Pub Date : 2022-12-31DOI: 10.22397/bml.2022.28.295
Eun-Jin Kim
Interest in eco-friendly agriculture, which began to spread after the pesticide egg incident in 2017, has developed into an essential question in the certification system in 2022. When the eco-friendly agriculture certification system was introduced in the early 2000s, the certification mark itself was the criterion for confidence in the safety of agricultural products, but now the certification system itself is being challenged. Certified farmers began to discuss the burden of the certification system, and consumers began to discuss that certification alone was not enough. The discussion has gradually grown to point out the problems of the certification system itself, and the consensus among producers, farmers and consumers to resolve them is being formed. The certification system has been implemented for the past 20 years in terms of labeling management for certified agricultural products. The emphasis was on which agricultural products to be labeled, so it was a material-based certification system that focused on whether or not the soil and water used in the cultivation process were contaminated based on the agricultural product, which is the final product. However, discussions began to shift to ‘process-based certification’ that focuses on who, in what environment, and how the agricultural products were grown from ‘result-based certification’ that relies on these test analysis results. However, what can be easily overlooked in ‘result-based certification’ or ‘process-based certification’ is the reason for doing ‘organic farming’. Organic farming has value as an alternative to overcome the current crisis, climate crisis, and food crisis in order for humans to continue to the next generation. Therefore, it is time to restore ‘organic agriculture’ in its true meaning through the method of restoring the relationship between humans and nature and cooperation between humans.
{"title":"Study on the Improvement of the Result-based Organic Certification System","authors":"Eun-Jin Kim","doi":"10.22397/bml.2022.28.295","DOIUrl":"https://doi.org/10.22397/bml.2022.28.295","url":null,"abstract":"Interest in eco-friendly agriculture, which began to spread after the pesticide egg incident in 2017, has developed into an essential question in the certification system in 2022. When the eco-friendly agriculture certification system was introduced in the early 2000s, the certification mark itself was the criterion for confidence in the safety of agricultural products, but now the certification system itself is being challenged. \u0000Certified farmers began to discuss the burden of the certification system, and consumers began to discuss that certification alone was not enough. The discussion has gradually grown to point out the problems of the certification system itself, and the consensus among producers, farmers and consumers to resolve them is being formed. \u0000The certification system has been implemented for the past 20 years in terms of labeling management for certified agricultural products. The emphasis was on which agricultural products to be labeled, so it was a material-based certification system that focused on whether or not the soil and water used in the cultivation process were contaminated based on the agricultural product, which is the final product. However, discussions began to shift to ‘process-based certification’ that focuses on who, in what environment, and how the agricultural products were grown from ‘result-based certification’ that relies on these test analysis results. \u0000However, what can be easily overlooked in ‘result-based certification’ or ‘process-based certification’ is the reason for doing ‘organic farming’. Organic farming has value as an alternative to overcome the current crisis, climate crisis, and food crisis in order for humans to continue to the next generation. Therefore, it is time to restore ‘organic agriculture’ in its true meaning through the method of restoring the relationship between humans and nature and cooperation between humans.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"121 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":"122561716","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.2022.28.433
Hyeong-Seok Lee
In recent years, medical technology is advancing day by day. Accordingly, the importance of protecting the rights of patients is emphasized. Methods and forms of ensuring patient rights vary from country to country. In the EU, which consists of European countries, patient protection is guaranteed through the laws of the member countries, but also at the EU level. Although the rights of patients are directly guaranteed by law, it is also supplemented by precedents of courts, so it can be seen that the interest in the protection of patients' rights is generally high. Attempts are being made to guarantee patient rights locally through Directive 2011/24 on the rights of patients and cross-border health services of 9 March 2011 in the EU. This directive is the only document that guarantees patient rights in EU legislation. The purpose of this directive is to establish a system that guarantees the right of patients to enjoy health services across EU borders. In addition, a system that can be used in other countries based on the patient's right to receive medical services equivalent to that of their own country within the EU region and prescriptions issued in their own country was established. EU member states must improve their health care system to realize the purpose of the Directive.
