In this paper, the legal system is discussed in which a patient's family decides to withhold or discontinue life-sustaining treatment on behalf of the patient. After many decades of discussion in Korea, the Korean Act on Hospice and Palliative Care and Decisions on Life-sustaining Treatment for Patients at the End of Life was enacted in order that patients might decide whether to receive life-sustaining treatment or withhold or discontinue it. However, the Act has many errors or flaws related to the Korean Civil Code. This Act permits the decision by the family decision to withhold or discontinue life-sustaining treatment for the patient that lead to the earlier arrival of his or her death. This permission does not suit the purpose of introducing a system that allows the life-sustaining treatment to be withheld or discontinued by the patient’s intent. Examples of issues that reveal these points are as follows. First of all, the error can be pointed out that the decision to withhold or discontinue life-sustaining treatment was recognized as an expression of intention or legal act, not a quasi-legal act. Accordingly, minors are improperly specialized in the decision to withhold or discontinue life-sustaining treatment. In addition, many problems are identified in relation to the legal representative who has the parental authority to decide on withholding or discontinuing life-sustaining treatment for minors. The above mentioned Act has flaws in legislation in the case of sole parental authority, the situation of conflict of interests, the case of acting parental authority on behalf of underage children over their children, the case of deprivation of parental authority, and the case of a parent with parental authority alone without the status of a legal representative. There is also a problem in the composition of provision related with each proxy decision for minor patients and general patients. The ambiguity of the reasons for restricting the right to decide makes it difficult to judge who the members of a group of decision makers. The fact that various requirements for exercising the right to decide must be supplemented by interpretation causes difficulty in implementing the decision to withhold or discontinue life-sustaining treatment in the medical field. Furthermore, the flaw in legislation that makes it impossible to withhold or discontinue life-sustaining treatment for patients without any family to decide shows the need to accept the theory of an abstract hypothetical intention to replace the present family decision system. Finally, the fundamental point to be mentioned is that we should remember that the design of the present system for the decision to withhold or discontinue life-sustaining treatment is to ensure that the patient's own conviction to choose the path of ‘natural death’ be properly respected.
{"title":"Decision by Family against Medical Care to Prolonging Patient’ Life","authors":"Cheon-Soo Kim","doi":"10.22397/bml.2022.28.5","DOIUrl":"https://doi.org/10.22397/bml.2022.28.5","url":null,"abstract":"In this paper, the legal system is discussed in which a patient's family decides to withhold or discontinue life-sustaining treatment on behalf of the patient. After many decades of discussion in Korea, the Korean Act on Hospice and Palliative Care and Decisions on Life-sustaining Treatment for Patients at the End of Life was enacted in order that patients might decide whether to receive life-sustaining treatment or withhold or discontinue it. However, the Act has many errors or flaws related to the Korean Civil Code. This Act permits the decision by the family decision to withhold or discontinue life-sustaining treatment for the patient that lead to the earlier arrival of his or her death. This permission does not suit the purpose of introducing a system that allows the life-sustaining treatment to be withheld or discontinued by the patient’s intent. Examples of issues that reveal these points are as follows. First of all, the error can be pointed out that the decision to withhold or discontinue life-sustaining treatment was recognized as an expression of intention or legal act, not a quasi-legal act. Accordingly, minors are improperly specialized in the decision to withhold or discontinue life-sustaining treatment. In addition, many problems are identified in relation to the legal representative who has the parental authority to decide on withholding or discontinuing life-sustaining treatment for minors. The above mentioned Act has flaws in legislation in the case of sole parental authority, the situation of conflict of interests, the case of acting parental authority on behalf of underage children over their children, the case of deprivation of parental authority, and the case of a parent with parental authority alone without the status of a legal representative. There is also a problem in the composition of provision related with each proxy decision for minor patients and general patients. The ambiguity of the reasons for restricting the right to decide makes it difficult to judge who the members of a group of decision makers. The fact that various requirements for exercising the right to decide must be supplemented by interpretation causes difficulty in implementing the decision to withhold or discontinue life-sustaining treatment in the medical field. Furthermore, the flaw in legislation that makes it impossible to withhold or discontinue life-sustaining treatment for patients without any family to decide shows the need to accept the theory of an abstract hypothetical intention to replace the present family decision system. Finally, the fundamental point to be mentioned is that we should remember that the design of the present system for the decision to withhold or discontinue life-sustaining treatment is to ensure that the patient's own conviction to choose the path of ‘natural death’ be properly respected.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"42 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":"132083989","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.2022.28.327
Joo-Hyoung Lee, Hong-Jun Jeon
