure that children enter the procedure of consent with the victims in the optimal way rather than whether they should testify in court. Only when a child enters criminal proceedings in any environment in any way should the system fully reflect the existing legal principles of ensuring the defendant's right to defend and whether the protection of the child should be well enough. After all, related organizations such as the police, the prosecution, the court, the National Assembly, and the institutions specializing in child abuse victims' protection need to understand the current trend of concern regarding the child abuse victims' protection system, along with the traditional alternative of specialization of manpower to handle the improved system well. And child abuse victims should be reverted by post-monitoring, such as whether they are properly treated and protected after the incident. When we even establish a comprehensive problem-solving system, ranging from the medical, welfare and proper treatment of child abuse victims identified in criminal procedures, our society will be able to approach an essential solution to the problem of child abuse.
  • 4.

    A Study on Legal Issues Related to Working Conditions of Part-Timers Under the Labor Standards Act

    lee jae sam | 2019, 7(3) | pp.93~121 | number of Cited : 0
    Abstract
    In providing employers with labor by employees under the Labor Standards Act, working conditions should be appropriate, that is to say, working conditions for employees should conform to the Labor Standards Act. Unfortunately, there are cases where working conditions of part-timers among employees are not appropriate. Although it is essential that an employment contract between an employer and employee should be drawn up under the Labor Standards Act, violations from part-timers’ drawing it up are found in practice. And though all employers must allow employees to take rest breaks during the working hours according to the Labor Standards Act, they skip or allow rest breaks less than legally determined or give lower incentives for extra work, thereby employees’ being mistreated. Also, the Labor Standards Act bans delayed payment of wages for employees, nevertheless delayed payment of wages for part-timers result in their legal and economic loss. In addition, although the minimum wage system on employees is guaranteed under current Minimum Wages Act, the minimum wage increase policy which took effect in 2018 has rather caused problems like job reduction and widening gap of income distribution. And under current Four Insurance Act, four major insurances, as the public insurance for protection of rights and interests of employees, employers are entitled to subscription. Realistically, however, subscription rate due to premium burden, etc. of employers appears to be low. As to the improvement measures to such problems, first all employees must enter into a standard employment contract and get it accordingly. And all employees must be allowed to take enough rest breaks during the working hours and to receive sufficient incentives for extra work. Also, all employees must enter into an employment contract against delayed payment of wages which guarantees the wage payment, and in case that payment of wages is delayed by a company(employer), employees keep in mind to report it to the Employment and Labor Ministry or claim a payment order pursuant to the Civil Procedure Code. In addition, a minimum wage increase should not let employment be contracted and employees live in need. Therefore it would be necessary to selectively apply a minimum wage increase policy in terms of effects of companies’ employment promotion and minium wage increase.
  • 5.

    Practical Issues on Land Acceptance Decision for the Maintenance Project of Natural Disaster Prone Areas

    Hwang Jung Hoon | 2019, 7(3) | pp.123~150 | number of Cited : 0
    Abstract
    In order to implement the natural disaster risk improvement district maintenance project, consultations between owners and project operators on land of autographs belonging to the business area shall not be conducted in accordance with the constitutional limitation that exercise of property rights should be exercised to suit public welfare. If it is not, the decision can be proceeded according to the application for acceptance decision, and even in case of acceptance, the right compensation should be made. We reviewed economic analysis through cost-benefit analysis, disaster reduction case analysis, and perception survey by public officials in charge of natural disaster risk improvement district maintenance project. It is not suitable for reviewing public works aimed at substantive guarantees of today's environmental rights. Therefore, case analysis should be conducted under the ecological proportional principle that puts environmental protection first. In connection with the land acceptance decision procedure, the implementation plan for the natural disaster risk improvement district maintenance project is announced and the loss compensation agreement is made. When the Land Acceptance Committee receives the application for decision, it shall promptly announce it and make a copy of the document available to the public for public review, and the landowner or related person may make an opinion. Compensation for land is compensated for the loss compensation based on the announced land price, but the higher price is compensated by comparing the evaluation amount of the appraisal service provider with the amount presented by the project operator in consideration of the plan related to the development of the target land. Protect landowners' rights and interests. In the United States, the Stafford Act was enacted and implemented to establish an integrated disaster management system and comprehensively cope with disasters in the United States in order to review relevant foreign legislation. In Japan, for the purpose of securing social order and public welfare. The Framework Act on Disaster Prevention has been enacted and is in operation. Through the review of foreign legislation and the practical operation, the plan for rational implementation of natural disaster risk improvement district improvement project will be examined.
  • 6.

