Legal Theory & Practice Review 2021 KCI Impact Factor : 0.87

Korean | English

pISSN : 2288-1840
Home > Explore Content > All Issues > Article List

2020, Vol.8, No.2

  • 1.

    Rechtliche Überlegungen zur nicht persönlichen Kontakt-Behandlung und Proxy-Verschreibung im Hinblick auf die Vorbeugung von Infektionskrankheiten

    Hyung-Sun Kim | 2020, 8(2) | pp.9~29 | number of Cited : 3
    Am 11. 03. 2020. ist WHO die Corona 19-Pandemie ausgerufen, und Länder, insbesondere Europa, begenen mit behördlichen Anordnungen und Sondergesetzen, um eine Corona-Infektion zu vorbeugen. Auch erlaubte das koreanische Ministerium vorläufig die nicht persönlichen Kontakt-Behandlung und die Proxy-Verschreibung auf Grund § 59 KMG(KOREA MEDICAL SERVICE ACT) und §§ 40, 44, KGMG(KOREA FRAMEWORK ACT ON HEALTH AND MEDICAL SERVICES). §§ 17-2, 18 KMG und die Rechtsprechung verbieten jedoch eine Nicht-Face-to-Face-Behandlung und eine Proxy-Verschreibung, was zu Verwirrung im medizinischen Bereich und rechtlichen Konflikten mit dem Medizinrecht führt. Doch git es im geltenden Recht keine Grundlage, die die persönliche Kontakt-Behandlung zwischen dem Arzt und dem Patient einschränkt, so dass die Rechtsgrundlage des Ministeriums nicht gerechtfertigt sein kann. Vielmehr sollte § 17-2 KMG in § 18 desselben Gesetzes aufgenommen und einheitlich geregelt werden. Da § 17-2 KMG entspricht nicht dem Medizinrechtssystem, Rezepte in denselben Bestimmungen wie § 17 (Diagnose usw.) KMG zu verschreiben, in dem lediglich andere Arten von ärztlichen Dokumente wie ärztlichen Attesten festgelegt sind. In § 18 KMG sollte die „direkte Kontakt-Behandlung“ des Arztes klar festgelegt werden, und eine medizinische Person (Arzt oder Zahnarzt) sollte es ermöglichen, die Verschreibung nach eigenem Ermessen zu entscheiden.
  • 2.

    Critical Review on the Mental Health and Welfare Act related to the Schizophrenia Spectrum Disorder

    Hwang Jung Hoon | 2020, 8(2) | pp.31~57 | number of Cited : 1
    Violations of Article 24, Paragraph 1 of the Mental Health Act prescribed in relation to the forced hospitalization of people with schizophrenia, in cases where violent crimes by patients with schizophrenia spectrum disorders have increased rapidly and social anxiety has increased. In the proposed case, the decision to constitutional inconsistency was sentenced because the basic rights were excessively limited by not preparing appropriate measures to minimize the infringement of the body of persons with mental illness. In the revised Mental Health and Welfare Act, mentally ill people were defined as 'persons who have serious limitations in their daily lives independently,' defined as severe mental illness, and added welfare services to mentally ill patients. The revised law allows for forced hospitalization in cases where there is a degree of illness that requires treatment for hospitalization and the need to be hospitalized for the safety of others or for the safety of others. There is a problem of increasing the duration untreated period (DUP). According to the 「Mental Health and Welfare Act」, patients who have been previously hospitalized and who have to be treated are not able to recover completely. It has the potential to violate the right to treatment. In order to reduce DUP for schizophrenia spectrum disorders in which early treatment is important, it is necessary to establish a comprehensive mental health management system such as promotion of mental health and budget allocation. The mental rehabilitation facilities in the community to support the mentally ill are difficult to accommodate even the existing patients, and the reality is that the new patients are inadequate. Also, the educational infrastructure for returning to society is poor. A system that connects and coordinates mentally ill people returning to the community with the community infrastructure should be established.
  • 3.