As more and more people do not consume animal ingredients for various reasons such as environmental sustainability, animal welfare, and religious beliefs, “alternative foods” that can supplement nutrients that may be lacking for these people are drawing attention. The term “alternative food” means food manufactured and processed to have a similar taste and texture to existing food by replacing animal-based materials with other ingredients. The alternative food currently on sale only aims to replace existing food, and there are no safety problems because it uses raw materials that have been recognized for safety. These alternative foods have grown through publicity and advertising using meat labeling, such as meat, milk, or cooking names(tteokgalbi, bulgogi, etc.). However, controversy over the labeling of alternative foods has arisen around the world as the traditional livestock industry has claimed the use of meat labeling for alternative foods. In the United States, there are no federal-level alternative food labeling laws, so the state government allows, prohibits, or waits for meat labeling of alternative foods depending on the state's major industries. In states where the state law prohibits meat labeling of alternative foods, lawsuits are continuing between alternative food companies that oppose it. At the EU level, dairy labeling of alternative foods has been banned following the ruling of the EU Court of Justice, and discussions on whether alternative foods are allowed to be labeled with meat continue. The common issue of meat labeling in alternative foods is largely identified in two ways. The first is the question of whether it is reasonable to use meat labeling because alternative foods do not use meat in the traditional sense, so they are not included in the legal scope of meat, dairy products, and meat processed products. The second is whether the use of these markings on foods that do not contain any traditional meat or milk leads to misunderstanding and confusion among consumers. EU and US precedents take conflicting positions on each issue. In order to prevent large-scale disputes such as those that occurred in the United States and the EU, alternative food labeling standards that take into account the average perception of the general public in society should be prepared. In addition, even if standards that take into account the perception of the general public are prepared, measures should be sought to reduce the possibility of misunderstanding and confusion as much as possible.
{"title":"A Comparative Study on the Regulation of Alternative Food Labeling Advertising: Status and Regulation of Alternative Food in the US and the EU","authors":"Joo-Hyoung Lee, Hong-Jun Jeon","doi":"10.22397/bml.2022.28.327","DOIUrl":"https://doi.org/10.22397/bml.2022.28.327","url":null,"abstract":"As more and more people do not consume animal ingredients for various reasons such as environmental sustainability, animal welfare, and religious beliefs, “alternative foods” that can supplement nutrients that may be lacking for these people are drawing attention. The term “alternative food” means food manufactured and processed to have a similar taste and texture to existing food by replacing animal-based materials with other ingredients. The alternative food currently on sale only aims to replace existing food, and there are no safety problems because it uses raw materials that have been recognized for safety. \u0000These alternative foods have grown through publicity and advertising using meat labeling, such as meat, milk, or cooking names(tteokgalbi, bulgogi, etc.). However, controversy over the labeling of alternative foods has arisen around the world as the traditional livestock industry has claimed the use of meat labeling for alternative foods. \u0000In the United States, there are no federal-level alternative food labeling laws, so the state government allows, prohibits, or waits for meat labeling of alternative foods depending on the state's major industries. In states where the state law prohibits meat labeling of alternative foods, lawsuits are continuing between alternative food companies that oppose it. At the EU level, dairy labeling of alternative foods has been banned following the ruling of the EU Court of Justice, and discussions on whether alternative foods are allowed to be labeled with meat continue. \u0000The common issue of meat labeling in alternative foods is largely identified in two ways. The first is the question of whether it is reasonable to use meat labeling because alternative foods do not use meat in the traditional sense, so they are not included in the legal scope of meat, dairy products, and meat processed products. The second is whether the use of these markings on foods that do not contain any traditional meat or milk leads to misunderstanding and confusion among consumers. EU and US precedents take conflicting positions on each issue. \u0000In order to prevent large-scale disputes such as those that occurred in the United States and the EU, alternative food labeling standards that take into account the average perception of the general public in society should be prepared. In addition, even if standards that take into account the perception of the general public are prepared, measures should be sought to reduce the possibility of misunderstanding and confusion as much as possible.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"4 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":"131176891","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.2022.38.4.73
Kwang-Soub Song
There are broad deviations in the perspectives of stakeholders in the application and request for an arrest warrant, as well as other related processes, including the dismissal and issuance of the warrant. The deviations can be attributed to the imbalance of power between stakeholders, including the police’s dependence on the prosecution’s request for supplementary investigation for warrant application, return and request, internal conflict between the prosecution and the court due to the court’s power to dismiss or issue the arrest warrant requested by the prosecution and conflicting standards for arrest warrant applications. This is a consequence of the varying and ambiguous standards for applying, requesting and issuing a warrant. In Korea, the conflict between the prosecution and the court over the request for warrants and dismissals have been ongoing over a long time, resulting in the aggravation and intensity of the people’s distrust in the judicial system. As the grounds for arrest are abstract and ambiguous in the Criminal Procedure Law, it is unavoidable to depend on the judge’s arbitrary decision. In order to avoid this issue, appeals to the warrant judge’s decision should be allowed. However, precedents set by the Supreme Court and the position of appeal disapproval oppose such a proposal. The major cause for such issues is the fact that a warrant judge is a case-accepting judge. Thus, to have an appeal or quasi-appeal, the judge is required to become a ‘court’ of Article 