Legal Theory & Practice Review 2021 KCI Impact Factor : 0.87

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pISSN : 2288-1840

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2022, Vol.10, No.3

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  • 1.

    Changes of Generally-accepted Idea in the Society on Tattooing and Its Subsequent Challenges

    Park Jeong Il | 2022, 10(3) | pp.11~32 | number of Cited : 0
    Abstract
    Today, tattoos have been turned into not objects of hatred that must be hidden but means of expressing individuality and aesthetic sense. The current legislation sees tattoo procedures as actions that can cause health and hygiene hazards if medical personnel do not perform. However, the reality is that many people go to tattoo parlors instead of medical institutions to get tattoos. The main reason is that the doctor's license can not guarantee the subjects’ satisfaction of aesthetic desires that they want. The subjects that want to get tattoos also think artistic ability and manual dexterity is more important than anything. In this situation where the gap between norms and reality is very large, many tattoo companies have steadily raised questions with related provisions such as the Medical Service Act, which prohibit non-medical personnel from performing tattoo procedures. In 2022, the Constitutional Court recognizes again that the provisions are constitutional. However, in the 2022 Constitutional Court decision, there was an increase in the number of members that pointed out the unconstitutionality of the provisions compared to the precedent in 2016. It seems to reflect changes in social norms for the relevant provisions, so in the next decision, it is expected that legal interpretation will be made to break away from the general and uniform prohibition. It is true that the freedom for non-medical personnel to perform tattoo procedures has been excessively limited due to a broad interpretation of the scope of medical practice. As society develops, people’s awareness of rights relief is growing. So it is considered that conflicts between medical occupation group and medical-like occupation groups including the tattoo procedure occupation will ensue more frequently. Protection of the lives and health of people cannot be subject to concessions and compromises. Though it is true that tattoo procedures intentionally cause irritation and change in the skin and require maximum attention, considering the impact on the body, it cannot be said that it does require a high level of ability and quality that only doctors can have. The emphasis on hygiene for tattoo facilities and treatment tools is more important value. Therefore in the tattoo law to be enacted later, it is necessary to reorganize regulatory measures to effectively secure hygiene before and after tattoo procedures so that non-medical people can resolve their doubts about securing the safety of tattoo procedures.
  • 2.

    A review on the American self-determination support principle as an alternative to the adult guardianship system - Focusing on US case law, enactment law, and academic theories -

    JINAH PARK , Oh, Ho-Cheol | 2022, 10(3) | pp.33~59 | number of Cited : 0
    Abstract
    The previous sentence of incompetency and quasi-incompetent system in South Korean civil law was criticized for not considering the decision-making ability of the ward and being a system that deprives or restricts human behavior on a uniform basis. After a lengthy discussion on the problems of the old system, on July 1st, 2013, an adult guardianship system totally different from the earlier one was introduced to secure the self-decision making and human rights of the ward, based on the principle of the utilization of one's remaining ability, respect for opinions, and normalization. However, before this act came into force, South Korea joined and ratified the UN Convention on the Rights of Persons with Disabilities in 2008. Article 12 of this convention declares that persons with disabilities have the 「legal capacity」 which means that persons with disabilities have the legal capacity or qualifications to fully and effectively participate in social activities, including legal and agentive capacity on an equal basis with others in all areas of life. This raised problems in the South Korean adult guardianship system and its compatibility. In other words, while it shows improvement in that it secures self-determination and respects human rights compared to the previous sentence of incompetency and quasi-incompetent system, the problems remain as the structure in which someone decides on behalf of the ward has unchanged a lot. In this context, recently, the legal principle of the 「support for self-determination」, which assures active support for the will of the ward, breaking away from the existing system in which the guardian decides on behalf of the ward, has emerged in the United States in terms of the guardianship system. Although the United States did not join the UN Convention on the Rights of Persons with Disabilities, the United States has made groundbreaking judgements in the Jenny Hatch case and Dameris L case based on it, forming the principle of self-determination as a less restrictive alternative. The principle of self-determination assists one's decision-making in which he or she understands the nature and consequences of a decision on one's identity and property so that he or she can make their own decision, and supports the decision-making in case the decision already made matches one's will. It has appeared as a law in several states, and many scholars are making theories supporting this. In particular, the fact that 「The Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (UGCOPAA)」 in the United States prescribes support for self-determination as a less restrictive alternative to the guardian system, and 「The Self-Determination Support Contract Act」 works as a less prohibitory act, stipulating a contract conclusion through self-determination, is implications for the Adult Guardianship system in South Korea.
  • 3.