    A Study on the Introduction of a Suspension of Sentence in the Summary Order

    Lee John Girl | 2019, 7(3) | pp.151~171 | number of Cited : 0
    Abstract
    According to a criminal analysis by the Supreme Public Prosecutor's Office, a total of 1,824,876 crimes were committed in 2017. Among them, the number of offenders with criminal records exceeding fines stood at 811,653 accounting for 43.6 percent of the total. The proportion of criminals with criminal records has decreased year by year from 50.4 percent in 2008, down 6.8 percent over the past decade. Although the rate has decreased gradually, the rate of recidivism is still high. There are two procedures to be tried. It is a formal trial and summary procedure. The formal court allows the defendant to suspend his sentence or serve a suspended sentence when there is a reason for taking into account the circumstances of the defendant's alter ego. However, there is no penalty for sentencing in the summary procedure. This goes beyond the principle of equity. There is a moratorium on prosecution for very minor offenses. And there are suspended sentences or suspended sentences in formal trials. However, there is no grace system for the abbreviated ordinances located in the middle. Thus, the principle of equity is realized if the sentencing grace period, which has rarely been carried out, is transferred to the summary procedure. In addition, the imposition of probation is effective in preventing crime. In addition, the use of the sentencing grace system will be increased.
  • 7.

    Study on the Law on the Introduction and Management of Private Investigation System

    Lee Keon Su | 2019, 7(3) | pp.173~205 | number of Cited : 2
    Abstract
    Among OECD countries, most countries except Korea allow private investigations and contribute to solve the cases of corporations and individuals positively. Private Investigation is a service activity that receives requests from others and collects necessary information and information within a reasonable scope and provides them to clients. Private investigation is necessary to protect the rights of individual citizens, and at the national level, the expansion of security services and the national economy can be of great help. Foreigners have excellent human resources, and there are many experts in computer security, crime prevention investigation and security. Private investigators also play an important role as assistants and companions to lawyers. However, since the private investigation system is banned in our country, many consumers request the incident to the errand center and the heungshin site in spite of the fact that the damage is transmitted to the people. Illegal erroneous centers and prostitutes, etc. and to prevent illegal acts of privacy and illegal activities to the public by soundly cultivating civilian projects through national certification and supervision. The role of a private investigator is to investigate the facts of public interest infringement, investigate the missing persons, investigate the security management and intellectual property rights violation investigation of companies, investigate insurance matters, To conduct a fact-finding investigation on civilian persons with various qualifications, such as investigating facts about lawyers' delegation matters, collecting online data, monitoring illegal activities, investigating facts for preventing and recovering from various kinds of damage . Therefore, I would like to examine the detective systems of the United States, the United Kingdom, and Japan, and study the laws and regulations on the introduction and management of civilian research systems in Korea.
  • 8.