402, which is not applied to these circumstances. In the case of warrant dismissal, there is a system called the reapplication for warrant. If the appeal is allowed, the suspects’ unstable state will continue for a long time, which can seriously violate the suspects’ freedom and human rights. However, in the interpretation of Clause 1 of Article 101 of the Constitution, and Clause 1 of Article 5 and Clause 4 of Article 7 of the Court Organization Act, a case-accepting judge as a single judge becomes a ‘court’ similar to that of a collegiate panel, so the warrant dismissal is not an order, but a decision. The reapplication for a warrant should not be considered as disobedience of a decision of dismissal. The reapplication for a warrant by reinforcing the reason for warrant request after dismissal does not prevent the warrant judge’s arbitrary judgment. The reapplication for a warrant with no limitation in time can cause greater anxiety in respect to the violation of freedom and human rights. Based on statistical analysis, since the introduction of the arrest warrant examination system in 1997, the current total arrest warrant request rate in 2019 has decreased by 78%, and the warrants directly requested by prosecutors has also decreased by 70%. Despite the great decrease in the request for warrants, the warrant dismissal rate increased almost 30% in 2019, which was 4.6 times greater than in 1997. Even though this is caused by the consistent emphasis of guaranteein
{"title":"Empirical and comparative law analysis of foreign warrant appeal systems and case law, and proposal of amendments to Korea’s Criminal Procedure Law and Arrest Standard Review Board","authors":"Kwang-Soub Song","doi":"10.22397/wlri.2022.38.4.73","DOIUrl":"https://doi.org/10.22397/wlri.2022.38.4.73","url":null,"abstract":"There are broad deviations in the perspectives of stakeholders in the application and request for an arrest warrant, as well as other related processes, including the dismissal and issuance of the warrant. The deviations can be attributed to the imbalance of power between stakeholders, including the police’s dependence on the prosecution’s request for supplementary investigation for warrant application, return and request, internal conflict between the prosecution and the court due to the court’s power to dismiss or issue the arrest warrant requested by the prosecution and conflicting standards for arrest warrant applications. This is a consequence of the varying and ambiguous standards for applying, requesting and issuing a warrant. \u0000In Korea, the conflict between the prosecution and the court over the request for warrants and dismissals have been ongoing over a long time, resulting in the aggravation and intensity of the people’s distrust in the judicial system. \u0000As the grounds for arrest are abstract and ambiguous in the Criminal Procedure Law, it is unavoidable to depend on the judge’s arbitrary decision. In order to avoid this issue, appeals to the warrant judge’s decision should be allowed. However, precedents set by the Supreme Court and the position of appeal disapproval oppose such a proposal. \u0000The major cause for such issues is the fact that a warrant judge is a case-accepting judge. Thus, to have an appeal or quasi-appeal, the judge is required to become a ‘court’ of Article 402, which is not applied to these circumstances. In the case of warrant dismissal, there is a system called the reapplication for warrant. If the appeal is allowed, the suspects’ unstable state will continue for a long time, which can seriously violate the suspects’ freedom and human rights. \u0000However, in the interpretation of Clause 1 of Article 101 of the Constitution, and Clause 1 of Article 5 and Clause 4 of Article 7 of the Court Organization Act, a case-accepting judge as a single judge becomes a ‘court’ similar to that of a collegiate panel, so the warrant dismissal is not an order, but a decision. The reapplication for a warrant should not be considered as disobedience of a decision of dismissal. The reapplication for a warrant by reinforcing the reason for warrant request after dismissal does not prevent the warrant judge’s arbitrary judgment. The reapplication for a warrant with no limitation in time can cause greater anxiety in respect to the violation of freedom and human rights. \u0000Based on statistical analysis, since the introduction of the arrest warrant examination system in 1997, the current total arrest warrant request rate in 2019 has decreased by 78%, and the warrants directly requested by prosecutors has also decreased by 70%. Despite the great decrease in the request for warrants, the warrant dismissal rate increased almost 30% in 2019, which was 4.6 times greater than in 1997. Even though this is caused by the consistent emphasis of guaranteein","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":"114488172","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.2022.38.4.146
Tae-woo Sohn, Buntae Kim
The rapid growth of Islamic finance lead to a rise in the number of disputes that implicate Islamic law(Shaira). Even though the primary law of Islamic finance contract can be that of a common law or civil law country, the implication of Sharia still remains. There is a resistance by some courts to apply Sharia to contracts which invoke another national law. This judgment is based on the principle that only one law can govern a contract and the Rome Convention’s requirement that the law of a contract be that of a national system. Scholars also support these conclusions by general precepts of common law and legal reasoning. In spite of these firm statements from courts and scholars, the practice of arbitral tribunal judging matters of Islamic finance has been to apply the principles of Sharia to fulfill the intent of the parties, who used Islamic financial instruments instead of conventional bank products. There are also cases showing that U.S. courts and European arbitrators are willing to use Sharia. If judges do not understand the reasoning of Islamic finance practice in incorporating Sharia, just like Shamil Bank v. Beximco Pharmaceuticals case, the result greatly hampers the growth of Islamic finance industry as well as the bad prejudice of Islamic law. As Islamic finance arbitrations consistently show a reliance on the use of national law with Sharia, western courts should judge the dispute to the greatest extent possible in accordance with the chosen national law, and only resort to applying Shariah principles as a gap-filler or when Islamic law sources are the basis of the specific issue being raised.