    A Study on Legal Issues Surrounding Media Reporting and Human Rights

    Lee Sang hoon | 2022, 10(3) | pp.63~95 | number of Cited : 0
    Abstract
    Humans have the right to keep secrets as well as the right to know the truth. Therefore, it is a very difficult issue to prioritize between the right to know and the privacy of the reporter. However, the ‘right to know’ cannot be said to be an established right yet, and when it is exercised on an individual, it is necessary to examine the necessity of digging into the privacy domain as well as the public or public interest of the content. In addition, if the ‘suspicion’ that a crime with high social attention is reported is widely and continuously reported, even after the acquittal or false facts are confirmed, people will continue to receive suspicion from others. In addition, the media reports that ‘arrest is either guilty or criminal,’ so even if an acquittal or a false arrest is found, disciplinary dismissal or divorce cases cannot be reversed. As a result, even if it is legally and formally in the form of restoration of honor, as a result of continuing exposure to prejudice for a long time, they are driven into the same situation as ‘social annihilation.’ Also, there are cases where even if the media tried to issue an apology advertisement or verification program by filing a trial based on this damage, in the end, the original life destroyed by the media reports could not be restored. Taking this situation into account, this study decided to examine specific cases at home and abroad on how media reporting infringes on reporters’ human rights protection and how to remedy it.
  • 4.

    A little Consideration on the Legal Handling of Parody Trademarks in the US With regard to Freedom of Expression under the Constitution

    Lee Keon Su | 2022, 10(3) | pp.97~128 | number of Cited : 0
    Abstract
    As lawsuits are increasing due to disputes over the use of parody trademarks, interest is increasing academically. In neighboring Japan, parody trademark discussions are actively taking place. However, in Korea, there is no research in this field from a legal point of view. This article introduces the case law and controversy over the ‘parody trademark’ in the United States, and examines the approach that should be applied to our legislation. In the advertisement, the element of being an invisible audience to the reader is fatal. Nothing is more fickle and tricky than the reader of an ad to the sender of an ad. In order to stop these readers and transform them into avid ad readers, what can we expect from an ad design perspective? When considering the efficiency of advertising communication, pay attention to a design technique called ‘parody,’ which is one of the effective methods, and consider what problems arise when ‘parody advertisements’ in actual advertising expressions are used and I will saw how to solve them. Parody is the original authority and humor exists as booing and ridicule about the original, but some kind of poison always lurks there. However, as I have been considering the advertising design parodies, instead of poison, humor and bright impact are conveyed to the fore. I think this is the characteristic of parody through advertising design. However, not only does the other party feel well, but in the case of commercial advertisements, it can directly affect the preferences or sales of products, which always implies legal dispute. In the background of the parody characteristics that can only be expressed in such advertising expressions, the main mission of the advertisement is ‘advertising is to draw the life of tomorrow’s dream.’ This article aims to clarify the reasons why parody advertisements in the United States arose in legal disputes, and on what criteria the court proposed dispute resolution.
  • 5.

