Legal Theory & Practice Review 2021 KCI Impact Factor : 0.87

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2019, Vol.7, No.4

  • 1.

    In the 4th industrial era, Finding Directions for Social Law - Paying attention to changes in labor -

    양승광 | 2019, 7(4) | pp.9~28 | number of Cited : 5
    Is there a Fourth Industrial Revolution? The question is whether artificial intelligence and big data technology at the center can be seen as a disconnected new technology. But I'm not interested in it, and I don't have the expertise or knowledge to judge it. What I would like to discuss is whether the development of science and technology, called the Fourth Industrial Revolution, will make human life more humane. It is clear that the development of science and technology will bring convenience to human life. So it was with a steam engine, with a washing machine. But convenience and humanity need to be discussed separately. Human beings are hungry for freedom and pursuing happiness. In this respect, the development of science and technology can be described as a value-neutral event for humanity. After all, whether the word “fourth industrial revolution” is affirmed or denied, how to respond to the development of science and technology will constitute a legal system in which all members of society can enjoy human life. Therefore, this article first suggested major tasks to be raised in the Fourth Industrial Era when continuing the current social law system and contents, and sought the corresponding directions.
  • 2.

    A Review of the Phenomenon of Cyber Insurance and Challenges of Legal Assignment in the United States

    Jongho Kim | 2019, 7(4) | pp.29~73 | number of Cited : 4
    In May 2017, a cyber attack by ransomware called ransomware was confirmed worldwide. WarnerCry took a ransom in Microsoft software to get a ransom to encrypt a file and decrypt it. A total of more than 300,000 computers in over 150 countries were perceived as a threat to the reported cyber attacks. In addition to WarnerCry, cyber attacks are evolving and diversifying, and interest in cyber risk is increasing worldwide. As concerns about cyber risks spread, tightening regulations on privacy protection are also becoming a global trend. In Korea, the Personal Information Protection Act was fully enforced on September 29, 2011. In the United States, cybersecurity legislation is intensifying, and in May 2018, the General Data Protection Regulation (GDPR) has been in effect in the EU. Increasing cyber attacks, increasing interest in cyber risks, and strengthening regulations are likely to lead to an increase in demand for cyber insurance. In the United States, public-private countermeasures against cyber risks occurred earlier than Korea. The use of cyber insurance is also underway, and some estimates that about 85% of the global cyber insurance market (based on imported premiums) is at risk in the United States. This article looks at the most advanced US cyber insurance trends in the world. At this time, the cyber insurance market is expanding and changing, and a lot of information is coming out. In this situation, this paper summarizes the cyber insurance trends in the United States over the past year to serve as a reference for a wide range of insurers interested in cyber insurance. Also, the opinions and considerations in this article are my personal opinions and do not represent the organizations to which they belong. In the future, as development and use of IoT, autonomous vehicles, and drones are advanced, it is natural that companies and insurance companies face the threat of cyber risks becoming more and more complicated. Corporate expectations for cyber insurance are also expected to increase. In Europe and the UK, fewer companies have cyber insurance than the US. However, as the company’s interest in data security increases due to the application of the GDPR in May 2018, cyber insurance coverage is expected to improve. For example, GDPR must report to regulatory authorities within 72 hours of a data breach, or to report data subjects such as customers. Corporate compliance risks will increase, and cyber insurance demand is likely to increase. However, if the cyber insurance provided by the insurer fails to meet the company’s expectations in terms of future product content and premium rates, it may be possible to give some of the demand to the captive or insurance link securities (ILS). There will be an insurance companies need to meet corporate expectations more than ever by partnering with modeling firms and cyber security firms, and by closely accumulating data and risk models and using them to set product customers and rates. The cyber insurance market is still growing in the US and is expected to expand in Europe. As the market is a big change, we should keep an eye on the European movement, which is not covered in this article.
  • 3.