{"title":"A Study on the combined-law clause in Islamic financial contract","authors":"Tae-woo Sohn, Buntae Kim","doi":"10.22397/wlri.2022.38.4.146","DOIUrl":"https://doi.org/10.22397/wlri.2022.38.4.146","url":null,"abstract":"The rapid growth of Islamic finance lead to a rise in the number of disputes that implicate Islamic law(Shaira). Even though the primary law of Islamic finance contract can be that of a common law or civil law country, the implication of Sharia still remains. There is a resistance by some courts to apply Sharia to contracts which invoke another national law. This judgment is based on the principle that only one law can govern a contract and the Rome Convention’s requirement that the law of a contract be that of a national system. Scholars also support these conclusions by general precepts of common law and legal reasoning. In spite of these firm statements from courts and scholars, the practice of arbitral tribunal judging matters of Islamic finance has been to apply the principles of Sharia to fulfill the intent of the parties, who used Islamic financial instruments instead of conventional bank products. There are also cases showing that U.S. courts and European arbitrators are willing to use Sharia. \u0000If judges do not understand the reasoning of Islamic finance practice in incorporating Sharia, just like Shamil Bank v. Beximco Pharmaceuticals case, the result greatly hampers the growth of Islamic finance industry as well as the bad prejudice of Islamic law. As Islamic finance arbitrations consistently show a reliance on the use of national law with Sharia, western courts should judge the dispute to the greatest extent possible in accordance with the chosen national law, and only resort to applying Shariah principles as a gap-filler or when Islamic law sources are the basis of the specific issue being raised.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"1997 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":"125588654","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.2022.38.4.103
Seung-Hee Hong
Crime is not just punishable through punishment. Crime policy has already changed from a punitive nature in the past to a preventive nature today, and accordingly, policies to prevent crime should now be actively devised as a way to increase effectiveness from a long-term perspective. In recent years, both the national economy and the living economy have been chaotic, but looking back on the past history, there has been no time when it was not economically chaotic. Moreover, despite the unimaginably active increase in welfare policies in the past, it is not difficult to find the class still suffering from difficulties in survival, and the desire for goods is growing more than ever due to the growing wealth and wealth. Looking at the crime statistics of the past decade in this situation, the number of property crimes has increased remarkably among all crimes, especially among women and the elderly. In addition, it is possible to guess the dailyization of fraud crimes through the increase in small fraud cases, which shows that the trust effect on norms and the prevention effect through punishment are not effective. At this point, it is now necessary to find a new criminal policy plan, and as a plan, it is proposed to try to combine the behavioral economic perspective that has recently spread like a trend in each field in criminal policy. The behavioral economics point of view is that humans do not make more rational choices than they think, and these limited rational choices cause various characteristics of humans (heuristics and biases), but these characteristics have inherent limitations and also have a great environmental impact. Accordingly, in recent behavioral economics, the idea of free compassion is being directed as a national policy program. This free-temperate program is now introduced in criminal policy, showing that it is necessary to avoid the state's heavy punishment and change the direction of making rational choices (standard compliance) for the people. A representative method for implementing free compassion is ‘nudge’, which seems to be very useful in preventing fraudulent crimes in particularly fraudulent crimes. This is because, unlike other accidental crimes and property crimes, fraud crimes have a relatively long time gap such as deception, error, and disposition of the accused, so there is time to switch to the standard practice of knowledge. From this, fraudulent crimes are a good target to increase the preventive effect of knowledge, and it is necessary to seek specific measures.