    A Considering the Crisis of Climate Change and the Responses that Companies Should Take

    최용근 | 2022, 10(3) | pp.129~167 | number of Cited : 0
    Abstract
    As many have pointed out so far, measures against global warming can be a business opportunity, and many companies are moving towards its realization. On the other hand, the momentum of global greenhouse gas emission growth has slowed due to the economic downturn, and some countries are predicting that it will start to decline, and the global warming problem appears to be heading in the direction of solving the problem ‘at first glance.’ As a result, interest in measures to combat global warming has diminished and the importance of measures to combat global warming has diminished. Therefore, this study intends to discuss how companies should recognize global warming in order to appeal again to the need for global warming countermeasures. In particular, we need to focus on the aspects of risk and recognize the issues of corporate governance and global warming. In business operations, risks associated with global warming are often classified into three categories: (1) physical risks, (2) regulatory risks, and (3) market risks. Physical risk can be defined as the risk that physical phenomena caused by climate change, such as sea level rise and abnormal weather, affect a company's business activities. For example, factories located in coastal areas risk flooding and shutting down operations due to rising sea levels, and there is a risk that rising temperatures and drought will affect harvests in agriculture, forestry and fisheries. Regulatory risk can be defined as the risk that greenhouse gas emission regulations and energy management regulations to avoid global warming may limit business activities or impair business profitability. Representative risks include emissions trading systems and environmental taxes, and are the most easily imaginable risks associated with global warming. We must thoroughly examine the various regulatory trends and consider their impact on our company. Market risk can be defined as the risk that changes in social and consumer demand due to global warming will reduce or disappear business opportunities. This includes the risk of significant damage to our reputation in the global warming sector due to inadequate responses to physical and regulatory risks, and consequently loss of support from society and consumers. When considering market risk, it is important to assume changes in social and consumer demand. These changes may arise due to physical and regulatory risks. Therefore, to understand the impact of market risk, both physical and regulatory risks must be considered. Currently, many companies are still waiting and waiting to respond to the global warming problem. Waiting and continuing to watch increases the risk. A real wait to respond to the risk of global warming will be carried out after completing the preparations mentioned in this study.
  • 6.

    A Study on the Standard of Effective Regional Industrial Policy in the Era of Decentralization Focusing on the case of Japan

    Joon Mo Kang | 2022, 10(3) | pp.169~199 | number of Cited : 0
    Abstract
    In a situation where industrial clustering is attracting attention recently, cases of industrial clustering areas nationwide have been reported through theoretical and empirical studies, and there seems to be little interest in the field of law, but access is increasing in various fields such as economic geography and SME theory. Industrial clustering refers to a state in which a large number of companies that are closely related to each other are accumulated in one relatively small area. As a specific industrial policy, countries around the world can also see a movement to create industrial clusters to revitalize the region. For example, the industrial cluster plan aims to create an abundance of industries and companies that develop new areas with growth potential in the region, and regional administrative agencies are the center of the industry-academia linkage such as companies and universities, companies and public institutions. I am also working hard. The background of the policy trend to revitalize such industrial aggregation is the decline of the local economy and the decline of local industries in the region. Based on this socio-economic situation, this paper aims to systematically examine from the basic theory to actual cases in order to forecast the future of regional industrial policy. Regional industrial policies are inevitably gaining importance in various values ​​and individualization. From this sense of crisis in the industrial structure, I think that the existence and revitalization of industrial clusters itself has policy significance. Therefore, in order to promote local industries that promote spontaneous development, it is important for local residents to fully grasp their local resources and utilize them as a source of regional superiority and individuality. At this time, local governments, such as cities, counties, and districts, should play an important role as the policy subject promoting the response. In addition, in order to promote the promotion of local industries, the creation of a structure in which various local actors can cooperate is also an important role of the municipalities. It can be said that in the history of Korea’s economic development, a vertical division of labor relations has been formed in the region, mainly centering on the establishments of large corporations, and has supported the regional economy. However, since the 1990s, the reorganization of the division of labor has become inevitable due to various factors such as intensifying international competition, industrial maturation due to recession, and shift of production to Asia. In this situation, it is academically meaningful to find ways to save local or regional economies from various experiences.
  • 7.

