Pub Date : 2023-03-30DOI: 10.22397/wlri.2023.39.1.87
Yong-In Shin
The ancient Athenian polis is the prototype of democracy. Athens found the essence of democracy in the rule of the people, and had direct democracy and lottery systems as institutional devices to realize it. This Athenian democracy is called a prototype democracy. prototype democracy is only possible in small political communities. On the other hand, most democratic countries today adopt representative democracy. Representative democracy regards the essence of democracy not as the rule of the people but as the election by people. This change in meaning about the essence of democracy was made by medieval Scholar scholars such as Thomas Aquinas. Representative democracy has enabled democracy at a large national level. However, there is a problem that the rule of the people is transformed into the rule of the elite. Even if representative democracy is inevitable at a large national level, prototype democracy may be possible at a small unit such as eup, myeon, and dong. The institutionalization of residents autonomy is one of the ways. Before that, we look at the case of Athens, where Prototype democracy blossomed brilliantly in the most complete form in history. Athens’ democracy has never developed in a short period of time. Athens was an early aristocratic society. However, from around the 7th century B.C., commoners began a long march toward democracy against the aristocracy. After Solon’s democratic reform and Claystenes’ democratic establishment, Pericles finally completed democracy around the 5th century B.C. The political systems of Athens include ekklesia, boule, heliastai, and the administrator, which are quite elaborately institutionalized. Athens’ political system was also a product of long-standing accumulated changes and reforms. Korea’s residents autonomy has neither identity nor substance. However, the selection of members of the residents’ association by lottery and the general meeting of residents, which are being carried out in the pilot project of the residents‘’ association, contain seeds of new possibilities. This is because the selection of members of the residents’ association by lottery, which is a lottery system, corresponds to the selection of members of boule, and the general meeting of residents, which is a direct democracy, corresponds to ekklesia. Therefore, it is necessary to establish the identity of residents autonomy by using prototype democracy as the ideological basis of residents autonomy, and to develop the residents’ association into a practical residents autonomy organization in Eup, Myeon, and Dong through institutionalization of residents autonomy. In that case, Korea can move toward a true democratic republic where the election by people and the rule of the people are realized at the same time, with representative democracy at the national and local governments levels and prototype democracy at the eup, myeon, and dong levels.
{"title":"Athenian Polis and Residents Autonomy","authors":"Yong-In Shin","doi":"10.22397/wlri.2023.39.1.87","DOIUrl":"https://doi.org/10.22397/wlri.2023.39.1.87","url":null,"abstract":"The ancient Athenian polis is the prototype of democracy. Athens found the essence of democracy in the rule of the people, and had direct democracy and lottery systems as institutional devices to realize it. This Athenian democracy is called a prototype democracy. prototype democracy is only possible in small political communities. On the other hand, most democratic countries today adopt representative democracy. Representative democracy regards the essence of democracy not as the rule of the people but as the election by people. This change in meaning about the essence of democracy was made by medieval Scholar scholars such as Thomas Aquinas. Representative democracy has enabled democracy at a large national level. However, there is a problem that the rule of the people is transformed into the rule of the elite. Even if representative democracy is inevitable at a large national level, prototype democracy may be possible at a small unit such as eup, myeon, and dong. The institutionalization of residents autonomy is one of the ways. Before that, we look at the case of Athens, where Prototype democracy blossomed brilliantly in the most complete form in history. Athens’ democracy has never developed in a short period of time. Athens was an early aristocratic society. However, from around the 7th century B.C., commoners began a long march toward democracy against the aristocracy. After Solon’s democratic reform and Claystenes’ democratic establishment, Pericles finally completed democracy around the 5th century B.C. The political systems of Athens include ekklesia, boule, heliastai, and the administrator, which are quite elaborately institutionalized. Athens’ political system was also a product of long-standing accumulated changes and reforms. Korea’s residents autonomy has neither identity nor substance. However, the selection of members of the residents’ association by lottery and the general meeting of residents, which are being carried out in the pilot project of the residents‘’ association, contain seeds of new possibilities. This is because the