{"title":"Suggestions from the perspective of behavioral economics for crime prevention policies for fraudulent crimes.","authors":"Seung-Hee Hong","doi":"10.22397/wlri.2022.38.4.103","DOIUrl":"https://doi.org/10.22397/wlri.2022.38.4.103","url":null,"abstract":"Crime is not just punishable through punishment. Crime policy has already changed from a punitive nature in the past to a preventive nature today, and accordingly, policies to prevent crime should now be actively devised as a way to increase effectiveness from a long-term perspective. In recent years, both the national economy and the living economy have been chaotic, but looking back on the past history, there has been no time when it was not economically chaotic. Moreover, despite the unimaginably active increase in welfare policies in the past, it is not difficult to find the class still suffering from difficulties in survival, and the desire for goods is growing more than ever due to the growing wealth and wealth. Looking at the crime statistics of the past decade in this situation, the number of property crimes has increased remarkably among all crimes, especially among women and the elderly. In addition, it is possible to guess the dailyization of fraud crimes through the increase in small fraud cases, which shows that the trust effect on norms and the prevention effect through punishment are not effective. \u0000At this point, it is now necessary to find a new criminal policy plan, and as a plan, it is proposed to try to combine the behavioral economic perspective that has recently spread like a trend in each field in criminal policy. The behavioral economics point of view is that humans do not make more rational choices than they think, and these limited rational choices cause various characteristics of humans (heuristics and biases), but these characteristics have inherent limitations and also have a great environmental impact. Accordingly, in recent behavioral economics, the idea of free compassion is being directed as a national policy program. This free-temperate program is now introduced in criminal policy, showing that it is necessary to avoid the state's heavy punishment and change the direction of making rational choices (standard compliance) for the people. A representative method for implementing free compassion is ‘nudge’, which seems to be very useful in preventing fraudulent crimes in particularly fraudulent crimes. This is because, unlike other accidental crimes and property crimes, fraud crimes have a relatively long time gap such as deception, error, and disposition of the accused, so there is time to switch to the standard practice of knowledge. From this, fraudulent crimes are a good target to increase the preventive effect of knowledge, and it is necessary to seek specific measures.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"46 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":"124627582","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.2022.38.4.123
Danbie Choi
After the Housing Lease Protection Act is revised, the problems of revised Act was criticized by many people. At first, adoption of the tenant’s right of request for renewal of contract makes supplies of Chonse to reduce because existing tenants exercise the right of request for renewal of contract retroactively. In addition, when the landlord sells the house with the existing Chonse contract, the new owner of the house by buying the house cannot against with the existing tenant’s exercise the right of request for renewal of contract. Therefore, the landlord has difficulty to sell the house if the house has existing Chonse contract so they choose to live the house by themselves gradually. As the result, the portion of monthly rent is increased in the market and vicious circle which are increase of deposit money of Chonse, monthly rent fee and the tenant’s hosing expense is caused. Next, when a lease agreement is renewed, deposit may be increased within 5%. Therefore, the deposit money rises sharply because the landlord decides the deposit money when new lease agreement is made considering inflation rate, depreciation of the house and the increase ration comparing with the neighborhood during 4 years which are the period the landlord cannot increase the deposit money. These problems of revised Housing Lease Protection Act are caused from the application the Act to the every house of whole country all at once. Designation of region where the resident stability of tenant is required relatively strong and range of economical weak who cannot pay the increase deposit money and rent fee is required. When the Act is applied only to lease agreement which are made in the region and with the range of economical weak, the problems can be solved. For this limitation of the application of the Act, the following solutions are suggested in this article referring to the legislation cases of USA, England and Germany. First, deciding the standard of the area where the supply of the high quality house is insufficient and rent fee is increased sharply is required for every certain period. The Act needs to be applied only to these areas. Second, excluding application of limitation on increase of deposit money when the agreement is renewed or new agreement is made can be considered when huge improvement cost is invested into the house by the landlord. Third, excluding application of the Act when the agreement for the house where the rent fee is high or with the tenant who household income is over the certain standard can be considered. Forth, excluding application of the Act into the house where is vacant for certain period and evaluating the house again for every certain period can be considered. Fifth, providing the tenant who are regulated by the Act with a tax favor can be considered. Sixth, Reflection of inflation, improvement cost of the house needs to be considered when the limitation on increase of deposit money or rent fee is decided.