    The Threshold of Police Danger in Intimate Relations

    Park, woong-kwang | 2022, 10(3) | pp.201~221 | number of Cited : 0
    Abstract PDF
    Research on the problems and improvement measures of national response to risks or crimes in close relationships such as domestic violence and child abuse has been conducted by a number of researchers since the relevant laws were enacted. However, despite previous research and practical improvement efforts, many overlooked that the reason why similar problems are still repeatedly raised is that police public power intervenes within intimate areas such as homes. In particular, in relation to the principle of complementarity (complementarity), it was exposed to the limitation that ifonly the role as the initial intervention entity of the police was emphasized, the connection with other specialized institutions would become unstable. It is necessary to suggest that an approach should be taken in terms of who is the most optimal subject to solve the situation. In addition, many studies have been conducted based on the implementation and policy of the autonomous police system itself, but discussions on risks in intimate areas or the concept of police have not been conducted. Therefore, it is also very meaningful to review various police law issues, including the autonomous police system, in relation to intimate areas.
  • 8.

    A Consideration of the Trust Governing Law in the Secret Trusts of Anglo-Saxon Common Law and the Hague Convention of the Approval of Secret Trusts

    Jongho Kim | 2022, 10(3) | pp.223~262 | number of Cited : 0
    Abstract
    Secret trusts are difficult and incomprehensible trusts. According to the classification of the trust, it is very difficult to accurately locate where it is located. Therefore, it is necessary to discuss what kind of trust is similar to a secret trust in the classification of the trust. It seems to be understood as legal trust, constituent trust, and presumed trust in Korea. I don’t think it is possible to say unequivocally since secret trusts include complete secret trusts and semi-secret trusts. A secret trust can be essentially said to be an obligation under the equity law in which property is passed on to the trustee for the sake of his intended goal during the survival of the testator. Secret trust occurs when the testator performs the gift of property with the following intention. That is, when the recipient made a promise to hold it as a trust for a third party whose identity is not clear in the will. In addition, a complete secret trust occurs when the bequest, which is the object of the trust, is completely entrusted to the beneficiary by the appearance of a will, and both the facts of existence of the trust and the agreement (conditions) are hidden (confidentially). A semi-secret trust arises when the bequest, which is the object of the trust, is entrusted to the beneficiary as the trustee in the appearance of a will, and the trust’s terms and conditions are only hidden in such a trust. As for the establishment of a trust and the method of determining the governing law (“Trust Governing Law”), the general rules for the application of the law (“General Regulations Act”) do not have prestigious provisions and are left to interpretation. In addition, although precedents of trust cases including external factors have recently emerged, there have been few cases of disputes between the parties over the provisions of the governing law in the trust contract. There was no case in which the position of precedent was stated. In this situation, it can be said that clarification of the interpretation of the general rule of law by theories is important, but most of the interpretation of the general rule of law that has been built up by previous studies on international trust issues was greatly influenced by the British-American conflicts of international law that presupposes traditional trust practice. The review in terms of whether or not they are valid even in the present day in which trust practice is diversified was in a state of insufficient. Therefore, this paper attempted to present a reasonable solution to the disputed issue in interpretive theory of the General Regulations over the method of determining the governing trust law from the premise of modern trust practice.
  • 9.

    Understanding the Pledge of Movables in the Civil Code of China

    Jang, Seok-cheon | 2022, 10(3) | pp.263~279 | number of Cited : 0
    Abstract
    After the establishment of the People's Republic of China in 1949, China felt the need for a civil code to regulate legal problems arising from the partial recognition of the private property system. After that, after much effort, the unified Civil Code was enacted in 2020. China In 1978, as China advocated reform and opening policies, the economy developed, urbanization, and industrialization advanced, and individual financial demand increased rapidly. However, while China advocates a socialist market economy system, it imposes many restrictions on individual ownership of land. As a result, the demand for pledges as collateral for individuals to receive loans from financial institutions is being used more than in other countries. Focusing on this point, this paper examines how the pledge system has changed in China since the enactment of the Civil Code based on the Civil Code. Through this, I would like to convey some knowledge of China's security system to individuals who want to enter China.
  • 10.