{"title":"Expanded Access Program and The European Convention on Human Rights: Hristozov and Others v. Focusing on the Bulgarian Incident","authors":"Hyeong-Seok Lee","doi":"10.22397/bml.2022.28.433","DOIUrl":"https://doi.org/10.22397/bml.2022.28.433","url":null,"abstract":"In recent years, medical technology is advancing day by day. Accordingly, the importance of protecting the rights of patients is emphasized. Methods and forms of ensuring patient rights vary from country to country. \u0000In the EU, which consists of European countries, patient protection is guaranteed through the laws of the member countries, but also at the EU level. Although the rights of patients are directly guaranteed by law, it is also supplemented by precedents of courts, so it can be seen that the interest in the protection of patients' rights is generally high. Attempts are being made to guarantee patient rights locally through Directive 2011/24 on the rights of patients and cross-border health services of 9 March 2011 in the EU. This directive is the only document that guarantees patient rights in EU legislation. The purpose of this directive is to establish a system that guarantees the right of patients to enjoy health services across EU borders. In addition, a system that can be used in other countries based on the patient's right to receive medical services equivalent to that of their own country within the EU region and prescriptions issued in their own country was established. EU member states must improve their health care system to realize the purpose of the Directive.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"48 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":"124121654","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.2022.38.4.3
J. Joo
South Korea recognizes death with dignity only in the form of cessation of life-sustaining treatment for patients in the process of dying. Accordingly, a terminally ill patient or a patient in a persistent vegetative state cannot make a decision to die with dignity, and even if he or she is the target, there are limitations in choosing a method of dying with dignity such as physician-assisted suicide. These limitations cannot preclude discussion from the stage of component requirements. Therefore, in the decision to die with dignity, it is necessary to ensure that death with dignity is sufficiently guaranteed through the establishment of the component requirements for the right to self-determination on death. Regarding the requirements for becoming the subject of the right to self-determination on death in the decision to die with dignity, the requirements of irreversibility and the uselessness of treatment become the focal points. Accordingly, it is against the principle of equality to exclude a patient who has no essential difference from a patient in the process of dying and who meets the requirements from the subject. Therefore, in principle, it is desirable to acknowledge the subjectivity of the right to self-determination on death for these patients. First, in terms of the right to defense of the right to self-determination on death, the subject of the decision to die with dignity can request that the state stop restrictions on physician-assisted suicide. In the same respect, it is possible to ask the state to make a decision to discontinue general life-sustaining treatment. Next, based on the social rights aspect of the right to self-determination on death, the subject of decision to die with dignity can claim the right to receive social insurance and public assistance from the state. In particular, it can be requested that the state prepare overall welfare conditions such as hospice and palliative care systems so that patients' self-determination can be free from economic pressure. And, in terms of the protective right of the right to self-determination on death, the subject of the decision to die with dignity may claim the right to receive assistance from a doctor to the state. For example, if death with dignity is carried out by a private person other than a doctor, the right to self-determination on death may be violated, so the patient can request legislation to the state that obligates the participation of doctors in the decision to die with dignity. Lastly, in terms of the procedural right of the right to self-determination on death, in relation to organizations, supplementary legislative requests can be made to the state to expand the establishment or vitalize the operation of the Medical Institution Ethics Committee or the Public Ethics Committee. Regarding the procedure, it may be possible to request the state to prepare legislation to supplement the procedure for implementing death with dignity.
