Legal Theory & Practice Review 2021 KCI Impact Factor : 0.87

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2021, Vol.9, No.3

  • 1.

    A Sociological Study on Nurses’ Specialty Area Regulations - Specialized and non-specialized areas formed by professionalization -

    Song, Myeong-Hwan | 2021, 9(3) | pp.11~42 | number of Cited : 0
    It has been recognized that the acquisition of knowledge and skills to engage in the profession and the education thereof are carried out by the professional group and that the profession is empowered. Having these elements is a condition of a profession, and at the same time, inheriting the uniqueness of the profession. From ancient times, when it comes to professions, doctors, lawyers, and priests have been called the three black professions (Trois robes noires). These occupations represent a socially established status, and that ‘the predecessor form can be found in the pre-modern society long before industrialization,’ ‘received as a model by workers of many professions aiming at professionalization.’ It is a job that is being taken in. If so, how did the nursing profession become a profession? The professionalism of the nursing profession is revealed by the educational content in the training process, the acquisition of national examination qualifications, and the exclusive job content after qualification acquisition, as well as the recent sudden high-level professional education in graduate schools and the qualification recognition system by the professional group. However, the nursing profession was initially considered a semi- (or semi-professional) profession because it lacked the elements to become a professional position. It is also important to point out that it would be impossible to approach the reality of modern professions and professions with the concept of professional workers or professions. In recent years, the medical profession has been specialized and advanced due to the progress of division of labor, so it is also a problem whether it is the former ‘three black medical professions’ that can show the expertise of many professions. In particular, occupations in health, medical care, and welfare are human and service, which is far from the achievement of authority shown in the ‘black job.’ It is thought that it is necessary to show what kind of professionalization is in a relationship. This can be seen as a contrasting position between the so-called monopoly of knowledge on the professional side and the relative ignorance of the client or the public about it, as the basis of professional authority. This is because authoritative performance based on contrast such as the presence or absence of specialized knowledge requires a medical attitude based on an equal relationship between other medical staff and patients. Previous studies on nursing professions have tried to reveal professionalism through job or nursing practice ability, and research studies targeting individual nursing professionals have been the mainstream. Because the basic education for obtaining qualifications was not uniform and varied, there were individual differences in ability acquisition and necessity, and it seemed that it was because they tried to reveal the professionalism in relation to the individual's career orientation. The purpose of this thesis is to reveal the expertise of the nursing profession in the profession of human service, which is the ultimate in authority. First, the nursing profession is summarized from the point of study on the profession. Next, research on the professionalism of the nursing profession is difficult to find in its entirety as there is no continuous data accumulation or systematic overview of the research papers. To this end, we review the history of discussions about nursing professionalism in three aspects: job content of the nursing profession, autonomy related to the profession, and professional education. After that, the characteristic elements of the profession found so far and the professionalism of the nursing profession will be compared.
  • 2.

    A Study on ‘Auxiliary Acts of Treatment’ as a Nurse’s Job

    won, sang-chul | 2021, 9(3) | pp.43~58 | number of Cited : 0
    In Japan, there is no clearly defined regulation on what nursing work is. However, Article 5 of the Public Health Nurses Midwifery Nurse Act defines a nurse as “a person who has obtained a license from the Minister of Health, Labor and Welfare and whose business is providing medical care for the sick or nursing staff or assisting in medical treatment,” Article 31 of the same Act Paragraph 1 of Article 1 only stipulates that ‘a person who is not a nurse must not engage in the business stipulated in Article 5.’ In addition, after stipulating nurses, non-nursing personnel should not engage in the business stipulated in Article 5. Both are nursing professions (the scope of the nurse’s monopoly) and are generally understood to be nursing. Above all, it is not always possible to derive the details of the work performed by a nurse, and in particular, there is an action on the borderline of whether a nurse can perform it as a profession. Nurses use medical machines to award medicines, give instructions for medicines, and do not perform any other act that may cause sanitary harm unless directed by the attending physician or dentist. You should not do it, but you can take temporary emergency measures. Nurses who violate this rule face criminal punishment. Therefore, it is very important to clarify what a nurse’s job is and what it means to act as a medical assistant. In this study, the scope of the nurse’s work is reviewed, focusing on whether the acts of Article 37 of the Japanese Assistant Act are included in the nursing work stipulated in Article 5 of the Assisted Act. In the current situation in Korea where there is no nurse law, a study on the Japanese legal system will provide important implications.
  • 3.