    Criminal judgment and implications of self-determination right of terminal patient in foreign cases - Through Japanese and American precedents -

    Hong, Tae-Seok | 2020, 8(2) | pp.59~88 | number of Cited : 0
    Human life is an important thing that cannot be exchanged for anything. Therefore, Korean criminal law sees human life protection as the biggest protection law. Thus, the criminal code, which includes murder and invasion of life sets the sentence high. However, there are cases of “unnecessarily infringing” - euthanasia and death with dignity. Of course euthanasia which actively terminates human life, is not recognized except in some countries and many countries including Korea already recognize death with respect to death with dignity. It is true that such euthanasia and death with dignity are still considered criminal problems such as assisted suicide as a matter directly related to human life. Until recently there were not many other opinions on the legality of euthanasia and death with dignity but there is a need to review the legality again. The direct cause of the move was the appellate court’s ruling on Japan’s so-called “Kawasaki Cooperative Hospital” case. Meanwhile, the U.S. precedent shows that if self-determination solves the problem it will inevitably lead to a bad result and based on this the abandonment of self-determination is required. However, it seems necessary to review whether this understanding of U.S. precedents and, by extension the flow of relativization of self-determination can be seen as reasonable. Considering the social background that the discussion on euthanasia and death with dignity must be accepted and the legal issues related to it, it is not easy to find an answer. The key to this problem is how to be free from criminal intervention as this problem can be problematic in various future situations. In this paper we reviewed the implications of Korea by referring to the situation of the Japanese appeals court’s ruling on the Kawasaki Cooperative Hospital case and the U.S. case which is considered important in determining the future direction of the discussion on euthanasia and respect.
  • 4.

    A legal discussion of takings of real estate and ‘public use’ requirements for economic revitalization focusing on US Case Law - Kelo v. City of New London, 545 U.S. 469 (2005) -

    Kim, Sang-Jin , Han, Jong-Beom | 2020, 8(2) | pp.91~123 | number of Cited : 0
    The Fifth Amendment (Amendment V) to the United States Constitution addresses that “No person shall be deprived of life, liberty, or property, without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without just compensation.” The Fourteenth Amendment (Amendment XIV) to the United States Constitution also provide that “no shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The same applies to the constitutions of individual states. The majority opinion is that in the United States, three conditions must be met to takings private property. That is, due process of law, just compensation and public use. Meanwhile, before the new state was established, the federal government had already granted land rights to original local residents. In other words, under federal systems such as the United States, both the federal and state governments are sovereign and do not possess absolute rights or interests in land. The constitutional provisions on expropriation appear to be dormant but are still attracting attention from the courts and academia. In the United States at the end of the 19th century, government condemnation activities appeared more and more frequently following the development of the Second Industrial Revolution and urbanization. The federal and state governments were also accepting to promote the economy, and the construction of large-scale economic facilities was becoming more active. But there were opponents. They insisted that large-scale eminent domain led to legislative abuse, and that it was necessary to strictly examine the act of forcibly transferring property rights. But there has been a long debate about whether the court has the right to examine. American jurists have sought answers in the classic writings of natural law scholars of the seventeenth-century continent, such as Hugo Grotius and Samuel Pufendorf, but have not concluded the question of what ‘public use’ is. To prevent abuse of state condemnation power, courts and jurists are debating how to establish the concept of ‘public purpose’ while limiting the exercise of the right of expropriation. The problem has not reached a unified view to this day. This article reviews the legal controversies surrounding US real estate takings.
  • 5.

    A Korean-style Effective Plan for the Prevention of Child Abuse Crime - Focusing on application of advanced foreign programs and development-