{"title":"Constitutional Guarantee of Death with Dignity: Focusing on Setting the Component Requirements ofthe Right to Self-Determination on Death","authors":"J. Joo","doi":"10.22397/wlri.2022.38.4.3","DOIUrl":"https://doi.org/10.22397/wlri.2022.38.4.3","url":null,"abstract":"South Korea recognizes death with dignity only in the form of cessation of life-sustaining treatment for patients in the process of dying. Accordingly, a terminally ill patient or a patient in a persistent vegetative state cannot make a decision to die with dignity, and even if he or she is the target, there are limitations in choosing a method of dying with dignity such as physician-assisted suicide. These limitations cannot preclude discussion from the stage of component requirements. Therefore, in the decision to die with dignity, it is necessary to ensure that death with dignity is sufficiently guaranteed through the establishment of the component requirements for the right to self-determination on death. \u0000Regarding the requirements for becoming the subject of the right to self-determination on death in the decision to die with dignity, the requirements of irreversibility and the uselessness of treatment become the focal points. Accordingly, it is against the principle of equality to exclude a patient who has no essential difference from a patient in the process of dying and who meets the requirements from the subject. Therefore, in principle, it is desirable to acknowledge the subjectivity of the right to self-determination on death for these patients. \u0000First, in terms of the right to defense of the right to self-determination on death, the subject of the decision to die with dignity can request that the state stop restrictions on physician-assisted suicide. In the same respect, it is possible to ask the state to make a decision to discontinue general life-sustaining treatment. Next, based on the social rights aspect of the right to self-determination on death, the subject of decision to die with dignity can claim the right to receive social insurance and public assistance from the state. In particular, it can be requested that the state prepare overall welfare conditions such as hospice and palliative care systems so that patients' self-determination can be free from economic pressure. And, in terms of the protective right of the right to self-determination on death, the subject of the decision to die with dignity may claim the right to receive assistance from a doctor to the state. For example, if death with dignity is carried out by a private person other than a doctor, the right to self-determination on death may be violated, so the patient can request legislation to the state that obligates the participation of doctors in the decision to die with dignity. Lastly, in terms of the procedural right of the right to self-determination on death, in relation to organizations, supplementary legislative requests can be made to the state to expand the establishment or vitalize the operation of the Medical Institution Ethics Committee or the Public Ethics Committee. Regarding the procedure, it may be possible to request the state to prepare legislation to supplement the procedure for implementing death with dignity.","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":"130221925","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.2022.28.121
Yi Zhang
The legal presumption of medical fault in Chinese law has been controversial since its promulgation. The focus of academic debate focuses on whether the behavior that violates the legal norms and diagnostic and therapeutic norms is the standard of fault identification or the precondition of fault presumption. To solve the dispute, we must first clarify the applicable premise of the legal presumption of medical fault. According to the logic of law application, medical fault is not a fact that can be directly proved by evidence, but a legal evaluation. The existence of medical fault elements should be independently evaluated by the judge. However, the problem in China's medical litigation is that the application of the legal presumption of medical fault deviates from the applicable logic that should be followed. The problem at the legislative level is that medical fault should not be regulated by legal presumption, and the legal presumption and fault presumption were confused at the beginning of legislation. Based on this, in China's medical litigation, it is necessary to distinguish between the medical fault of medical institutions and the fault that hinders the investigation of facts. If the medical institution forges medical records and refuses to provide medical records, which makes it difficult for the court to find out whether the medical institution's diagnosis and treatment activities, diagnosis and treatment behaviors cause damage and the size of the damage, then the medical institution should be directly made to bear the adverse consequences of proving the obstruction, that is, bear the responsibility commensurate with the degree of fault that hinders the investigation of the facts. As for the medical fault, it should be judged by the judge according to the diagnosis and treatment activities of the medical institution. The behavior of medical institutions in violation of diagnosis and treatment norms and legal norms is the basis and factor for judges to comprehensively judge whether there is medical fault. The fact based on which to evaluate whether the fault exists or not is the object of the parties' proof.