{"title":"Problems of revised Housing Lease Protection Act and the solution","authors":"Danbie Choi","doi":"10.22397/wlri.2022.38.4.123","DOIUrl":"https://doi.org/10.22397/wlri.2022.38.4.123","url":null,"abstract":"After the Housing Lease Protection Act is revised, the problems of revised Act was criticized by many people. At first, adoption of the tenant’s right of request for renewal of contract makes supplies of Chonse to reduce because existing tenants exercise the right of request for renewal of contract retroactively. In addition, when the landlord sells the house with the existing Chonse contract, the new owner of the house by buying the house cannot against with the existing tenant’s exercise the right of request for renewal of contract. Therefore, the landlord has difficulty to sell the house if the house has existing Chonse contract so they choose to live the house by themselves gradually. As the result, the portion of monthly rent is increased in the market and vicious circle which are increase of deposit money of Chonse, monthly rent fee and the tenant’s hosing expense is caused. Next, when a lease agreement is renewed, deposit may be increased within 5%. Therefore, the deposit money rises sharply because the landlord decides the deposit money when new lease agreement is made considering inflation rate, depreciation of the house and the increase ration comparing with the neighborhood during 4 years which are the period the landlord cannot increase the deposit money. \u0000These problems of revised Housing Lease Protection Act are caused from the application the Act to the every house of whole country all at once. Designation of region where the resident stability of tenant is required relatively strong and range of economical weak who cannot pay the increase deposit money and rent fee is required. When the Act is applied only to lease agreement which are made in the region and with the range of economical weak, the problems can be solved. \u0000For this limitation of the application of the Act, the following solutions are suggested in this article referring to the legislation cases of USA, England and Germany. First, deciding the standard of the area where the supply of the high quality house is insufficient and rent fee is increased sharply is required for every certain period. The Act needs to be applied only to these areas. Second, excluding application of limitation on increase of deposit money when the agreement is renewed or new agreement is made can be considered when huge improvement cost is invested into the house by the landlord. Third, excluding application of the Act when the agreement for the house where the rent fee is high or with the tenant who household income is over the certain standard can be considered. Forth, excluding application of the Act into the house where is vacant for certain period and evaluating the house again for every certain period can be considered. Fifth, providing the tenant who are regulated by the Act with a tax favor can be considered. Sixth, Reflection of inflation, improvement cost of the house needs to be considered when the limitation on increase of deposit money or rent fee is decided.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"17 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":"116983656","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}
This paper reviewed the legal nature of medical contracts and the legislative method of medical contracts by reviewing the problems arising in the process of establishing, implementing, and terminating medical contracts in relation to delegation contracts under civil law. In general, non-typical contracts can be divided into ①completely newly created, ②similar to a typical contract, but they are deformed beyond acceptance as a typical contract, and ③the specificity of the contract needs to be discussed. Delegation contracts and medical contracts have a common purpose of handling affairs, but there are differences in essential aspects between delegation provisions under the Civil Act for the purpose of handling property affairs and medical contracts accompanied by invasion of human life or body. Therefore, the norms of delegation contracts are rarely actually applied to medical contracts, or there are cases where there is partial intervention in public law, but there are cases where they have theoretical continuity. However, in the essential elements of both contracts, medical contracts have their own characteristics independent of delegation contracts. Medical contracts are not completely newly created or modified to the point that they cannot be included in a typical contract. Therefore, it should be said that it is a type that needs to be discussed in the delegation contract. In other words, it should be said that delegation contracts and medical contracts have a relative relationship between general types and special types, abstract types and specific types, or basic types and subtypes. Even if medical contracts are subordinate to delegation contracts, the difference between delegation contracts and medical contracts should be seen as larger than non-typical contracts (franchise contracts, etc.) in the form of different office processes theoretically and practically. Since medical contracts are basically based on the rules of human life and body invasion, they should be considered to have a significant difference from the civil law's delegation regulations governing property management. If so, it should be seen that there is a characteristic that cannot be solved by a delegation contract under civil law and a new type of typical contract under civil law. Civil law discussions on the obligations of doctors and patients arising from medical contracts are still in a fluid state. The Civil Code established the basic framework of contracts between individuals. It is not appropriate to incorporate medical contracts with strong public legal elements within these civil codes. As for the legislative form of medical contracts, it is considered reasonable to enact civil special law specializing in medical contracts.
{"title":"Medical Contract","authors":"Young-min Song","doi":"10.22397/bml.2022.28.61","DOIUrl":"https://doi.org/10.22397/bml.2022.28.61","url":null,"abstract":"This paper reviewed the legal nature of medical contracts and the legislative method of medical contracts by reviewing the problems arising in the process of establishing, implementing, and terminating medical contracts in relation to delegation contracts under civil law. \u0000In general, non-typical contracts can be divided into ①completely newly created, ②similar to a typical contract, but they are deformed beyond acceptance as a typical contract, and ③the specificity of the contract needs to be discussed. \u0000Delegation contracts and medical contracts have a common purpose of handling affairs, but there are differences in essential aspects between delegation provisions under the Civil Act for the purpose of handling property affairs and medical contracts accompanied by invasion of human life or body. \u0000Therefore, the norms of delegation contracts are rarely actually applied to medical contracts, or there are cases where there is partial intervention in public law, but there are cases where they have theoretical continuity. \u0000However, in the essential elements of both contracts, medical contracts have their own characteristics independent of delegation contracts. Medical contracts are not completely newly created or modified to the point that they cannot be included in a typical contract. Therefore, it should be said that it is a type that needs to be discussed in the delegation contract. In other