    Responsibilities of nurses and nursing students

    Lee Sang hoon | 2021, 9(3) | pp.59~83 | number of Cited : 0
    According to the Medical Act, two types of work can be established as a nurse’s work: ‘care in convalescence’ and ‘assistance for treatment.’ Regarding “medical care”, it is called “Nurse’s original duties”, which include observation of patients’ symptoms, environmental maintenance, meal assistance, wiping and excretion care, and life guidance. In contrast, what is referred to as “assistance for treatment” requires a doctor’s instruction. ‘For relatively minor medical practices involving physical invasiveness, nurses’ medical practices are partially permitted under the doctor’s instructions. The specific content has changed with the times. At the present time, it is said that these include blood collection, intravenous injection, Ringer, manipulation of medical devices, and treatment. Nursing students are not nurses. In principle, the duties of a nurse cannot be performed by anyone other than a nurse. This is for the purpose of preventing health and hygiene risks by monopolizing the work of professional nurses. Therefore, it is not permissible to provide medical assistance even if there is a doctor's order. This is a logical conclusion. On the one hand, sitting alone or watching a video is not enough to understand nursing work. This is a worrisome point. If the purpose of the law is to be “risks for health and hygiene,” it is to strengthen the guidance and supervision of senior nurses and doctors. The need to practice nursing students is also clearly evident in tomorrow’s medical sector. In this regard, the understanding of the patient is a very important factor. In many medical institutions and facilities, when requesting practice for nursing students, consent is obtained rather than the patient. If not an agreement, ‘nursing student enters, I’m begging you.’ It is a phenomenon which is explained, the agreement made verbally, such as ‘recommended.’ For a limited time, but some general information, and explain the circumstances surrounding the medical field or corresponding points on the medical dispute. I hope that you understand a bit of the lawyer’s point of view and that it will be helpful in treating patients.
  • 4.

    An Organizational Factors in the Role Sharing of Medical Professions in U.S. Hospitals Focusing on Doctors, Nurses, and Non-Physician Clinicians

    Jongho Kim | 2021, 9(3) | pp.85~114 | number of Cited : 1
    The current state of the medical profession in the United States can be said to represent the unique American doctors and nurses working methods and the hospital organization created by the medical profession. In this paper, among the characteristics of hospitals in the United States, three characteristics of the medical organization are fragmented, rationalization and standardization are in progress, and an open system is being adopted. Discuss whether PA/NP has influenced the division of roles. It is absolutely not realistic to introduce the NP/PA system of the United States, such as the insurance system, the medical fee system, the number of medical workers, the income of doctors, and the nationality, to Korea. However, knowing the actual situation of the NP/PA system in the US can give hints for improving the current situation in Korea, and it is thought that it will contribute to the discussion on the promotion of team medical care in the future. When the right or wrong to introduce medical professions is debated in Korea, the system itself is established, objectively verifies the basic direction of the hospital organization and the roles of doctors and nurses, and how to establish and utilize the medical profession in a form suitable for the hospital organization in Korea. I think it’s more important to do it. In order to promote team medical care, the introduction of the NP/PA system is considered to be one of the effective means, and it is better to discuss in more detail the needs of the field, the division of roles, and the advantages and disadvantages of introducing them. Additional research tasks include the clarification of discretion and responsibility through the revision of related laws, establishment of professional training system and qualification test standards, and the understanding of health care workers and the public.
  • 5.

    A Study on the Sociological Meaning of Nursing

    Joung Soon Hyoung | 2021, 9(3) | pp.115~134 | number of Cited : 0
    The purpose of this study is to seek communication in nursing and to establish the foundation of the social system. The core of this thesis is that our communication is not stable, and the same is true in nurses’ communication. In communication, we must create understanding between ourselves and others. And, of course, the problem of the relationship between oneself and others is not irrelevant to the relationship between the nurse and the patient. In communication, understanding is a matter of the parties, and sharing of understanding means creating an understanding between the communicating parties. One-way verbal communication is a problem for nursing activities, and on the other hand, since the nursing system is also a social system, the social system forms an expectation structure. However, when the nursing environment changes, the nursing system must also change itself. Therefore, when we want to recognize these issues, we can analyze the nurse from a sociological perspective.
  • 6.