{"title":"Research on Presumption of Fault in Medical Litigation in China","authors":"Yi Zhang","doi":"10.22397/bml.2022.28.121","DOIUrl":"https://doi.org/10.22397/bml.2022.28.121","url":null,"abstract":"The legal presumption of medical fault in Chinese law has been controversial since its promulgation. The focus of academic debate focuses on whether the behavior that violates the legal norms and diagnostic and therapeutic norms is the standard of fault identification or the precondition of fault presumption. To solve the dispute, we must first clarify the applicable premise of the legal presumption of medical fault. According to the logic of law application, medical fault is not a fact that can be directly proved by evidence, but a legal evaluation. The existence of medical fault elements should be independently evaluated by the judge. However, the problem in China's medical litigation is that the application of the legal presumption of medical fault deviates from the applicable logic that should be followed. The problem at the legislative level is that medical fault should not be regulated by legal presumption, and the legal presumption and fault presumption were confused at the beginning of legislation. \u0000Based on this, in China's medical litigation, it is necessary to distinguish between the medical fault of medical institutions and the fault that hinders the investigation of facts. If the medical institution forges medical records and refuses to provide medical records, which makes it difficult for the court to find out whether the medical institution's diagnosis and treatment activities, diagnosis and treatment behaviors cause damage and the size of the damage, then the medical institution should be directly made to bear the adverse consequences of proving the obstruction, that is, bear the responsibility commensurate with the degree of fault that hinders the investigation of the facts. As for the medical fault, it should be judged by the judge according to the diagnosis and treatment activities of the medical institution. The behavior of medical institutions in violation of diagnosis and treatment norms and legal norms is the basis and factor for judges to comprehensively judge whether there is medical fault. The fact based on which to evaluate whether the fault exists or not is the object of the parties' proof.","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":"133512700","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 : 2022-09-30DOI: 10.22397/wlri.2022.38.3.101
Seung Hyun Lee
The judgment number 2020 Da 46633, July 28, 2022, Supreme Court has the following issues. First, the issue is whether the effect of notification is recognized in the notification of credit transfer and whether the notification of credit transfer in this case involves the meaning of claim for implementation. Second, if the case covers the effect of notification, the question is whether acknowledgment of indebtedness is included in the supplementary measures for definitive interruption of prescription after notification. Third, the question is whether there is room to interpret with restrictions that interruption of prescription does not affect guarantee debtors while seeing that acknowledgment of indebtedness is included in supplementary measures for definitive interruption of prescription after notification. As for the first issue, there is the judgment “(even if the right of general notification of credit transfer pertains to an event other than trials on the right is a separate question) when there is a special circumstance such as a request for implementation is additionally attached to informing of the credit transfer in the notification of credit transfer, this can be recognized as an exercise of the right other than trials on the right,” which is the unanimous judgment number 2010 Da 28840, March 22, 2012, Supreme Court. In this legal principle, after recognizing the premise that the unanimous judgment can be applied also to the extinctive prescription rather than the exclusion period, the request for exercise is additionally attached to the notification of credit transfer in this case. Therefore, it was judged that the effect of interruption of extinctive prescription can be recognized due to “the special circumstance.” As for the second issue, this judgment ruled that acknowledgment of indebtedness pertained to supplementary measures for definitive interruption of prescription after notification. As for the third issue, this judgment, from the perspective that the effect of interruption of prescription reached guarantee debtors, accepted the original judgment (Case Number 2019 Na 1671, September 24, 2020, Ulsan District Court) that “the extinctive prescription of guarantee credit for this case has definitively been interrupted on around December 30, 2008 when the notification of credit transfer reached a dead A.” This paper reviewed related points according to the above-presented issues about this judgment, in relation to the conclusion out of the dismissal of the appeal as well as judgment on each of the issues and clarified the feasibility of the judgment and the reasons. This judgment expressly clarified the standpoints that acknowledgment of indebtedness is included in the supplementary measures for definitive interruption of prescription after notification for the first time as for the second issue. There are very few literature presented in textbooks and notes in relation to this issue. Even if such matters are handled, it would