words, it should be said that delegation contracts and medical contracts have a relative relationship between general types and special types, abstract types and specific types, or basic types and subtypes. \u0000Even if medical contracts are subordinate to delegation contracts, the difference between delegation contracts and medical contracts should be seen as larger than non-typical contracts (franchise contracts, etc.) in the form of different office processes theoretically and practically. \u0000Since medical contracts are basically based on the rules of human life and body invasion, they should be considered to have a significant difference from the civil law's delegation regulations governing property management. If so, it should be seen that there is a characteristic that cannot be solved by a delegation contract under civil law and a new type of typical contract under civil law. \u0000Civil law discussions on the obligations of doctors and patients arising from medical contracts are still in a fluid state. The Civil Code established the basic framework of contracts between individuals. \u0000It is not appropriate to incorporate medical contracts with strong public legal elements within these civil codes. As for the legislative form of medical contracts, it is considered reasonable to enact civil special law specializing in medical contracts.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"33 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":"116511118","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.2022.28.203
M. Hwang
Korea's quarantine and response to Coronavirus Infection-19 is currently in the spotlight as an exemplary model worldwide. The success of Korea's quarantine against Corona 19 pandemic based on Use of personal information. But the Corona 19 pandemic brings a new problem in the ‘use and protection of personal information’. The question of how to reconcile the conflict between the public interest of preventing infectious diseases and the human rights of individuals is very important. 「Infectious Disease Control and Prevention Act 」Article 76-2 regulates Request for Provision of Information. It states that the head of the Korea Centers for Disease Control Agency or a Mayor/Do Governor may request an information about the location of suspected persons, including a patients of an infectious disease, to the head of a police station if necessary. The Article 76-2 ② states that the Organization and Operation of National Police and Autonomous Police to provide location information of patients of an infectious disease, etc. and persons suspected of contracting an infectious disease, may request any personal location information from the telecommunication service provider and the provider cannot reject such request without justifiable reason. But, these regulations have the following problems: First, the right of Request for Provision of Information is a suspicion of violation of the principle of prohibition of excess. The system for requesting personal information bases on Article 76-2 is, from the point of view of the breadth of the subject, spatial limitlessness, object of information, a suspicion of violation of the principle of prohibition of excess. Second, regarding the concept of person suspected of contracting an infectious disease, there is a suspicion of violation of the principle of clarity
{"title":"A Study of Criminal Law Reaction about Collecting Personal Information to Prevent Infectious Diseases","authors":"M. Hwang","doi":"10.22397/bml.2022.28.203","DOIUrl":"https://doi.org/10.22397/bml.2022.28.203","url":null,"abstract":"Korea's quarantine and response to Coronavirus Infection-19 is currently in the spotlight as an exemplary model worldwide. \u0000The success of Korea's quarantine against Corona 19 pandemic based on Use of personal information. But the Corona 19 pandemic brings a new problem in the ‘use and protection of personal information’. \u0000The question of how to reconcile the conflict between the public interest of preventing infectious diseases and the human rights of individuals is very important. \u0000「Infectious Disease Control and Prevention Act 」Article 76-2 regulates Request for Provision of Information. It states that the head of the Korea Centers for Disease Control Agency or a Mayor/Do Governor may request an information about the location of suspected persons, including a patients of an infectious disease, to the head of a police station if necessary. The Article 76-2 ② states that the Organization and Operation of National Police and Autonomous Police to provide location information of patients of an infectious disease, etc. and persons suspected of contracting an infectious disease, may request any personal location information from the telecommunication service provider and the provider cannot reject such request without justifiable reason. \u0000But, these regulations have the following problems: First, the right of Request for Provision of Information is a suspicion of violation of the principle of prohibition of excess. The system for requesting personal information bases on Article 76-2 is, from the point of view of the breadth of the subject, spatial limitlessness, object of information, a suspicion of violation of the principle of prohibition of excess. \u0000Second, regarding the concept of person suspected of contracting an infectious disease, there is a suspicion of violation of the principle of clarity","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"61 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":"116975136","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}
In this study, it is reviewed the historical origins and requirements of medical practices governed by the concept of over-regulation and so-called ‘health and sanitation risks’, after examining the national regulations on medical practices derived from the concept of medical law, Based on these discussions, it is trying to make a critical examination of the trend toward expansion of the medical practice concept, unlike the medical indication and treatment purpose, which are the requirements for traditional medical practice, from the perspective of the doctor's professionalism, the concept of ‘general public health risk’ is used for the purpose of medical administration to provide practical medical care. In this regard, it presents a critical stance against precedents that recognize the medical act of tattooing. In addition, with respect to the collection of unjust enrichment from medical care benefits under the National Health Insurance Act, we are looking into recent cases that a medical institution may not be denied under the National Health Insurance Act if it is recognized that the essential elements of medical practice are in place and that the doctor has provided actual medical treatment. In particular. this study reviews the extent to which the doctor's discretionary power and right to treat have an impact in the area of tattooing and collection of unfair profits under the Health Insurance Act and civil liability, divided into individual areas. In the field of civil liability, it is also interpreted from this point of view as the strengthening of the duty of care guidance, which is an essential element of medical practice, or the duty of guidance and explanation suggested by precedents. And it reviewed the degree to which the discretionary power and treatment right of doctors affect. Finally, it is not desirable for the necessary legal control over medical care to completely expand the relationship between doctors and patients into legal norms. It is concluded that it is necessary to seek harmony with professionalism.