    A Study on Non-Monetary Forced Execution as a Creditor Protecting Method in China’s Civil Enforcement Execution Procedures

    박흥원 | 2019, 7(3) | pp.207~236 | number of Cited : 0
    Abstract
    In Chinese law, the non-monetary indirect enforcement is very diverse, the strength of sanctions is strong, and even if criticism that “gives a significant damage to an individual’s human rights or privacy,” it is not unusual at all. Such criticism, however, is not “about non-monetary indirect enforcement,” but rather about “excessive accumulation of credit information” or handling of such information, and it should be avoided to overdo social control by credit information. The problem of being the most ‘excessive’ is not a question that can be discussed logically, but a problem that is determined by the acceptance of society in general. Until now, the continual increase in non-monetary indirect enforcement is thought to demonstrate the high acceptance of society in China, but there may be a time when it is necessary to gradually discuss the ‘excessive’ level. At the present time, the creditor in the Korean bond collection system is able to exercise fair rights by using the appropriate forcible force. On the other hand, since the obligatory debtors are legally providing opportunities to escape from the difficulties sufficiently, The debate over the gap that occurs during the process may not be meaningful. However, this study overcomes these difficult issues and examines how China adjusts the interests of creditors and creditors in the compulsory enforcement process from a comparative perspective. In fact, we can misunderstand that Chinese law is far behind our legal system. However, we have been able to find a way to protect the creditors and to protect the debtor through a much more diverse legal system than we do. It is expected that the accomplishments of this study will be used as important data for improving the enforcement system in Korea in the future. In particular, we think that the indirect enforcement system of non - monetary bonds in the enforcement process is a new system in our legal system and that some of them should be reviewed. This paper will serve as a guideline for the implementation of the mandatory enforcement procedures in China.
  • 9.

    Criteria for judging false · exaggerated advertisements in advertising - Reference to Supreme Court Decision on July 21, 2008 -

    Hong, Tae-Seok | 2019, 7(3) | pp.239~257 | number of Cited : 0
    Abstract
    The problem of false advertising has continued since before. These problems have always grown in the process of new products being launched, displayed, advertised, and sold. From the standpoint of the seller and advertiser, they will try to sell a lot more by promoting the product even further. In particular, food and health-related functional foods are making more and more false advertisements. It would not be too much to say. On the other hand, while imposing sanctions through various legislation to restrict such false advertising, there is also a limit. It is true that the falsehood or overstatement of advertising is included to some extent, and the Korean court also sees the falsehood or overstatement within acceptable limits of advertising as not against the law. The damage from over-the-top ads, of course, can be inflicted by consumers, but the South Korean court views them only as fraudulent advertisements if "expectations" are recognized. In other words, it can be included in the category of 'fraud guilt' only if the expectation has misled or misled the consumer and acquired property interests from the accused. However, in the process, the Korean court judges that some abstract false advertising does not violate the law. Finally it seems difficult to judge this ‘within the abstract’. However, it is believed that the decision should be made based on the case and the opinions of the expectation for a firm acquisition of property interests are conveyed, and thus the profit has been acquired. Therefore, this paper has its significance in clarifying the criteria for judging falsehood in advertising through precedents, focusing on these points.
  • 10.

    A Study on Dividend Issues in the Auction Procedures

    won, sang-chul | 2019, 7(3) | pp.259~293 | number of Cited : 1
    Abstract
    The auction courts are responsible for designating the dividend date and preparing the dividend sheet. Even if the sale price can not satisfy all the creditors, the dividend date is designated and the dividend payment is made. Theoretically, there is a distinction between the reimbursement procedure when the creditor can be satisfied with the sale proceeds and the reimbursement procedure when the creditor can not be satisfied. All in all, it is a dividend procedure in a broad sense. In actuality, in the case of the former, the dividend date is designated as in the latter case, and a dividend is created by dividend. Above all, the dividend procedure belongs to the auction procedure. In the case of the execution of the movable property, if the requirement to start the dividend procedure is provided, an independent dividend procedure separate from the previous execution procedure is started. However, in real estate auction, the dividend procedure is performed as part of the previous auction procedure. This study examines the practical problems arising in the process of dividing the auction with these characteristics one by one. In the auction procedure, the scope of the creditor to be paid, the dividend ratio and the dividend amount, and the dividend rank are examined in detail as the basic relationship related to dividends. In particular, this study gives a detailed view of the practice of absorption dividend and cyclical dividend..