{"title":"Supplementary Measures for Definitive Interruption of Prescription after Acknowledgment and Notification of Indebtedness - Review of Judgment Number 2020 Da 46633, July 28, 2022, Supreme Court -","authors":"Seung Hyun Lee","doi":"10.22397/wlri.2022.38.3.101","DOIUrl":"https://doi.org/10.22397/wlri.2022.38.3.101","url":null,"abstract":"The judgment number 2020 Da 46633, July 28, 2022, Supreme Court has the following issues. \u0000First, the issue is whether the effect of notification is recognized in the notification of credit transfer and whether the notification of credit transfer in this case involves the meaning of claim for implementation. Second, if the case covers the effect of notification, the question is whether acknowledgment of indebtedness is included in the supplementary measures for definitive interruption of prescription after notification. Third, the question is whether there is room to interpret with restrictions that interruption of prescription does not affect guarantee debtors while seeing that acknowledgment of indebtedness is included in supplementary measures for definitive interruption of prescription after notification. \u0000As for the first issue, there is the judgment “(even if the right of general notification of credit transfer pertains to an event other than trials on the right is a separate question) when there is a special circumstance such as a request for implementation is additionally attached to informing of the credit transfer in the notification of credit transfer, this can be recognized as an exercise of the right other than trials on the right,” which is the unanimous judgment number 2010 Da 28840, March 22, 2012, Supreme Court. In this legal principle, after recognizing the premise that the unanimous judgment can be applied also to the extinctive prescription rather than the exclusion period, the request for exercise is additionally attached to the notification of credit transfer in this case. Therefore, it was judged that the effect of interruption of extinctive prescription can be recognized due to “the special circumstance.” As for the second issue, this judgment ruled that acknowledgment of indebtedness pertained to supplementary measures for definitive interruption of prescription after notification. As for the third issue, this judgment, from the perspective that the effect of interruption of prescription reached guarantee debtors, accepted the original judgment (Case Number 2019 Na 1671, September 24, 2020, Ulsan District Court) that “the extinctive prescription of guarantee credit for this case has definitively been interrupted on around December 30, 2008 when the notification of credit transfer reached a dead A.” This paper reviewed related points according to the above-presented issues about this judgment, in relation to the conclusion out of the dismissal of the appeal as well as judgment on each of the issues and clarified the feasibility of the judgment and the reasons. \u0000This judgment expressly clarified the standpoints that acknowledgment of indebtedness is included in the supplementary measures for definitive interruption of prescription after notification for the first time as for the second issue. There are very few literature presented in textbooks and notes in relation to this issue. Even if such matters are handled, it would ","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"209 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115486089","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 : 2022-09-30DOI: 10.22397/wlri.2022.38.3.27
Hyunchul Kim, Kiseok Moon
The Act on the Development of Local Universities and Colleges and Regional Human Resources (the “Act on Local Universities”) mandates local universities and colleges to allocate a fixed percentage or more of their admission quota to local applicants, identified in the Act as regional human resources. Such a mandatory admission system has the following ground for further unconstitutionality. First, Section 15(6) of the Act on Local Universities violates the rule against blanket delegation, because: (1) delegation is implemented when there is no need; and (2) no predictability can be recognized. In addition, the regulation section 10(3), promulgated under the Act on Local Universities, likewise does not provide any predictability, and the relevant provisions under the rule allow arbitrary interpretation and enforcement by the administrative agencies, violating the principle of clarity. Furthermore, the system at issue interferes with the local universities and colleges’ right to the autonomy of institutions of higher learning and the right to carry out necessary education to pursue an occupation of their choosing held by the applicants who have graduated from universities and colleges in the Capital city area, by violating the doctrine against over-inclusiveness, a basic doctrine the government must comply with whenever it attempts to interfere with the basic rights of citizens. Finally, the scheme under the Act on Local Universities violates the principle of equality, as it imposes the obligation of admitting local talents only upon local law-schools, not upon the law schools located in the Capital city and its suburbs. There is no reasonable justification for such a discriminatory treatment of law schools. Accordingly, the scheme of selecting local talents under the Act on Local Universities must be stricken down, or if the government wants to continue the system, there should be legislative amendments and improvements to the system. First, when the Act on Local Universities delegates legislative authorities to rule-making agencies, the legislature must specify the maxim ratio of local talent admission in the Act itself, and only the authority to determine detailed ratios shall be delegated. Second, the timing to implement the system must be specified in the rules, considering the possibility of local law schools’ failure to fill the mandated ratio. Third, the definition of local talents shall be enlarged to include those who have graduated from relevant local high schools. Here, it should be noted that the government, central or local, shall fully support such local talents financially so as for such students to focus only on pursuing their legal education. Fourth, the duty to admit local talents shall be imposed also upon law schools located in the Capital city and its suburban cities so that the burden is shouldered fairly.