    Lee, In Gon | 2020, 8(2) | pp.125~167 | number of Cited : 6
    A child abuse needs to be considered in two ways. One is to act as a kind of harm to a child under the age of 16 due to the carelessness of a guardian (supervisor) who has a duty to protect or supervise, and the other is to deliberately inflict physical abuse (including pain). It refers to an act that jeopardizes the safety of life and body by acting mentally (psychically). It is the Supreme Court’s position to understand that the protection interests are logical, including mental distress, as long as it is viewed as the safety and personal rights of life and body. The current law broadly interprets that the act of delivering or being delivered to a business person or employee who is to be used for a job that is dangerous to the life or physical health of a child is also subject to child abuse. Therefore, it is necessary to effectively protect children by resolving the idea of ​​the past era, which considered children as private property as a kind of parent, from its roots. In other words, child abuse was intentionally inflicted (physical and mental) on the child by deliberate intention by the guardian (the subject of the customs, office management, social practices, cooking, as well as laws and contracts based on the occurrence of the supervisor, protection and supervisor status). In addition to the case, it was considered to be due to the negligence of the parent. How has this study evolved from the perspective of dealing with child abuse in our society and the sanctioned view of events? In particular, I first look at how the process of recognition and judgment of exercising the right of punishment in the areas of legal justice and legislative and judicial justice for child abuse in the home has evolved. Furthermore, compared to the West, the application of programs on the prevention of child abuse crimes in advanced countries in Japan, the United Kingdom and the United States, etc. in relation to the protection of child welfare in Korea, especially child abuse, and the advantages of Confucian traditions are complemented to suit the constitution of Korea. The aim is to develop effective systems for the development of child protection systems and prevention of child abuse crimes. The current Child Welfare Act, which was the main statute of child abuse in Korea, was amended in January 2000 as the Child Welfare Act. At the same time, the law aims to ensure the well-being of children so that they are born healthy and grow up happily and safely, and protects all children from all kinds of unfavorable social environments. Twenty years have passed since defining the concept of child abuse as a social problem by defining that it is in creating an ethos. In May 2016, it has been five years since the special law of the punitive (criminal) nature of the Special Act on the Punishment of Child Abuse Crimes, etc., which uses social consensus for the prevention of child abuse as its content. Critical claims have been constantly raised regarding the effectiveness and legislative method of the law, but at this point, in-depth consideration of the changes in the legislative and judicial views on child abuse in Korea and suggesting implications are the ways to secure the shortcomings in the past legislation. It is essential to establish a robust child abuse protection system in the future that it has failed to dispel the previous criticism by reflecting on the fragmentary revisions.
  • 6.

    A Study on the Duty of Safety Care and Violations

    Yeon Hwa Jun | 2020, 8(2) | pp.169~197 | number of Cited : 0
    The modern social environment has a variety of social relationships among people, but there is an increasing need to protect victims as there is inevitably a disadvantage to people's lives, health, and property. Safety considerations are defined as an obligation of the employer to protect the life and health of the employee or an obligation of one of the contracting parties to protect the other. The real benefit of admitting the obligation to pay attention to safety is to increase the relief of employees and victims. While the scope of the safety consideration obligation is extended by various types of contracts, the safety consideration obligation can be interpreted differently depending on the type of accident resulting from violation of the contract. Therefore, it should be judged by taking into consideration the institutional and technical level of society for life and physical security and specific conditions. Therefore, it is advisable to consider the legal nature of the obligation to pay attention to safety in each type of contract agreed by the parties. ①As part of the obligation to give consideration to safety, claims for damages, enforcement of performance, right to cancel, etc. will be recognized as an effect of a breach of obligation. ②As an incidental obligation, a claim for damages and performance of incidental obligations may be permitted in the event of a breach of the purpose of the contract. ③In the case of violation of the obligation to give consideration to safety, which is recognized based on a special social contact relationship based on a certain legal relationship rather than a contractual relationship, it is considered efficient to categorize the violation into claims for damages, etc., and to give appropriate legal effects to each of them.
  • 7.

    A Social Contract Theory and the Legal Philosophical Foundation of Capitalism as a Critique of the Illusion of Moral Socialism