    A Study on the Securement of Safety through Proper Regulation in Medical Practices - Focusing on measures to secure medical safety through proper regulation in medical Practices -

    Ko In Seok | 2021, 9(3) | pp.135~154 | number of Cited : 1
    The absolute range of medical practices that only doctors can do in Korea is too wide, and the heavy burden of doctors is the reality. Therefore, it is suggested that the medical practice of doctors should be appropriately shared with other medical staff, such as nurses, to secure the medical safety of other medical staff, while ensuring the medical safety of other medical staff, such as well. In some cases, adequate regulation is required in medical institutions where discretionary judgment is required to ensure patient safety for medical practice by doctors. Excessive regulations on medical practices may not guarantee patient safety by violating the qualitative service of medical care, or may lead to poor treatment, which may lead to the dissolution of the social safety net of medical practice. In this paper, we are going to review the legal system's problems that have emerged as excessive regulations in medical practice under the Medical Law and suggest ways to improve the medical safety and qualitative medical service of patients through proper regulations.
  • 7.

    Legal Review for Improving the Effectiveness of the Professional Nursing System - Focusing on the Enactment Bill on Nursing method -

    Moon Jae Tae , Oh, Ho-Cheol | 2021, 9(3) | pp.155~184 | number of Cited : 1
    The recent outbreak of COVID-19 and various diseases is increasing social dependence on medical services. However, the concentration of population in large cities, the spread of an intensive economic system, and the shortage of doctors are factors that cannot provide sufficient medical services. In this regard, Korea is operating a professional nurse system with the aim of effectively replenishing medical professionals due to the shortage of medical personnel. However, the purpose of the introduction of the professional nurse system is not properly reflected. Currently, the professional nurse system is in operation, but there are no specific standards for what kind of work a professional nurse should perform in which field. As a result, professional nurses cannot perform simple medical activities in medical blind spots. Therefore, it is often the case that appropriate medical services for the local residents are not provided. As such, the medical field and public opinion are demanding improvement in response to the increase in irrational cases related to the operation of the professional nurse system. In this regard, the National Assembly recently introduced the 'Nursing Act'. This bill provided the legal basis for professional nurses to legally practice medical care based on their professionalism. The public and the medical community expect the bill to solve the chronic shortage of doctors and to fully utilize the expertise of nurses. Therefore, the nursing bill should be able to guarantee the people's right to health in a thick way based on the consensus of the medical community. To this end, it is necessary to review in-depth whether the bill contains specific contents for guaranteeing the people's right to health by resetting the scope of professional nurses' work.
  • 8.

    The Mortgage's Legal Relation for “Chonsegwon”

    kimsangmoo | 2021, 9(3) | pp.187~211 | number of Cited : 0
    Abstract PDF
    This paper will discuss about when the period of contract has expired, the Mortgage legal relation which object is Chonsegwon(right to registered lease on deposit basis), and emphasize on Chonsegwon for argumentative purposes operation process. To understand the Chonsegwon legal nature, which was required by the Mortgage legal relation, the theory said there were rival opinions between "pure usufruct real right", "security real right" and "possess the pure usufruct real right and security real right". When the Civil Code enacted, the legal nature was pure usufruct real right. However, in 1984 from the Civil Code reform, the preferential payment right which was recognized by security real right granted to the creditor of lease, thus most of the theory said that the legal nature was the third one, it was the same shown in previous literature. Then view whether the Chonsegwon and Chonsegwon Mortgage become extinct ineffective when its existence period was expired, we can see whether or not Chonsegwon will be extinct. The theory and precedent thought pure usufruct real right was lost. Despite whether or not Chonsegwon Mortgage will be extinct, they thought the Chonsegwon was lost. As Chonsegwon Mortgage' legal position, connected with Chonsegwon auction claim's commendation, before the its existence period is lost it has the chance to transfer, which owned pure usufruct real right. Therefore, Chonsegwon mortgagee can claim the auction for the Chonsegwon, but after its existence period was lost. If we use pure usufruct real right lost theory, the creditor of lease cannot transfer the pure usufruct real right, but can only transfer Chonsegwon restoration claim and security a real right together. So, we can say after the existence period was expired, Chonsegwon mortgagee cannot claim the auction. As for the method of execution, Chonsegwon mortgagee depended on the Civil Code Article 370, Article 342 and Civil execution law Clause 2 Article 273. (It's same to the old Civil Proceedings Act Article 733 Clause 2) can take the seize, an order of collection and an assignment order from the Chonsegwon return receivables, or from the other creditor's execution procedure distribution postulation can gain receivables. Like the Civil Law Amendment, "Mortgage for Chonsegwon, mortgagee can demand the deposit money refund receivables by himself within the preferential payment right. It's depended on Clause 3 Article 353." We think it is the good measures to apply to the Pledge of Claims's operation process.
  • 9.