selection of members of the residents’ association by lottery, which is a lottery system, corresponds to the selection of members of boule, and the general meeting of residents, which is a direct democracy, corresponds to ekklesia. Therefore, it is necessary to establish the identity of residents autonomy by using prototype democracy as the ideological basis of residents autonomy, and to develop the residents’ association into a practical residents autonomy organization in Eup, Myeon, and Dong through institutionalization of residents autonomy. In that case, Korea can move toward a true democratic republic where the election by people and the rule of the people are realized at the same time, with representative democracy at the national and local governments levels and prototype democracy at the eup, myeon, and dong levels.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"73 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125886789","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-31DOI: 10.22397/wlri.2022.38.4.191
Tai shun Yin, Lin Xu
중국 민법전 제1183조는 “자연인의 인신권익을 침해하여 심각한 정신적 손해를 조성한 경우 피침권자는 정신적 손해배상을 청구할 권리가 있다. 고의 또는 중대한 과실로 자연인의 인신적 의의가 있는 특정물을 침해하여 심각한 정신적 손해를 조성한 경우 피침권자는 정신적 손해배상을 청구할 권리가 있다”고 규정하고 있다. “인신적 의미가 있는 특정물”은 무엇을 의미하며 반려동물이 과연 그 인신적 의의가 있는 특정물의 범위에 귀속할 될수 있는지? 나아가 반려인은 타인의 반려동물 침해로 인한 정신신적손해배상를 청구할수 있는지? 인격화된 반려동물은 일정한 인격적 이익을 가지고 있어 반려인의 감정적 의탁의 대상이 되며 인격화된 반려동물을 침해하는 것은 본질적으로 재산적 이익과 인격적 이익의 두 가지 이질적인 이익을 침해하는 것이라고 볼수 있다. 정신적손해배상의 본질과 기능적 관점에서 인격화된 반려동물에 대한 침해행위는 반려인의 정신적, 정서적 이익이 훼손될 수 있음은 물론 인격물이론에 입각하여 민법전 제1183조 제2항의 규정은 반려동물 침해에 대한 정신적 손해배상의 법적 근거가 될수 있으며 정신적손해 배상청구의 적용에 타당성이 있다고 본다.
{"title":"On Compensation for Mental Damages of Pet Infringement-Interpretation and Application of Article 1183, Paragraph 2,of the Civil Code of the PRC","authors":"Tai shun Yin, Lin Xu","doi":"10.22397/wlri.2022.38.4.191","DOIUrl":"https://doi.org/10.22397/wlri.2022.38.4.191","url":null,"abstract":"중국 민법전 제1183조는 “자연인의 인신권익을 침해하여 심각한 정신적 손해를 조성한 경우 피침권자는 정신적 손해배상을 청구할 권리가 있다. 고의 또는 중대한 과실로 자연인의 인신적 의의가 있는 특정물을 침해하여 심각한 정신적 손해를 조성한 경우 피침권자는 정신적 손해배상을 청구할 권리가 있다”고 규정하고 있다. “인신적 의미가 있는 특정물”은 무엇을 의미하며 반려동물이 과연 그 인신적 의의가 있는 특정물의 범위에 귀속할 될수 있는지? 나아가 반려인은 타인의 반려동물 침해로 인한 정신신적손해배상를 청구할수 있는지? 인격화된 반려동물은 일정한 인격적 이익을 가지고 있어 반려인의 감정적 의탁의 대상이 되며 인격화된 반려동물을 침해하는 것은 본질적으로 재산적 이익과 인격적 이익의 두 가지 이질적인 이익을 침해하는 것이라고 볼수 있다. 정신적손해배상의 본질과 기능적 관점에서 인격화된 반려동물에 대한 침해행위는 반려인의 정신적, 정서적 이익이 훼손될 수 있음은 물론 인격물이론에 입각하여 민법전 제1183조 제2항의 규정은 반려동물 침해에 대한 정신적 손해배상의 법적 근거가 될수 있으며 정신적손해 배상청구의 적용에 타당성이 있다고 본다.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128129926","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-31DOI: 10.22397/bml.2022.28.259
Peng Zhao
According to current Chinese law, insurance companies cannot use genetic information for medical, disease, disability, care and medical accident insurance. Nevertheless, this approach has not effectively solved the problem of “genetic discrimination” in China. Genetic information plays a vital role in insurance. The theory that genetic information can be used in insurance is based on risk classification and price equilibrium principle. Adverse selection can be avoided by dividing genetic information into different risk classes. This is an inevitable requirement of the insurer's right to know. For the consideration of social and public interests, commercial insurance should undertake a reasonable social relief function, but it is necessary to clarify the limitations of the social relief function of commercial insurance, and commercial insurance and social insurance cannot be equated. In terms of the characteristics of genetic information itself, there is no substantial difference between it and general medical information. Insurance covers uncertain risks, and with the progress of technology, the accuracy of genetic testing has also been improved. Therefore, theoretically speaking, it is not necessary to completely prohibit insurers from using genetic information in the insurance field. Therefore, in the future, China's legislation on genetic discrimination should be changed from completely prohibiting the use of genetic information by insurers to conditionally restricting the use of genetic information by insurers. First of all, the way to obtain genetic information by the insurer should be clarified, and the insurer should be prohibited from forcing the insured to carry out predictive genetic testing. The insurance applicant only must inform the specific genetic testing results. Secondly, it is necessary to set conditions for the insurer to use genetic information. The insurer can only use genetic information in personal insurance that meets a certain amount of money, and the use of genetic information must meet legal procedures and obtain the consent of the insured. In addition, it is also necessary to strengthen the regulation of the gene testing industry, formulate strict market access rules, and establish a gene consultant system to make up for the inferior position of the insured in the profession. Finally, improve the rescue of the insured, let professionals participate in the settlement of disputes, and increase the severity of punishment for the illegal use of genetic information by insurance companies.