    Jongho Kim | 2020, 8(2) | pp.199~246 | number of Cited : 0
    Social justice and social responsibility are difficult to be compatible with the norms of capitalism, and capitalism transforms into socialism when social awareness, justice and responsibility become legal rules of moral establishment. Capitalism is developed by humans’ selfish desires and linguistic initiatives, and to this day it shows world-wide expansion and exceeds the ecological limits of the Earth. Moral socialism aims to suppress the selfish tendency of human nature and to control the ills of capitalism by social (historical) awareness, and to overcome the freedom of capitalism, including the revision of capitalism. Humans, however, are essentially free and there is a limit to growth on Earth. Therefore, a finite human must control himself and coexist. The proponents of the new international order are clinging to the distorted achievements of past high growth and promoting the illusion that free competition for profit can solve everything. As history suggests to us, too much emphasis on freedom seeks to destroy traditional values ​​and culture. Now, however, it has been found that destruction and rationalization by market competition does not create new justice and justice just by enlarging desire and expanding humanity and corruption. Freedom and creativity are the best values ​​that humans have, but neoliberalism (marketism principle) that excludes social justice of exchange and distribution and various and fair rules has become the enemy of human welfare. Humans cannot live only by economic and commercial needs. It should not be left to be the leader of the global economic animal. The problem of the modern closed situation can only be solved by having the goal of overcoming the globalization of the imperialist gap and realizing human welfare. God’s invisible hand is nothing more than a moral ideology that misleads the essence of human existence (creative potential), leads humans and human society into panic and war, and neglects the comfort and malice of the strong. If one cheat his opponent, sell something of no value, or pay the promised price, it is fraud, a breach of contract, and the disadvantaged party will not allow this fraud. He have to sue his opponent in order to restore the exchangeable justice. Laws, including Civil Act and Commercial Act, appeared to correct this by making the principle that justice should not be maintained because there should be no injustice in the relationship between the individual and the individual. Laws, including Civil and Commercial Act, are also needed to legalize the definition of commodity exchange. In relation to the exchange between individuals, it is required in a more strict form that it is an exchange definition. Civil Act and Commercial Act may be used as a rule system to maintain this exchange definition. This exchange definition must always be maintained when the other person is a person or corporation in a different society or an individual and person in the same society exchange or market transactions. In this sense, the only commonly used justice is this interchangeable justice. From the above logic, if one look at economics in terms of the justice of exchange, one can understand that the economics of pulpit so far are economics that conceal universal justice. However, in this market economy, bad justice is a law that arises from the nature of human existence, and how to lead it should be solved in the realm of morality and politics. This article examines “A moral socialism, what is the problem?” and criticized the principles of freedom and welfare state theory, social contract theory, capitalist advocacy theory and marketism at the suspicion (doubt), and reviews “Is an inequality in the new perspective on justice a condition of human progress?” “Is it impossible to balance social justice and greed?” “Is the opportunity to unleash one’s talent fair?” “Why is moral socialism unnecessary?” and the like. As an excuse and as a supportive arguments, I tried to build a new legal philosophic basis for the justice with my opinion upon the various economists.
  • 8.

    Summary of U.S. Life Insurance Resale Law Regulations Based on the New York State Insurance Act

    won, sang-chul | 2020, 8(2) | pp.247~267 | number of Cited : 0
    Life insurance contracts are insurance contracts that cover insurance accidents such as the death of an insured person. In the event of an insured person’s death within the insurance period, the insurance beneficiary receives the insurance money. However, at this time, the policyholder and the insured may not match. The motivations to buy life insurance are diverse, but the typical one is the Bequest Motive. The intention is to leave insurance money for the purpose of providing financial resources and inheritance tax for dependents left after the death of the insured. However, due to the nature of life insurance over a long period of time, the motivation for inheritance may be lost over time, and it may be difficult to maintain insurance contracts due to factors that cause financial difficulties such as unemployment and the provision of medical expenses. At this time, the policyholder selects the termination of the life insurance contract, and the insurance company pays the contractor a cash surrender value according to a predetermined schedule. The policyholder’s cancellation can be viewed as a process of returning the policyholder’s insurance policy to the insurance company. In the U.S., resale was allowed for the severely ill in the beginning, but it was later expanded to the elderly. In Korea, resale is not yet permitted, but discussions on the resale allowance can be resumed at any time in accordance with recent trends such as inclusive finance and consumer-oriented finance. Reselling life insurance is often an ethical criticism in that it deals with the life expectancy of the insured. The reason is that the sooner a subscriber dies, the higher the profit of a pre-sold investor. There may be a moral hazard of the insured, and there is also concern that an insurance company that has established a premium based on a predicted rate of termination may increase the premium due to an increase in the insurance premiums and a decrease in profits due to termination. do. In this study, I reviewed the insurance law related system of New York State in the US related to the purchase of life insurance and examined whether the Korean law could be introduced.
  • 9.