    A Study on the Improvement of Convergence Security Regulation in Digital Transformation Society

    권오민 | 2019, 7(4) | pp.75~103 | number of Cited : 2
    In the wake of the Fourth Industrial Revolution, all things are connected based on information and communication technology, and the object itself is becoming a society that has the ability to think and process itself through a large amount of data. This is a structural change in society that originally the analog form of existing things into digital form and creats a new form of business that combines physical elements, which is called a Digital Transformation. It is also important to strenghten national competitiveness by establishing legal and institutional policies to promote the Convergence Industry in this social phenomenon. However, it will also be a grave obligation for the nation to minimize damage and to prepare follow-up measures against cyber threats in a complex and advanced Convergence Technology Environment. In order to promote the Convergence Industry and ensure the safety of the people, it is necessary to review whether our current legislation has legal system for preventing cyber threats and minimizing damage, or has a rapid response system based on legal ground. In addition, it should also consider whether it can establish the defintion and standards of Convengence Security through the certification system that can be utillized to prevent cyber threats in Convengence Industry and to secure public confidence in the entry of coporate products into the market. Therefore, A study has been conducted to derive legal systems and legal problems related to Convergence Security related to the Digital Transformation Socity and to find whether the range of security can be expanded and the promotion of the security industry can be sought together through the establishment of Convengence Security and standard.
  • 4.

    A Study on the Legal System for Bioethics in the Fourth Industrial Revolution

    Oh, Ho-Cheol , Han Ie Kim | 2019, 7(4) | pp.105~129 | number of Cited : 3
    On March 1, 2019, Japan revised Guidelines for Handling Specific Embryos and Law Enforcement Regulations regarding regulation of human cloning technology. The revision has made it possible to study the use of human ES cells or iPS cells in fertilized embryos in Japan. Through this regulation, Japan has approved the study of transplanting iPS cells into mouse embryos to make pancreatic cells, and the study is emerging as an alternative to addressing organ transplantation through heterogeneous organs. In Korea, there were many demands and discussion for the revision of the Bioethics and Safety Act in 2017. As the market of biopharmaceuticals grew, the demand for legislation or revision was increased to promote the Bio industry. Korea's bioethics law has been revised three times since early December 2017, but it did not reflect any of the numerous demands in the life sciences sector. But, on August 2, 2019, the Act on the Safety and Support of Advanced Renewable Medical and Advanced Biopharmaceuticals was enacted to support the development of new drugs in the field of regenerative medicine. In Korea, as in Japan, many patients suffer from the lack of donors in organ transplantation. Therefore, it is necessary to establish the groundwork that allows the study of xenotransplantation using iPS cells as an alternative to organ transplant deficiency. However, in Korea, there is no regulation to prohibit the study of heterogeneous organs, and IRB approved the research using iPS cells recently. Therefore, it is desirable to enact regulations to allow the study of heterogeneous organs using iPS cells that are considered to be relatively free of ethical issues, and to avoid various ethical and safety management problems that may arise through heterogeneous organ research.
  • 5.

    A Study on the Legal Measures to the Monopoly and Oligopoly in the Hollywood Film Industry - Focusing on the Paramount Decree -

    Seungeun Song | 2019, 7(4) | pp.133~154 | number of Cited : 0
    Abstract PDF
    In the early 2000s, Korean multiplex chains, CGV, Lotte cinema and Megabox were vertically combined, from investment/production to distribution/screening. They have dominate Korean film industry until today. These vertically combined companies are expanding their profits with extreme wide release. We call this current situation screen monopoly and oligopoly. It is one of the most debated issues in this industry. On May 1948, the U. S. Federal Supreme Court found that the Paramount dependents who were Hollywood studios violated Sherman Act by vertical integration, blocking booking and so on. The court also ordered the Paramount dependents to prohibit from their activities unreasonably restraining competition, and to divest five major studios of theaters. Under the Paramount decision, Hollywood studio system was weakened and studios decreased film production and concentrated on distribution instead in the decline of a motion picture industry. However, we need to examine this imbalanced market to make it fair. The solution, such as the Paramount decree, should be actively introduced into the domestic film market to provide a legal and institutional mechanism to create a fair competitive environment for the Korean film industry. It is time to reestablish the concept of diversity in film industry and enact an influential legal policy to actually limit the monopolies of film distribution and multiplex screening business. This will help the audience enjoy various movies and prevent film industry disruption.
  • 6.