{"title":"A Study on the Unconstitutionality of the Regional Human Resources Selection Provisions in the Act on the Development of Local Universities and Colleges and Regional Human Resources, and its Regulation","authors":"Hyunchul Kim, Kiseok Moon","doi":"10.22397/wlri.2022.38.3.27","DOIUrl":"https://doi.org/10.22397/wlri.2022.38.3.27","url":null,"abstract":"The Act on the Development of Local Universities and Colleges and Regional Human Resources (the “Act on Local Universities”) mandates local universities and colleges to allocate a fixed percentage or more of their admission quota to local applicants, identified in the Act as regional human resources. Such a mandatory admission system has the following ground for further unconstitutionality. \u0000First, Section 15(6) of the Act on Local Universities violates the rule against blanket delegation, because: (1) delegation is implemented when there is no need; and (2) no predictability can be recognized. In addition, the regulation section 10(3), promulgated under the Act on Local Universities, likewise does not provide any predictability, and the relevant provisions under the rule allow arbitrary interpretation and enforcement by the administrative agencies, violating the principle of clarity. Furthermore, the system at issue interferes with the local universities and colleges’ right to the autonomy of institutions of higher learning and the right to carry out necessary education to pursue an occupation of their choosing held by the applicants who have graduated from universities and colleges in the Capital city area, by violating the doctrine against over-inclusiveness, a basic doctrine the government must comply with whenever it attempts to interfere with the basic rights of citizens. Finally, the scheme under the Act on Local Universities violates the principle of equality, as it imposes the obligation of admitting local talents only upon local law-schools, not upon the law schools located in the Capital city and its suburbs. There is no reasonable justification for such a discriminatory treatment of law schools. \u0000Accordingly, the scheme of selecting local talents under the Act on Local Universities must be stricken down, or if the government wants to continue the system, there should be legislative amendments and improvements to the system. First, when the Act on Local Universities delegates legislative authorities to rule-making agencies, the legislature must specify the maxim ratio of local talent admission in the Act itself, and only the authority to determine detailed ratios shall be delegated. Second, the timing to implement the system must be specified in the rules, considering the possibility of local law schools’ failure to fill the mandated ratio. Third, the definition of local talents shall be enlarged to include those who have graduated from relevant local high schools. Here, it should be noted that the government, central or local, shall fully support such local talents financially so as for such students to focus only on pursuing their legal education. Fourth, the duty to admit local talents shall be imposed also upon law schools located in the Capital city and its suburban cities so that the burden is shouldered fairly.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133151129","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 : 2022-09-30DOI: 10.22397/wlri.2022.38.3.195
Zhiying Xuan, M. Shen
{"title":"On the regulatory path transformation of Valuation Adjustment Mechanism","authors":"Zhiying Xuan, M. Shen","doi":"10.22397/wlri.2022.38.3.195","DOIUrl":"https://doi.org/10.22397/wlri.2022.38.3.195","url":null,"abstract":"<jats:p />","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114896341","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 : 2022-09-30DOI: 10.22397/wlri.2022.38.3.163
E. Shin
This thesis examines the legal relationship with respect to illegal medical institutions established by non-medical practitioner. Medical practice always involves risks to life and body due to its invasiveness to the human body. Due to these characteristics, the Medical Act allows licensed medical personnel to perform medical activities within the scope of their license. There is a risk that the quality of health care may deteriorate as the medical entity that manages the medical institution is separated from the medical entity that operates the medical institution in order to prevent the occurrence of medical distortion such as excessive treatment for the pursuit of profit. Therefore, in order to prevent this, medical institutions must have non-profit and there are restrictions on the establishment of medical institutions. In other words, the establishment of a medical institution is limited to medical doctors, medical corporations, or non-profit corporations. In case of violation