{"title":"The Utilization and Limitation of Genetic Information in Insurance: Improvement Plan of China’s“Genetic Non-discrimination Act”","authors":"Peng Zhao","doi":"10.22397/bml.2022.28.259","DOIUrl":"https://doi.org/10.22397/bml.2022.28.259","url":null,"abstract":"According to current Chinese law, insurance companies cannot use genetic information for medical, disease, disability, care and medical accident insurance. Nevertheless, this approach has not effectively solved the problem of “genetic discrimination” in China. Genetic information plays a vital role in insurance. The theory that genetic information can be used in insurance is based on risk classification and price equilibrium principle. Adverse selection can be avoided by dividing genetic information into different risk classes. This is an inevitable requirement of the insurer's right to know. For the consideration of social and public interests, commercial insurance should undertake a reasonable social relief function, but it is necessary to clarify the limitations of the social relief function of commercial insurance, and commercial insurance and social insurance cannot be equated. In terms of the characteristics of genetic information itself, there is no substantial difference between it and general medical information. Insurance covers uncertain risks, and with the progress of technology, the accuracy of genetic testing has also been improved. Therefore, theoretically speaking, it is not necessary to completely prohibit insurers from using genetic information in the insurance field. Therefore, in the future, China's legislation on genetic discrimination should be changed from completely prohibiting the use of genetic information by insurers to conditionally restricting the use of genetic information by insurers. First of all, the way to obtain genetic information by the insurer should be clarified, and the insurer should be prohibited from forcing the insured to carry out predictive genetic testing. The insurance applicant only must inform the specific genetic testing results. Secondly, it is necessary to set conditions for the insurer to use genetic information. The insurer can only use genetic information in personal insurance that meets a certain amount of money, and the use of genetic information must meet legal procedures and obtain the consent of the insured. In addition, it is also necessary to strengthen the regulation of the gene testing industry, formulate strict market access rules, and establish a gene consultant system to make up for the inferior position of the insured in the profession. Finally, improve the rescue of the insured, let professionals participate in the settlement of disputes, and increase the severity of punishment for the illegal use of genetic information by insurance companies.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"79 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130029852","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-31DOI: 10.22397/wlri.2022.38.4.51
Hyekyung Kim
The Supreme Court is always consistent in that the protective legal interest of the crime of intrusion on housing is “de facto peace” However, when there are several people living in the same space, only the establishment of the crime has been analyzed, and the number of crimes has not been discussed. If there are a few of people who belong to the exclusive legal interest, it is impossible to share or transfer the legal interest as well as to succeed due to the possibility of transfer of the legal interest. Therefore, if there are several people living in the shared house, the protection legal interests must be recognized as overlapping as the number of residents. At this time, it should be understood that the infringement of protective legal interests due to a single act of invasion of housing exists as much as the number of residents. In this case, if conceptual concurrence is recognized, there is a concern of excessive evaluation of illegality, so here, would like to admit inclusive crime. If the actor recognizes that some of the inaliennable legal interests agree and some explicitly reject them, the actor violates the legal interests of the deniers because there is an intention to invade the rejected people. Therefore, the crime is not established because the constituent requirements are understood and the applicability of the constituent requirements is carved, but the crime of some of the inclusive crime does not affect the establishment of the inclusive crime for the rejected. In other words, the crime of housebreaking is established. However, if an actor who does not know the internal circumstances between people sharing the space enters with some consent, actor does not recognize the disagreement of others, so the intention cannot be established for the legal interest, and as a result, there is no intention of housing invasion for those who disagree. In addition, due to the nature of the intrusion act, the presence of the actor's intention depends on the ‘recognition’ of consent by the resident unless it is abnormal access, and that is the situation at the site facing the actor. Through such arguments, here, if there are several people with the legal interest of de facto peace in the shared space, the establishment of the crime of house intrusion was resolved as inclusive crime. Although there are some deficiencies in the logical outcome process, this is also a task to be solved in the future in the process of argumentation.