    A Study on Establishment of Roles and Functions of Court-Appointed Assistant System on Juvenile Justice Cases - Focusing on the Survey of Awareness of Court-Appointed Assistant -

    Park, Ho-hyun , Yoon Hyun-seok | 2019, 7(4) | pp.155~181 | number of Cited : 2
    Abstract PDF
    The purpose of this study is to reconstruct the role and function of the Court-Appointed Assistant by identifying the operational status of the Court-Appointed Assistant system in the juvenile protection case and deducing problems and improvement plans through an empirical evaluation of the Court-Appointed Assistant system under the juvenile law. For this purpose, we surveyed 63 national assistants of Seoul, Gwangju, Incheon, Jeonju, and Suwon Family Courts. First, the stability of the interview site was mostly evaluated positively, but the satisfaction of the counseling facilities was negative. Second, the important factors influencing the opinion of assistants were crime-related matters, criminal history, boy's attitude of statement, possibility of re-crime, and whether or not to make an agreement with victim. Third, there was a high degree of confidence in the judgment of their own assistants or whether their opinions were reflected in the judge's final decision. Fourth, it was found that they wanted education such as adolescent psychology and counseling skills, and the case of national assistants who did not participate in education was due to the lack of education program and lack of time. Lastly, it was found that the types and facilities of disposition in the Court-Appointed Assistant system were insufficient and lacked, and the limitation of the current juvenile justice system itself and the expansion of court budget support were needed. Based on the above results, first, strengthening field education, such as sharing network and experience among Court-Appointed Assistant assistants, second, preparing institutional devices to specialize the qualifications of Court-Appointed Assistants with knowledge and experience of boys' characteristics and juvenile justice, and third, Court-Appointed Assistant assistants Fourth, the government proposed to diversify disposal facilities and improve the current juvenile justice system in order to expand the budget for the system and to prepare guidelines for efficient operation. This study has limitations in generalizing the research results by surveying only the national aids of five districts including the Seoul Family Court, and does not analyze the actual status of the socio-demographic variables (by gender, occupation, region, etc.). I couldn't. In the follow-up study, we conducted a nationwide study and an evaluation analysis according to demographic sociological variables of the Court-Appointed Assistant. In addition, we conducted further research on awareness of the Court-Appointed Assistant and Court-Appointed Assistant system for boys who are parties to the Court-Appointed Assistant. The role and function of the Court-Appointed Assistant should be established in the case.
  • 7.

    Critical Review on the Sex Offender Registration System as a Criminal Sanction Measure - Focusing on Unconstitutionality -

    유창훈 | 2019, 7(4) | pp.183~207 | number of Cited : 1
    First introduced in 2005 [Acton sexual protection of youth], the sex offender registration system currently regulated in the special Acton punishment of sexual violence crimes has the substance of security disposal However, in the revision process,the part requiring the risk of jamming was deleted,and the content was changed to require the conviction of judgment and the crimes for registration were greatly expanded. Increasing sanctions subject to punishment tends to be a useless punishment that violates basic human rights. Although there were a number of un constitutional discussions in the process of expanding the sex offender registration system, the constitutional court avoided discussing the nature of the sex offender registration system and examined the unconstitutionality according to the serioussness of the target crime. As a result, in the process of revising the sex offender registration system, the target crime was partially corrected according to the sentence of sentence. Security measures can only be recognized when their utility is proved against the future risks of the actor. There is a concern that the re-socialization of the subjects may be hampered by the current sex offender system in which the registered crimes are greatly expanded and the effect of deterrence is not confirmed. Recalling Article 10 of the constitution of Human Dignity and values and Article 12 of the constitution of Freedom of the Body, there is a need to review and overhaul the requirements of the syetem in accordance with the nature of security disposal and to restore the principles of the law state.
  • 8.