    Re-examination of the guarantee of equal rights for the disabled at the constitutional level

    Junghee Jung | 2021, 9(3) | pp.213~238 | number of Cited : 1
    Every human being can live like a human being, and he has the right to live from birth. Article 10, first sentence of our Constitution stipulates that all citizens have ‘dignity and value as a human being’ and ‘the right to lead a life worthy of human being’ (Article 34 (1)). These rights are the rights that all citizens can enjoy, and the disabled are also the right to be enjoyed as Korean citizens. In the Universal Declaration of Human Rights (1948), “All persons are born free and equal in dignity and rights” (Article 1). Furthermore, “Everyone shall have all the rights and freedoms set forth in this Declaration, without discrimination of any kind on the basis of sex, race, language, religion, political, ideological, cultural or social origin, property, birth or any other class (status), etc. is entitled to be guaranteed” (Article 2). As of the end of 2019, the number of disabled people in Korea is 5% of the total population, or about 2.62 million. Although there are cases where the cause of disability is congenital, more than 60% of cases are caused by acquired industrial accidents, traffic accidents, or unexpected accidents or diseases. Considering this reality, no one can be free from disability and cannot be excluded from it. Currently, various employment policies related to the disabled in Korea have significant implications for the right to work and equality of persons with disabilities. This is the ideological starting point and core value of the Constitution to ensure that people with disabilities can lead a humane life through a professional life that is appropriate for their individual abilities and, of course, guarantee the dignity and value of human beings. Having a job that matches the abilities of the disabled is significant in that it not only pursues material independence but also enables self-realization through social integration. However, the disabled are not free from tangible and intangible social prejudices and stigma due to the poor characteristics of disability, and as a result, they face a realistic barrier to finding a job suitable for their abilities and aptitudes. In addition, due to the characteristics of the market in which the labor market principle operates, persons with disabilities are subject to considerable restrictions in freely obtaining a place of employment on their own. In order to ensure the provision of the right to work (the right to work) in Article 32 Paragraph 1 of the Constitution, the state needs legal measures to secure the economic foundation as a means for social and economic survival of the disabled. As a result, the law enacted is the “Article 28 Paragraph 1 of the Employment Promotion and Vocational Rehabilitation Act for the Disabled (hereinafter referred to as the “Employment Act for the Disabled”). The employment law system for the disabled is broadly divided into the employment quota system, which requires mandatory employment in order to respond to the employment crisis of the disabled, and the anti-discrimination system, which prohibits various social discrimination against non-disabled people. The employment quota system has achieved tangible quantitative growth since the enactment and introduction of the Employment of Persons with Disabilities Act in 1990. In addition, as the 「Act on the Prohibition of Discrimination against Persons with Disabilities and Remedies for Rights, Etc.」 (hereinafter referred to as the “Act on the Prevention of Discrimination against Persons with Disabilities”) was enacted in 2007, the employment quota system and the anti-discrimination system coexist for social integration. Article 11 of the current Constitution, which prohibits discrimination in employment of persons with disabilities, stipulates the right to equality and the exclusion of discrimination in any form. There is a ban on unfavorable discrimination. Separately, there is the “Disability Discrimination Act,” which prohibits discrimination on the basis of disability. Therefore, in this study, we intend to discuss the direction of improvement that suits our constitution of the employment law for the disabled in today's reality, 10 years after the implementation of the anti-discrimination system for the disabled. The purpose of this study is to examine the operational problems of the employment quota system and the anti-discrimination laws, and consider the operating conditions and rights of work in advanced countries. Going one step further, this study aims to effectively guarantee and improve the social equality rights of the disabled as human beings guaranteed by our constitution.
  • 10.

    Legal research on the introduction of Green Wall for the Management of Fine Dust on the Road

    Lee Young Woo | 2021, 9(3) | pp.239~251 | number of Cited : 0
    The state is obliged to take active measures, such as enacting and revising related laws, to actively guarantee the basic rights of the people's health and environmental rights from fine dust generated on roads. Although the government is currently establishing and implementing various policies, the effectiveness of the policy felt by the public is significantly low, and it is necessary to create a foundation for the clean air that the public should enjoy. In order to apply the greenwall system technology for road protection early, it is expected that the fine dust on the road will gradually decrease if the standards set by the Road Act, the Road Safety Facility Installation and Management Guidelines, etc. are reviewed.
  • 11.