    Recent Trends and Implications of Absolute Life Imprisonment as an Alternative to the Abolition of the Death Penalty in the United States - Focusing on Judgment in the Supreme Court -

    Yoo Jung Hwa , Lee,Hyeong Seok | 2022, 10(3) | pp.281~312 | number of Cited : 0
    Abstract
    Life imprisonment is similar to expulsion in history, and it is a punishment that reproduces the cruelty of expulsion in modern society. Inmates sentenced to life imprisonment are deprived of their basic human rights and all rights as human beings because they are expelled and isolated from society. The significance of the absolute life sentence is first, from the point of view of retribution. It means the lifelong imprisonment of the offender in a correctional facility as a responsibility for the criminal act. Second, it is a practical point of view. It means that criminals do not have the will to reform or improve their behavior and need to be permanently isolated from society. Life imprisonment is a sentence to end life in prison. Life imprisonment not only undermines the dignity of the prisoner and completely excludes the opportunity to escape from the restraints of the state, but also means depriving them of hope for a return to society. Among life sentences, absolute life imprisonment without parole has no possibility of reexamination of the decision. It is cruel and inhuman to judge that criminals are absolutely impossible to return to society. The reason is that depriving criminals of opportunities for reform and improvement and making the future unpredictable is a violation of criminal human rights. Even in Korea, discussion about life imprisonment as an alternative to the death penalty is emerging. In this paper, based on the recent US Supreme Court decision, I would like to discuss whether life imprisonment can replace the death penalty.
  • 11.

    A review on the necessity of enacting the Nursing Act

    Song, Myeong-Hwan | 2022, 10(3) | pp.313~341 | number of Cited : 0
    Abstract
    Globally, the Nursing Act is being enacted to protect the rights and interests of patients and consumers who receive nursing services by stipulating the education, training, and licensing system of professional nursing personnel, thereby producing high-quality nursing personnel. The purpose of the enactment of the Nursing Act currently proposed by the National Assembly is to contribute to the promotion of public health and patient safety by enacting the Nursing Act to secure skilled nursing manpower and to implement a systematic and comprehensive nursing policy to resolve the imbalance in supply and demand between regions. Korea, which has the fastest aging rate in the world, entered an aged society in 2017, with the elderly population accounting for 14% of the total population, and will enter a super-aged society in 2025, with the elderly population exceeding 20%. And the disease structure also changed from acute disease to chronic disease. In response to these changes in the demographic and disease structure, advanced countries ahead of us reformed the health care system in the 1980s and 1990s to reform the inefficient medical system and reduce medical expenses for the elderly. Through this, the medical system centered on hospital and treatment was changed to a medical system centered on regional and prevention. In addition, securing skilled nursing personnel due to the outbreak of novel infectious diseases such as Corona 19 is an urgent policy task worldwide, so the necessity of the Nursing Act is more urgent. Currently, the Nursing Bill has been approved by the National Assembly's Health and Welfare Committee, and only the Legislative Judiciary Committee and the plenary session remain. This article discusses each issue raised in relation to the enactment of the Nursing Act in the first part. In the latter part, the necessity of the Nursing Act is presented by examining the validity of the arguments of the negative aspects as well as the positive aspects of the enactment of the Nursing Act.
  • 12.