{"title":"Disposition and Imputation of Inalienable Legal Interest","authors":"Hyekyung Kim","doi":"10.22397/wlri.2022.38.4.51","DOIUrl":"https://doi.org/10.22397/wlri.2022.38.4.51","url":null,"abstract":"The Supreme Court is always consistent in that the protective legal interest of the crime of intrusion on housing is “de facto peace” However, when there are several people living in the same space, only the establishment of the crime has been analyzed, and the number of crimes has not been discussed. If there are a few of people who belong to the exclusive legal interest, it is impossible to share or transfer the legal interest as well as to succeed due to the possibility of transfer of the legal interest. Therefore, if there are several people living in the shared house, the protection legal interests must be recognized as overlapping as the number of residents. At this time, it should be understood that the infringement of protective legal interests due to a single act of invasion of housing exists as much as the number of residents. In this case, if conceptual concurrence is recognized, there is a concern of excessive evaluation of illegality, so here, would like to admit inclusive crime. \u0000If the actor recognizes that some of the inaliennable legal interests agree and some explicitly reject them, the actor violates the legal interests of the deniers because there is an intention to invade the rejected people. Therefore, the crime is not established because the constituent requirements are understood and the applicability of the constituent requirements is carved, but the crime of some of the inclusive crime does not affect the establishment of the inclusive crime for the rejected. In other words, the crime of housebreaking is established. \u0000However, if an actor who does not know the internal circumstances between people sharing the space enters with some consent, actor does not recognize the disagreement of others, so the intention cannot be established for the legal interest, and as a result, there is no intention of housing invasion for those who disagree. In addition, due to the nature of the intrusion act, the presence of the actor's intention depends on the ‘recognition’ of consent by the resident unless it is abnormal access, and that is the situation at the site facing the actor. \u0000Through such arguments, here, if there are several people with the legal interest of de facto peace in the shared space, the establishment of the crime of house intrusion was resolved as inclusive crime. Although there are some deficiencies in the logical outcome process, this is also a task to be solved in the future in the process of argumentation.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133501423","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-31DOI: 10.22397/wlri.2022.38.4.169
H. Yoon
Big data is the generation and analysis of valuable data in large quantities with data, and has recently been developed through convergence with artificial intelligence and the Internet of Things. Big data technology, in which a vast amount of data is collected and who can more elaborately analyze and utilize the collected data, has become an era that determines the competitiveness of a company or country. The economic value of big data is increasing day by day, and companies are generating profits by using big data not only in domestic transactions but also in international transactions. I wanted to study how to solve the problem of taxation on profits generated by big data. As for the taxation of big data, it is important to understand the legal nature of big data, and it is connected to data, which is the root of big data. Therefore, we tried to understand the legal nature of big data through the legal nature of data. Currently, there is no legal concept for big data, but the legal concept of data has been established with the recent enactment of the Data Industry Act. The Data Industry Act stipulates activities related to production, distribution, transaction, and utilization of data and the data industry that provides these services in order to create economic added value. From the perspective of the Data Industry Act, big data can be included in the concept of data under the Data Industry Act or understood as the same concept. The Data Industry Act recognizes that data has economic value, that is, data itself as an asset, but the tax law or corporate accounting standards do not clearly determine which asset is included in data. This can lead to problems with taxation of big data. Therefore, since data or big data is stated to have property under the Data Industry Act, it would be reasonable to regard data as intangible assets and goods by recognizing the nature set forth in the relevant laws in the tax law, and the tax base should be set according to that concept. On the other hand, as the 4th industry develops, big data is expected to increase domestic and international transactions. In particular, since the taxation standards for big data are not clearly defined for each country, international transactions of big data will appear as a problem of tax jurisdiction due to deficiencies in tax laws in each country. In the current situation, tax law interprets data from the perspective of intangible assets, and international transactions of big data are also regarded as international transactions of intangible assets, so it seems that there is no choice but to be taxed.