{"title":"Interpretation and legal challenges for harmonisation between the regulatory purpose of medical practice and professionalism","authors":"B. Kim, Ki-young Kim","doi":"10.22397/bml.2022.28.89","DOIUrl":"https://doi.org/10.22397/bml.2022.28.89","url":null,"abstract":"In this study, it is reviewed the historical origins and requirements of medical practices governed by the concept of over-regulation and so-called ‘health and sanitation risks’, after examining the national regulations on medical practices derived from the concept of medical law, Based on these discussions, it is trying to make a critical examination of the trend toward expansion of the medical practice concept, unlike the medical indication and treatment purpose, which are the requirements for traditional medical practice, from the perspective of the doctor's professionalism, the concept of ‘general public health risk’ is used for the purpose of medical administration to provide practical medical care. In this regard, it presents a critical stance against precedents that recognize the medical act of tattooing. \u0000In addition, with respect to the collection of unjust enrichment from medical care benefits under the National Health Insurance Act, we are looking into recent cases that a medical institution may not be denied under the National Health Insurance Act if it is recognized that the essential elements of medical practice are in place and that the doctor has provided actual medical treatment. \u0000In particular. this study reviews the extent to which the doctor's discretionary power and right to treat have an impact in the area of tattooing and collection of unfair profits under the Health Insurance Act and civil liability, divided into individual areas. In the field of civil liability, it is also interpreted from this point of view as the strengthening of the duty of care guidance, which is an essential element of medical practice, or the duty of guidance and explanation suggested by precedents. And it reviewed the degree to which the discretionary power and treatment right of doctors affect. \u0000Finally, it is not desirable for the necessary legal control over medical care to completely expand the relationship between doctors and patients into legal norms. It is concluded that it is necessary to seek harmony with professionalism.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"20 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":"132935743","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.2022.28.393
M. Shim
The biohealth industry is directly related to human life and national health, and has important characteristics of publicity such as securing accessibility and fair distribution. Accordingly, issues such as exemption from the obligation to protect intellectual property rights, such as the COVID-19 vaccine, activation of the compulsory license system, and free sharing of biotechnology have been steadily raised. However, there are many negative opinions that technology sharing and the weakening of monopoly rights over intellectual property rights in the biohealth industry, which requires long-term mass investment, hinders incentives for technological innovation from the point of view of companies. Therefore, it is necessary to think about ways to maintain the role of motivating technological innovation while promoting fair and open licensing by analyzing the characteristics of patent licenses in the biohealth field. In this article, we analyzed patent licensing models and cases that are actually being carried out in the field of biohealth to derive problems and shortcomings of the current system, and searched for ways to achieve efficient technology transfer and open innovation. For this purpose, the scope of the biohealth industry is first specified, and the specificity of the biohealth industry and patent licenses in that industry is analyzed. Next, areas requiring improvement were derived through investigation and analysis of representative license models and cases in the biohealth field. Through this process, institutional and policy countermeasures were proposed to promote technological innovation along with efficient technology transfer and technology securing in the biohealth industry.
{"title":"A study on the characteristics of patent licenses in the biohealth industry","authors":"M. Shim","doi":"10.22397/bml.2022.28.393","DOIUrl":"https://doi.org/10.22397/bml.2022.28.393","url":null,"abstract":"The biohealth industry is directly related to human life and national health, and has important characteristics of publicity such as securing accessibility and fair distribution. Accordingly, issues such as exemption from the obligation to protect intellectual property rights, such as the COVID-19 vaccine, activation of the compulsory license system, and free sharing of biotechnology have been steadily raised. However, there are many negative opinions that technology sharing and the weakening of monopoly rights over intellectual property rights in the biohealth industry, which requires long-term mass investment, hinders incentives for technological innovation from the point of view of companies. Therefore, it is necessary to think about ways to maintain the role of motivating technological innovation while promoting fair and open licensing by analyzing the characteristics of patent licenses in the biohealth field. \u0000In this article, we analyzed patent licensing models and cases that are actually being carried out in the field of biohealth to derive problems and shortcomings of the current system, and searched for ways to achieve efficient technology transfer and open innovation. For this purpose, the scope of the biohealth industry is first specified, and the specificity of the biohealth industry and patent licenses in that industry is analyzed. Next, areas requiring improvement were derived through investigation and analysis of representative license models and cases in the biohealth field. Through this process, institutional and policy countermeasures were proposed to promote technological innovation along with efficient technology transfer and technology securing in the biohealth industry.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"39 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":"116491422","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}
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