of this rule, the qualifications for medical establishment are strictly limited by the provision of punishment. Medical institutions established illegally by non-medical practitioner pose a threat to national health, deteriorate the soundness of health insurance finances, and destroy the medical ecosystem. Even if a non-medical practitioner establishes an illegal medical institution, it is difficult to determine whether it is an illegal medical institution because it meets the requirements for establishing qualifications prescribed by the Medical Act. Therefore, in order to judge whether a medical institution is an illegally established medical institution, it should be judged on the basis of its substance. A medical institution can be judged to be an illegally established medical institution when non-medical practitioners are leading the operation of the medical institution and the performance of the operation is attributed to the non-medical practitioners. If an illegally established medical institution receives medical insurance benefits from the National Health Insurance Corporation while operating a medical institution, it is subject to unjust enrichment collection because it has received medical insurance benefits “using deceit or other unfair methods” under Article 57 (1) of the National Health Insurance Act. In the scope of unjust enrichment collection for medical insurance benefit expenses paid by illegally established medical institutions, some recent judgments have judged the disposition of unjust enrichment collection as a discretionary act. Therefore, it is said that the amount of unjust enrichment to be returned should be calculated in consideration of the attribution of the paid medical care expenses or the realistic ability of the owner of the establishment. However, the unjust enrichment collection system under the National Health Insurance Act is not a disposition to recover unjustly generated gains, but a disposition to restore the original state o
{"title":"A Study on the Evaluation Criteria and Medical Insurance Benefits for Illegal Establishment of Medical Institutions","authors":"E. Shin","doi":"10.22397/wlri.2022.38.3.163","DOIUrl":"https://doi.org/10.22397/wlri.2022.38.3.163","url":null,"abstract":"This thesis examines the legal relationship with respect to illegal medical institutions established by non-medical practitioner. Medical practice always involves risks to life and body due to its invasiveness to the human body. Due to these characteristics, the Medical Act allows licensed medical personnel to perform medical activities within the scope of their license. There is a risk that the quality of health care may deteriorate as the medical entity that manages the medical institution is separated from the medical entity that operates the medical institution in order to prevent the occurrence of medical distortion such as excessive treatment for the pursuit of profit. Therefore, in order to prevent this, medical institutions must have non-profit and there are restrictions on the establishment of medical institutions. In other words, the establishment of a medical institution is limited to medical doctors, medical corporations, or non-profit corporations. In case of violation of this rule, the qualifications for medical establishment are strictly limited by the provision of punishment. \u0000Medical institutions established illegally by non-medical practitioner pose a threat to national health, deteriorate the soundness of health insurance finances, and destroy the medical ecosystem. Even if a non-medical practitioner establishes an illegal medical institution, it is difficult to determine whether it is an illegal medical institution because it meets the requirements for establishing qualifications prescribed by the Medical Act. Therefore, in order to judge whether a medical institution is an illegally established medical institution, it should be judged on the basis of its substance. A medical institution can be judged to be an illegally established medical institution when non-medical practitioners are leading the operation of the medical institution and the performance of the operation is attributed to the non-medical practitioners. If an illegally established medical institution receives medical insurance benefits from the National Health Insurance Corporation while operating a medical institution, it is subject to unjust enrichment collection because it has received medical insurance benefits “using deceit or other unfair methods” under Article 57 (1) of the National Health Insurance Act. \u0000In the scope of unjust enrichment collection for medical insurance benefit expenses paid by illegally established medical institutions, some recent judgments have judged the disposition of unjust enrichment collection as a discretionary act. Therefore, it is said that the amount of unjust enrichment to be returned should be calculated in consideration of the attribution of the paid medical care expenses or the realistic ability of the owner of the establishment. However, the unjust enrichment collection system under the National Health Insurance Act is not a disposition to recover unjustly generated gains, but a disposition to restore the original state o","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130277388","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 : 2022-09-30DOI: 10.22397/wlri.2022.38.3.221