{"title":"Big Data Taxation Issues","authors":"H. Yoon","doi":"10.22397/wlri.2022.38.4.169","DOIUrl":"https://doi.org/10.22397/wlri.2022.38.4.169","url":null,"abstract":"Big data is the generation and analysis of valuable data in large quantities with data, and has recently been developed through convergence with artificial intelligence and the Internet of Things. Big data technology, in which a vast amount of data is collected and who can more elaborately analyze and utilize the collected data, has become an era that determines the competitiveness of a company or country. The economic value of big data is increasing day by day, and companies are generating profits by using big data not only in domestic transactions but also in international transactions. I wanted to study how to solve the problem of taxation on profits generated by big data. \u0000As for the taxation of big data, it is important to understand the legal nature of big data, and it is connected to data, which is the root of big data. Therefore, we tried to understand the legal nature of big data through the legal nature of data. Currently, there is no legal concept for big data, but the legal concept of data has been established with the recent enactment of the Data Industry Act. The Data Industry Act stipulates activities related to production, distribution, transaction, and utilization of data and the data industry that provides these services in order to create economic added value. From the perspective of the Data Industry Act, big data can be included in the concept of data under the Data Industry Act or understood as the same concept. \u0000The Data Industry Act recognizes that data has economic value, that is, data itself as an asset, but the tax law or corporate accounting standards do not clearly determine which asset is included in data. This can lead to problems with taxation of big data. Therefore, since data or big data is stated to have property under the Data Industry Act, it would be reasonable to regard data as intangible assets and goods by recognizing the nature set forth in the relevant laws in the tax law, and the tax base should be set according to that concept. \u0000On the other hand, as the 4th industry develops, big data is expected to increase domestic and international transactions. In particular, since the taxation standards for big data are not clearly defined for each country, international transactions of big data will appear as a problem of tax jurisdiction due to deficiencies in tax laws in each country. In the current situation, tax law interprets data from the perspective of intangible assets, and international transactions of big data are also regarded as international transactions of intangible assets, so it seems that there is no choice but to be taxed.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115027488","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-31DOI: 10.22397/bml.2022.28.177
Jung-jin Kim
A recent development of information technology (IT) has brought many changes to hospital treatment and medical administrative services. Healthcare using clinical data accumulated by electronic medical records is changing the industry paradigm. In addition, with the spread of mobile internet and wearable health devices, it has been possible to build an infrastructure for health data that can converge ‘health’ and ‘medical.’ It provides convenience and speed not experienced in traditional healthcare through medical institutions such as hospitals. On the other hand, the collection and utilization of medical big data in medicine and electronic medical records have brought about many changes in privacy projection. The privacy of patients is used in hospitals and other institutions in a way called ‘information privacy.’ In other words, privacy is used as a piece of ‘information’ and is used for disease treatment, medical research, and insurance product development. As medical big data is collected from various devices and reprocessed in various ways, however, the risk of personal privacy rights being infringed has increased. Although these risks are inherent, a legal basis is not perfectly established yet. Therefore, this study reviews the current status of medical big data utilization in China and analyzes various legal issues related to the privacy information of medical big data. Besides, the study examines the civil legal status and protection measureless of privacy inflammation on medical big data and then proposes legislative improvement measures.
{"title":"A Study on Privacy Information Protection of Medical Big Data in China","authors":"Jung-jin Kim","doi":"10.22397/bml.2022.28.177","DOIUrl":"https://doi.org/10.22397/bml.2022.28.177","url":null,"abstract":"A recent development of information technology (IT) has brought many changes to hospital treatment and medical administrative services. Healthcare using clinical data accumulated by electronic medical records is changing the industry paradigm. In addition, with the spread of mobile internet and wearable health devices, it has been possible to build an infrastructure for health data that can converge ‘health’ and ‘medical.’ It provides convenience and speed not experienced in traditional healthcare through medical institutions such as hospitals. \u0000On the other hand, the collection and utilization of medical big data in medicine and electronic medical records have brought about many changes in privacy projection. The privacy of patients is used in hospitals and other institutions in a way called ‘information privacy.’ In other words, privacy is used as a piece of ‘information’ and is used for disease treatment, medical research, and insurance product development. As medical big data is collected from various devices and reprocessed in various ways, however, the risk of personal privacy rights being infringed has increased. Although these risks are inherent, a legal basis is not perfectly established yet. \u0000Therefore, this study reviews the current status of medical big data utilization in China and analyzes various legal issues related to the privacy information of medical big data. Besides, the study examines the civil legal status and protection measureless of privacy inflammation on medical big data and then proposes legislative improvement measures.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133752699","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-31DOI: 10.22397/bml.2022.28.229
Chang-kyu Lee, Joo-Hee Kim, Su-Dong Kim
The Act on Organ Transplantation makes it possible to judge brain death with the consent of the bereaved family, even if the donor does not express his/her intention to donate in writing before death, as long as the donor does not express his/her intention to the contrary. Legislation on long-term donations is a new area that was created relatively recently and is still developing with the development of medical and life science technology. It can be said that it is meaningful to examine the current state of overseas legal systems and the content of legislation in order to identify and improve the problems of laws related to transplantation of organs and other organs. In particular, Germany had an organ transplant scandal (Organspende-Skandal) based on changes in organ transplantation, followed by institutional changes. On this basis, we examined the long-term harvest requirements and consent of the German organ transplantation law and derived some improvements in our organ transplantation law. First, as with the consent requirements for determining brain death, there is a problem as to whether or not the bereaved family can refuse the donation despite the donor's consent. If the bereaved family has inherent rights to the long-term donation after the donor's death, the bereaved family will naturally have the right to veto the long-term donation. In the Korean method of determining the scope of relatives, which does not allow such relatives to have the right of veto, it would be a problem to neglect the person's right to self-determination. The second is the scope of long-term donors and recipients. Under the Organ Transplantation Law, family members or bereaved families are the subjects of consent or refusal of long-term donation of organs from donors. German long-term transplant law stipulates that close relatives and decision-making authority must only be given to the donor if they have had personal contact within the last two years prior to death. there is That is, close relatives are primarily spouses or registered Lebenspartners, children, parents, siblings and grandparents. In addition, if an arrangement is made among close relatives and there are multiple close relatives in the same position, it is sufficient if one of them satisfies the above circumstances.