    A Study on the Korean Legal System of Non-Performance Liability

    Pu, Dong-Ho | 2021, 9(3) | pp.253~294 | number of Cited : 1
    In today’s society, by contrast to the past, according to the progress of globalization and informatization, international transactions are increasing, and the importance of contract increases to a large extent and role of contract grows significantly. Thereby, to cope with these situations, the necessity of common rules applicable to international transactions was emphasized, and there were some attempts to make uniform law. And Several results were already obtained, such as United Nations Convention on Contracts for the International Sale of Goods, and Principles of European Contract Law, etc. On the other hand, many countries in the world make active progress in revising civil law for the modernization of the civil law. In these situations, how to revise Korean Civil Code is very important. Therefore, this article intends to observe the recent international trends of the law of non-performance of obligations, which is an important subject in the field of civil law or contract law. For these purposes, at first, this article deals with the United Nations Convention on Contracts for the International Sale of Goods, which are important rules in the field of international contract law, and German Civil Code and the revision of the Japanese Civil Code, which have close relations with Korean Civil Law. Korea's trade dependency in gross domestic product(GDP) is very large. So Korea should create national wealth by international trade. Therefore reducing gaps between norms which are applied in international trades and norms which are applied in domestic transactions is desirable. For the purpose of aforesaid goal, this article suggests the two requirements. First, The initial impossibility must be incorporated into contract liability. Then the contract for the purpose of payment of the initial impossibility is valid. and The Korean Civil Code article 535 must be deleted. Because it is founded on the premise that impossibility has no obligation. Second, Principle of fault liability should be abrogated in rescission of contract.
  • 12.

    Unification of International Standards for Security Services in the Global Security Guard Market

    CHUN YONG TAE , KIM HYEONG SEOK | 2021, 9(3) | pp.297~325 | number of Cited : 0
    In September 2015, ISO 18788 established and announced the certification for business development activities of the security industry. After an overview of the international business development of the security industry, this paper discusses the outline of ISO, its purpose, the background behind the introduction of such international regulation at this time, and the problems of our response in the process. In addition, in the case of international expansion of the Korean security industry or the consignment of necessary expenses in the host country in case a Korean company conducts business activities abroad, it examines what points should be considered and observed. Through this, it will be possible to find the significance of the international economic community for the standardization of behavior of international security guard business affairs. In the field of standardization of security services applied to the global security industry market, prior studies are extremely limited. However, in countries and regions where security is not necessarily good, human rights, basic freedoms, and compliance with laws and regulations, the opportunity for companies and various organizations to play an active part in the field of Korea’s industrial economy and development assistance is rapidly expanding. At that time, how we can work is the most important issue, and what we need for this is an efficient security system. In this regard, our officials were very indifferent to the international standardization of international security activities. However, the “ISO Management System for Private Security Services” published this time provides an opportunity to seriously think about international security norms. The ISO standard was reviewed and drafted by multinational security companies and security companies with business headquarters in the US and Europe, but Korean officials did not participate at all. Reflecting that, in Korea, the industry, the government, or research institutes cannot escape the lack of knowledge about research in this field, so the accumulation of research in this field is an urgent need. I hope that the discussion in this paper will be the starting point and further research will be triggered.
  • 13.

    Improvement of Profiling System Using Artificial Intelligence Search Function

    Lee Keon Su | 2021, 9(3) | pp.327~343 | number of Cited : 0
    Abstract PDF
    The police are receiving real-time reports on missing persons, and the information search system is convenient for the missing language search system depending on the situation, requiring quick search and reliable results. Accordingly, it requires accurate supply of missing-related information, not just a list of missing-related information, but also association of information and organization of documents. Currently, the police are at the threshold of checking missing data using simple search functions in the profiling system. With telecommunication mobile equipment expanding, there is no dedicated search engine for mobile devices. Therefore, the system compatibility of mobile hardware and the utilization of profiling system DB should be increased. Through the development of the Internet and the development of the information system following the establishment of the database, the police have accumulated a huge amount of event-related information, and related information is also being generated at this point in time. Despite this environment, however, police have not been able to quickly find exactly all the information they need in the entire data. In the profiling system, searching for missing persons-related information has significantly increased the need for efficient real-time retrieval of the information desired by the responsible missing officer from this large amount of information. Within the profiling system, searches are currently being conducted with limited content to check and understand related data through the natural language word search function. Within the profiling system, various information retrieval systems related to missing persons should be developed as needed. The content of information retrieval technology is rapidly increasing due to the development of police information technology, such as search for missing documents, web document search, query response, document classification by type of missing persons, user interface technology, and missing documents summary system. Under these circumstances, the police would like to propose ways to activate missing investigations by establishing an artificial intelligence classification search system through general keyword search and classification search.