    A Study on the Legal Status of Unregistered Real Estate Buyer

    PU, DONGHO | 2020, 8(2) | pp.271~304 | number of Cited : 0
    The purpose of this study is to review several issues concerning the legal status of ‘Unregistered Real Estate Buyer.’ ‘Unregistered Real Estate Buyer’ is people who bought a specific real estate, but he or she has not still finished registration of it until the time in question. Korean civil law takes formalism about ‘transfer of real rights.’ Therefore ‘Unregistered Real Estate Buyer’ acquires nothing of real rights. Namely he or she has not ownership about purchased estate. But he or she has the possessory rights. Seller can not exercise the revendication against ‘Unregistered Real Estate Buyer.’ ‘Unregistered Real Estate Buyer’ can refuse to return the purchased estate to the seller by the rights based on ‘Exceptio Rei Venditae et Traditae.’ Right to claim Registration is to be regarded claim to credit and is subjected to extinctive prescription. There is a controversy about ‘double sales of real estate’ as one of the issues about ‘Unregistered Real Estate Buyer’ as well. Double sales of real estate means that a seller makes two sale contracts with two independent buyers on the specific real estate. For exemple, ‘A’ sold his or her own real estate to ‘B’. But before the registration, ‘A’ sells it to ‘C’ again and registers that. Double sale contracts hold good legally. In this case first purchaser’s ownership is not acknowledged for a certain real estate. In addition, in case where the second purchaser's active participation in the seller's action, court decision says, the second contract for the sale is invalid as an act against the social order set forth in the article 103 of the Civil Code, thereby protecting the first purchaser's status. But this opinion has a problem to solve the relations between the article 103 of the Civil Code and the article 746 of the Civil Code. In my opinion, It is a reasonable solution that first purchaser can exercise the right of seller’s claim of deletion against second purchaser in lieu of seller and first purchaser can realize the right to claim registration against seller.
  • 10.

    The Practice Based on the role of Adult Guardians and Advantage Care Planning in Japan

    Oh, Ho-Cheol | 2020, 8(2) | pp.305~325 | number of Cited : 0
    We currently live in an aged society in Korea and will enter the super-aged society by 2025. When we enter the super-aged society, there will be more dementia patients than the present, or more complicated and diverse problems in health care and care needed as the elderly. For example, a problem may arise as to how to receive medical care and care when the decision-making ability becomes insufficient due to pre-death or dementia. Accordingly, Japan revised and implemented 「Guidelines on the decision-making process of healthcare and care at the final stage of life (hereinafter referred to as guidelines) 」in March 2018. This “Guideline” defines the process of supporting decision-making in health care and care. ① When family members can estimate his or her intention, the estimated intention is respected and the best policy is taken against him or her. ② When family members, etc. are unable to estimate his or her intentions, he / she should fully communicate with the family as a person for himself / herself and take the best policy for him / her. Adult guardians, in 「Family member etc.」, include a wider range of people (such as close friends) than in kinship in a legal sense in which he or she trusts. Therefore, adult guardians (third party guardians) are naturally included in the 「family member etc.」. Therefore, according to this 「Guideline」, the adult guardians are expected to take the presumptions of his or her intentions and participate in conversations with experts and take the best policy for them when their intentions are not presumed. At this time, the most important thing in estimating their intention is Advance Care Planning (ACP). Therefore, we have seen that adult guardians should take responsibility and play a role in the process of writing an ACP.
  • 11.

    The Countermeasure against the Abuse of Criminal Complaints

    Park, Bong-Kyun , MoonKwi KIM | 2020, 8(2) | pp.327~345 | number of Cited : 2
    An amendment in 2020 to Criminal Procedure Act has balanced criminal investigation power between prosecutors and senior judicial police officers. Thus, the reform of a criminal complaint system is one of the justice polices on the criminal investigation implemented by Korea National Police Agency. Korea criminal justice system has longtime suffered from stigma characterized by ‘Kingdom of Criminal Complaint’. Criminal justice officers faced a tough challenge by frequent criminal complaints on a civil case. Accordingly, an efficient countermeasure is discussed among criminal justice officers to reject an improper criminal complaint. However sympathetic towards criminal justice officers’ feeling of being overburdened and the violation of suspects’ legal rights due to the abuse of criminal complaints, there might be a question that the legal protection may insufficiently provided for the victims of crimes. There has been a constitutional right of criminal victims’ statement on the trial since 1987. Nevertheless, the rejection of criminal complaints can unintentionally drive the constitutionally historical rights in peril because of the prohibition on private prosecution, monopoly of state on public prosecution, and firm existence of offense subject to criminal complaints. From the view points of criminal investigator, this research addresses in the literature review, the abuse of criminal complaints, the concept of victims of crimes, the precedent case of Constitutional Court regarding the right of statement on the trial, the rejection of criminal complaints, the offense subject to complaint. Conclusionally, a suggestion should be offered to foster the civilian industry of alternative dispute resolution. Also, both the prohibition of the abuse and the rejection process against the inappropriate criminal complaints are friendly stipulated in the Criminal Procedure Act.