{"title":"A Study of improvement methods for determining brain death and organ transplantation","authors":"Chang-kyu Lee, Joo-Hee Kim, Su-Dong Kim","doi":"10.22397/bml.2022.28.229","DOIUrl":"https://doi.org/10.22397/bml.2022.28.229","url":null,"abstract":"The Act on Organ Transplantation makes it possible to judge brain death with the consent of the bereaved family, even if the donor does not express his/her intention to donate in writing before death, as long as the donor does not express his/her intention to the contrary. Legislation on long-term donations is a new area that was created relatively recently and is still developing with the development of medical and life science technology. It can be said that it is meaningful to examine the current state of overseas legal systems and the content of legislation in order to identify and improve the problems of laws related to transplantation of organs and other organs. In particular, Germany had an organ transplant scandal (Organspende-Skandal) based on changes in organ transplantation, followed by institutional changes. On this basis, we examined the long-term harvest requirements and consent of the German organ transplantation law and derived some improvements in our organ transplantation law. \u0000First, as with the consent requirements for determining brain death, there is a problem as to whether or not the bereaved family can refuse the donation despite the donor's consent. If the bereaved family has inherent rights to the long-term donation after the donor's death, the bereaved family will naturally have the right to veto the long-term donation. In the Korean method of determining the scope of relatives, which does not allow such relatives to have the right of veto, it would be a problem to neglect the person's right to self-determination. \u0000The second is the scope of long-term donors and recipients. Under the Organ Transplantation Law, family members or bereaved families are the subjects of consent or refusal of long-term donation of organs from donors. German long-term transplant law stipulates that close relatives and decision-making authority must only be given to the donor if they have had personal contact within the last two years prior to death. there is That is, close relatives are primarily spouses or registered Lebenspartners, children, parents, siblings and grandparents. In addition, if an arrangement is made among close relatives and there are multiple close relatives in the same position, it is sufficient if one of them satisfies the above circumstances.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131822540","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-31DOI: 10.22397/wlri.2022.38.4.27
Sungkyu Cho
According to the REGISTERED SECURITY GUARD ACT, the registered security guard are required to perform the duties prescribed in the Police Officer's Job Execution Act, and in that respect, the character of a public administration performer is remarkable in terms of duties, while the working relationship of the registered security guard is basically similar to the employment relationship of private law. For that reason, the legal issue surrounding the registered security guard brings legal ambiguity in various aspects. This problem situation is especially remarkable in the case of registered security guard working in the public sector, in that the employer is the administrative entity of the state or local government, as well as the public administrative nature of the work. On the other hand, in the case of petition police working outside the public sector, the legal problem is more pronounced in that the REGISTERED SECURITY GUARD ACT is generally applied due to its status as a registered security guard, even though the characteristics of private law are very strong in the nature of labor relations. In particular, the registered security guard in the private sector are the cause of legal ambiguity compared to general labor relations of private law in that they are substantially similar to the security work under the Security Services Industry Act, which is the subject of the permission system. In Korean legislation that presupposes the distinction between public law and private law, the distinction between public law and private law needs to be distinguished in various aspects, such as differences in legal relations and applicable laws, so it is necessary to secure legal systematic consistency corresponding to this in the registered security guard law system. The REGISTERED SECURITY GUARD ACT is intended to be a general and complete discipline for the registered security guard system, but the actual regulations are mostly fragmentary and individual regulations for solving phenomenal problems, not consistent systematic legal principles, even so, public law and judicial characteristics are mixed, so this situation is the cause of ambiguity in the interpretation and application of the law. For this reason, it is necessary to improve the petition police law, regarding the direction of improvement, considering Korea's legal system based on the distinction between public and private law, it is logical and consistent to legal system to classify the legal relationship of a person who is performing public administrative work through employment relations in the public sector into public law relations. Therefore, it is a reasonable direction to improve the legislation to separate and regulate the registered security guard working in the public sector which inevitably have strong public legal characteristics and the registered security guard working in the private sector with significantly less public legal characteristics.