    A Study on Community Integration Care Using the Trust System - Focusing on the case of Japan -

    황정훈 | 2019, 7(4) | pp.209~231 | number of Cited : 4
    The trust system developed under the British-American law has been insignificant in Korea, but it has recently attracted attention from the revised trust law and the new property management. Care management is carried out in Korea through the social insurance system. While the social insurance system is stable in operation, there is a problem in that it cannot be flexibly responded to changes in circumstances. The trust system has the advantage of being able to operate flexibly according to the change of circumstances. It is important to note that Japan, which has already entered the high-age society, recognizes the property management of senior citizens, including dementia, as an important issue and establishes a system such as guardianship support trust. In conjunction with the implementation of the adult guardianship system, effective care for the community can be achieved if the care management using the public trust system is activated. A public trust can be established by contract, will, or entrustor's declaration, and it is basically easier and easier to establish than a public interest corporation because no special method is required. In the case of fundraising, community integration care is led by the Ministry of Health and Welfare or local governments. Tax resistance may occur because the project is carried out without paying the taxpayer's intention and without paying the benefit. On the contrary, in the case of public trust, the project can be carried out in accordance with the consignor's intention and efficient and proactive operation can be achieved. In order to implement care management by supporting one's own or third party under the current trust law, we would like to find ways to make trust more active in connection with adult guardianship system.
  • 9.

    A Study on the Compulsory Enforcement of Cumulative Voting

    Shin, Chan- ho | 2019, 7(4) | pp.235~258 | number of Cited : 1
    In case of Korea, Commercial Law was revised on December 28, 1998 to strengthen the protection of minority shareholders and responsibilities of corporate management, and raise the transparency of corporate management after the financial crisis, and under the revised Commercial Law, the opt-out, which is a means of cumulative voting for the appointment of a director, was introduced except as otherwise stipulated in the articles of corporation. Cumulative Voting is a voting system that allows a shareholder to cast votes that are equal to the no. of shares it holds multiplied by the no. of directors to be elected when a company intends to elect 2 or more directors in a single general shareholders’ meeting. In general, a shareholder is allowed to cast one vote per share that it has, so the largest shareholder may appoint all directors at its will. Cumulative voting is a voting system that allows a minority shareholder to have votes that are equal to the no. of shares it has multiplied by the no. of positions that he/she is voting for, in turn being able to appoint a director representing its interest. Cumulative voting can contribute to the transparency in corporate management through balancing among shareholders, by the means of appointment of directors representing the interests of minority shareholders and the prevention of pursuing private interests by the controlling shareholders. However, since the current Commercial Law stipulates that a company is allowed to exclude the cumulative voting system if stipulated in the articles of corporation, it has not been employed widely and even in the case it is allowed, there is a means of avoidance, raising the question regarding the effectiveness of the system. There are severe conflicting claims regarding the compulsory enforcement of cumulative voting and those who favor the compulsory enforcement suggests that it could raise the transparency in corporate management and restore the functions of the board of directors, and those raising objections claim that the directors appointed by minority shareholders would represent the interests of a specific group, and the damages would be caused by the leakage of corporate management information and violation of management rights. In the following, the background and current status of the cumulative voting and its legislation in overseas, and arguments regarding the compulsory enforcement of cumulative voting are discussed.
  • 10.

    A Consideration on the Right of Conservation in a Injunctive Litigation and the Need for Injunctive Conservation

    won, sang-chul | 2019, 7(4) | pp.259~284 | number of Cited : 0
    A claim on property may be seized only if it is a monetary claim or a claim convertible into money. To apply for seizure, any person must have a claim over the debtor. The right to seize shall be a right suitable for enforcement. An injunction of disputes must have the right to request performance of a particular object. The injunction of disputes must have a claim. The right to disposition of a dispute over the merit is to be protected by civil proceedings and should be a right suitable for enforcement. The injunction of the dispute should be about the phenomenon of the dispute. There must be a rights relationship in the provisional disposition of provisional status. The provisional disposition of provisional status must be contested in the rights of relationship. The injunction of disputes is permitted when the status quo changes so that the rights of either party may not be exercised or that the execution may be markedly difficult. Under what circumstances should a conservation application be rejected or canceled because there is no need for conservation disposal? This study examines these key issues that emerged in practice in conservation litigation.