    A Study on the Lowering the Age of Law-intruding Juveniles

    seunghun Jeom | 2022, 10(3) | pp.345~367 | number of Cited : 0
    Abstract
    The public's shock and concern are increasing very much about a series of juvenile delinquencies that have occurred recently. A juvenile’s mental immaturity in comparison with physical development leads to lacking emotional control, being apt to commit impulsive crimes, and showing a tendency to be easily tempted by the surroundings. A reason that the issue of lowering the age of law-intruding juveniles among young offenders continues to emerge is because of a rapid rise in law-intruding juveniles. In accordance with the statistics by the National Police Agency and by the court of law, the law-intruding juveniles have been increasing every year for the last five years. Most of the law-intruding juveniles were 13 years old. They were analyzed to be 72.7% of the total law-intruding juveniles. Hence, the discussions about the age of law-intruding juveniles are being made. The National Assembly is also being proposed the amendments of the Juvenile Law and Criminal Law. Even the government came forward the preparatory work of lowering the age of law-intruding juveniles. The downgrade in the age of law-intruding juveniles is what reduces its scope by dropping the age limit for the criminal minors from 14 to 12. However, whether the lower limit of criminal sanctions, which may have an absolute influence upon juveniles’ life, will be set at what age corresponds to an area where the the self-responsibility principle and the protectionism are mixed. There is also a criticism as saying that the ideology of protectionism should be applied even to the criminal procedure as well as to the juvenile protection procedure. Nevertheless, if juveniles who committed a violent crime are not punished properly just because of being young, this could be rather aiding and abetting a crime. It might be the result of driving them down a worse path. Moreover, what raises the alarm by strictly enforcing the standard of the law against criminals who repeatedly commit violent crimes by exploiting the fact that they are juvenile perpetrators could be a way to reduce a crime even a little. It will be below examined the low age pattern and the ferocity phenomenon in law-intruding juveniles, the problem about which the law-intruding juveniles themselves are unconscious or abuse the criminality, and the issue of criteria for judging the liability incompetence. And after looking into the revised bill that is being proposed by the National Assembly, there will be a consideration on the issues that will need to be contemplated when coming to lower the age of law-intruding juveniles. The human rights of the perpetrators are important as well. But the law should protect the victim before that. A crime is thought to be likely declined given coming to be settled as the social norm the perception that committing a crime leads to being punished reasonably regardless of age.
  • 13.

    A recent study of the National Security Law in the United States and its implications

    Park Woong Shin | 2022, 10(3) | pp.369~404 | number of Cited : 0
    Abstract
    National security is an abbreviation for national security. Protecting the safety of the state from various threats can be seen as national security, which inevitably leads to a problem that the target of the threat is too wide, which leads to a multilateral interpretation of national security. Therefore, the reality is that it is not easy to approach the concept of national security academically because the concept of national security itself is too broad. However, if safety is not premised, happiness and prosperity are unreachable utopia, and it is natural that the security of the country is not secured to meet the safety and further happiness and prosperity of the community member of the country. Therefore, the reality that research on national security has not been conducted for various reasons, especially out of law, needs to be sufficiently improved. And this is the same in the individual area of scientific investigation into national security. Considering the reality of the division of the two Koreas and the international political stance surrounding Korea, national security is not just a textbook, but a guarantee of our daily lives. The struggle against objects that threaten national security cannot escape the limits of the rule of law, and to do so, legislation and institutions targeting national security and advanced scientific investigation techniques by them are needed. Therefore, in order to strengthen our national security response capabilities, we will need the wisdom to look at and choose best practices from other countries. And the country that gives us the most talking points will be the United States. From the country of immigrants to the world's superpower, the history of the United States can be seen as a history of struggle in a way. From the two world wars to the Cold War with the Soviet Union, to the Vietnam War and the invasion of Iraq to the recent Afghanistan war, the United States has gained its current international political status through the struggle against numerous security threats. The United States has detailed laws and systems in all areas of national security, including national information collection and analysis capabilities, legal enforcement capabilities, and national defense capabilities. In particular, it is worth paying particular attention in that in Korea, normative studies are also subject to active review of the area of national information that is passively approached.