{"title":"A Study on the Consistency of Legal System of ‘Registered Security Guard’ Law","authors":"Sungkyu Cho","doi":"10.22397/wlri.2022.38.4.27","DOIUrl":"https://doi.org/10.22397/wlri.2022.38.4.27","url":null,"abstract":"According to the REGISTERED SECURITY GUARD ACT, the registered security guard are required to perform the duties prescribed in the Police Officer's Job Execution Act, and in that respect, the character of a public administration performer is remarkable in terms of duties, while the working relationship of the registered security guard is basically similar to the employment relationship of private law. For that reason, the legal issue surrounding the registered security guard brings legal ambiguity in various aspects. \u0000This problem situation is especially remarkable in the case of registered security guard working in the public sector, in that the employer is the administrative entity of the state or local government, as well as the public administrative nature of the work. On the other hand, in the case of petition police working outside the public sector, the legal problem is more pronounced in that the REGISTERED SECURITY GUARD ACT is generally applied due to its status as a registered security guard, even though the characteristics of private law are very strong in the nature of labor relations. In particular, the registered security guard in the private sector are the cause of legal ambiguity compared to general labor relations of private law in that they are substantially similar to the security work under the Security Services Industry Act, which is the subject of the permission system. \u0000In Korean legislation that presupposes the distinction between public law and private law, the distinction between public law and private law needs to be distinguished in various aspects, such as differences in legal relations and applicable laws, so it is necessary to secure legal systematic consistency corresponding to this in the registered security guard law system. \u0000The REGISTERED SECURITY GUARD ACT is intended to be a general and complete discipline for the registered security guard system, but the actual regulations are mostly fragmentary and individual regulations for solving phenomenal problems, not consistent systematic legal principles, even so, public law and judicial characteristics are mixed, so this situation is the cause of ambiguity in the interpretation and application of the law. \u0000For this reason, it is necessary to improve the petition police law, regarding the direction of improvement, considering Korea's legal system based on the distinction between public and private law, it is logical and consistent to legal system to classify the legal relationship of a person who is performing public administrative work through employment relations in the public sector into public law relations. Therefore, it is a reasonable direction to improve the legislation to separate and regulate the registered security guard working in the public sector which inevitably have strong public legal characteristics and the registered security guard working in the private sector with significantly less public legal characteristics.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132172196","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
As more and more medical service is provided by hospital, a new basis of medical liability, hospital’s organizational duty, has arisen. Hospital typically differentiates various parts of medical service and allocates them to different departments. The division of labor enhances the efficiency and professionality of the service and enables a service which could not have been provided otherwise. It poses, however, new risk that nobody in the organization has a comprehensive understanding of and control over the process. Patients might be unattended by anybody at some point of the process. This risk should be coped with or compensated by the new duty to organize the structure and cooperation in the hospital adequately. In many jurisdictions including Germany, France, the United States and South Korea, this new duty has been acknowledged by legislation and more importantly by jurisprudence. All those show similar landscapes: Hospital’s organizational duty has a function to enlarge hospital’s (civil) liability and/or concentrate medical (civil) liability to the hospital so as to provide the victim, the patient, a better way to be compensated and to preserve the rapport between the attending physician and the patient. It also has a function to lessen the burden of proof from the patient’s side, especially in the context of hospital contagion. It poses a new problem of the influence of the existence and weight of hospital’s own liability for the defective organization upon the individual physician’s medical liability. Last, but not least, there is the problem of the implication of the existence of organizational duty upon the medical criminal liability. This issue has not been addressed thus far perhaps because there are few cases in criminal justice practice. It’s theoretical importance can hardly be exaggerated, though, as it shows dramatically the structural transposition of modern medical service provision and its possible influence on the overall regime of modern medical liability. South Korea has already a few cases that show this issue can arise anytime in practice.
{"title":"Hospital’s Organizational Duty: Civil and Criminal Liability","authors":"Dong-Jin Lee","doi":"10.22397/bml.2022.28.31","DOIUrl":"https://doi.org/10.22397/bml.2022.28.31","url":null,"abstract":"As more and more medical service is provided by hospital, a new basis of medical liability, hospital’s organizational duty, has arisen. Hospital typically differentiates various parts of medical service and allocates them to different departments. The division of labor enhances the efficiency and professionality of the service and enables a service which could not have been provided otherwise. It poses, however, new risk that nobody in the organization has a comprehensive understanding of and control over the process. Patients might be unattended by anybody at some point of the process. This risk should be coped with or compensated by the new duty to organize the structure and cooperation in the hospital adequately. In many jurisdictions including Germany, France, the United States and South Korea, this new duty has been acknowledged by legislation and more importantly by jurisprudence. All those show similar landscapes: Hospital’s organizational duty has a function to enlarge hospital’s (civil) liability and/or concentrate medical (civil) liability to the hospital so as to provide the victim, the patient, a better way to be compensated and to preserve the rapport between the attending physician and the patient. It also has a function to lessen the burden of proof from the patient’s side, especially in the context of hospital contagion. It poses a new problem of the influence of the existence and weight of hospital’s own liability for the defective organization upon the individual physician’s medical liability. Last, but not least, there is the problem of the implication of the existence of organizational duty upon the medical criminal liability. This issue has not been addressed thus far perhaps because there are few cases in criminal justice practice. It’s theoretical importance can hardly be exaggerated, though, as it shows dramatically the structural transposition of modern medical service provision and its possible influence on the overall regime of modern medical liability. South Korea has already a few cases that show this issue can arise anytime in practice.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114916778","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-31DOI: 10.22397/bml.2022.28.357
S. Jo, So-Young Lee
Consumers' food consumption structure changes from grain-centered to meat-centered depending on economic factors and socio-cultural factors. As an alternative to the rapidly growing demand for meat, interest in alternative meat is rapidly increasing, and in particular, interest in cultured meat that is similar to meat in terms of sensuality is emerging. The cultured meat industry is expanding centered on research and development, and recently, commercialization and commercialization of cultured meat have begun in domestic and foreign companies. However, in the commercialization of cultured meat, there is little discussion about the scope and limits of legal acceptability, such as the uncertainty of scientific safety raised by the livestock industry and the ethical responsibility of consumers. Studies related to cultured meat are mainly limited to technical aspects, and studies examining the legal field are lacking. Therefore, in this study, we tried to find out how far cultured meat can be accommodated in the current legal system, that is, the scope, limitations and challenges of legal capacity. Cultured meat is not a product through livestock breeding from the viewpoint of the production system, so there are limitations in receiving the application of the 「Livestock Industry Act」, 「Food Sanitation Act」, and 「Food Code」. cultured meat has no legal basis to apply standards and specifications in the 「Food Sanitation Act」 and 「Livestock Products Sanitary Control Act」 even in the safety system. Even in the labeling system, it cannot be labeled as “meat” because it is not a livestock product stipulated by the 「Livestock Industry Act」. Cultured meat does not have a clear legal basis not only in Korea but also in major developed countries. This is due to ethical and scientific limitations, as well as being in conflict with the livestock industry and livestock products based on existing livestock breeding. Priority should be given to preparing legal regulations that can secure the reliability of the livestock industry, agricultural, and consumers. It is judged that it will be after that that cultured meat can be recognized as a substitute food to the extent that the scope of livestock industry and agriculture is not reduced.
{"title":"A Study on the Limitations and Challenges of Legal Acceptance of Cultured Meat","authors":"S. Jo, So-Young Lee","doi":"10.22397/bml.2022.28.357","DOIUrl":"https://doi.org/10.22397/bml.2022.28.357","url":null,"abstract":"Consumers' food consumption structure changes from grain-centered to meat-centered depending on economic factors and socio-cultural factors. As an alternative to the rapidly growing demand for meat, interest in alternative meat is rapidly increasing, and in particular, interest in cultured meat that is similar to meat in terms of sensuality is emerging. \u0000The cultured meat industry is expanding centered on research and development, and recently, commercialization and commercialization of cultured meat have begun in domestic and foreign companies. However, in the commercialization of cultured meat, there is little discussion about the scope and limits of legal acceptability, such as the uncertainty of scientific safety raised by the livestock industry and the ethical responsibility of consumers. Studies related to cultured meat are mainly limited to technical aspects, and studies examining the legal field are lacking. Therefore, in this study, we tried to find out how far cultured meat can be accommodated in the current legal system, that is, the scope, limitations and challenges of legal capacity. \u0000Cultured meat is not a product through livestock breeding from the viewpoint of the production system, so there are limitations in receiving the application of the 「Livestock Industry Act」, 「Food Sanitation Act」, and 「Food Code」. cultured meat has no legal basis to apply standards and specifications in the 「Food Sanitation Act」 and 「Livestock Products Sanitary Control Act」 even in the safety system. Even in the labeling system, it cannot be labeled as “meat” because it is not a livestock product stipulated by the 「Livestock Industry Act」. Cultured meat does not have a clear legal basis not only in Korea but also in major developed countries. This is due to ethical and scientific limitations, as well as being in conflict with the livestock industry and livestock products based on existing livestock breeding. Priority should be given to preparing legal regulations that can secure the reliability of the livestock industry, agricultural, and consumers. It is judged that it will be after that that cultured meat can be recognized as a substitute food to the extent that the scope of livestock industry and agriculture is not reduced.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115627091","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：