Chen Sun
{"title":"On Protection and Regulation of Beneficiaries' Rights in Voting Trusts","authors":"Chen Sun","doi":"10.22397/wlri.2022.38.3.221","DOIUrl":"https://doi.org/10.22397/wlri.2022.38.3.221","url":null,"abstract":"<jats:p />","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116367901","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 : 2022-09-30DOI: 10.22397/wlri.2022.38.3.51
J. Park
Today, the seizure and search of electronic data stored on ISP/CP servers is no longer considered as a specific type of investigative measure and is typically performed in the early stages of an investigation, like accessing data stored on the personal storage devices. In the former case, it violates the principle of fair trial and proportionality that the right to participate, which is an effective control over excessive information collection by the Supreme Court of Korea, can be excluded from the outset by the investigating authority not by an objective and independent third party. In text, the Constitutional Court of Korea is in a position that this defect of procedural guarantee can be sufficiently compensated through protesting against the exclusion of illegally obtained evidence or filing an appeal. However, it is questionable whether this is justifiable considering the extensive seizure and search, the objections after indictment-related dispositions, and the trial procedures that have already been initiated. Meanwhile, the seizure and search of third-party archive data and the notification of the accused, i.e. the individuals affected by the data, have been disputed over the past ten years, also in Germany, along with discussions on the openness/confidentiality of measures. Especially in the area of security crime, the general provisions of the seizure and search of StPO should be considered as directory provisions for effective investigation. And this violation is neither illegal nor revoked. Therefore, the investigative agencies argued that they could confidentially execute the seizure and search based on this court order under the general regulations. However, the BGH and the BVerfG clearly rejected this opinion. The BVerfG explained as follows: If the seizure and search of electronic data stored on the ISP/CP’s server is carried out openly, it may be based on the general regulations, just like the seizure and search of the data stored in the personal storage devices, while if such an action is carried out confidentially, it should be accompanied by enhanced procedural control. In 2021, the German parliament made § 95a StPO, a legal basis for allowing searches and seizures under the general regulations to be carried out confidentially, which means without knowing the person affected by the data, i.e. the suspect. The rule allows deferral of notification at the same level as ensuring Procedures in Telecommunications Surveillance. In today's information technology conditions, there is no reason to treat the data differently whether it is stored on a server or on a personal data storage device when investigative agencies access electronic data. Therefore, in both cases, the procedural guarantee to protect fundamental rights and their exclusion should be permissible under the same requirements according to the rule of law and the principle of proportionality. It must be taken into account here that secret coercive measures need to be ta
{"title":"The search and seizure of third-party stored data and notification to data subjects","authors":"J. Park","doi":"10.22397/wlri.2022.38.3.51","DOIUrl":"https://doi.org/10.22397/wlri.2022.38.3.51","url":null,"abstract":"Today, the seizure and search of electronic data stored on ISP/CP servers is no longer considered as a specific type of investigative measure and is typically performed in the early stages of an investigation, like accessing data stored on the personal storage devices. In the former case, it violates the principle of fair trial and proportionality that the right to participate, which is an effective control over excessive information collection by the Supreme Court of Korea, can be excluded from the outset by the investigating authority not by an objective and independent third party. In text, the Constitutional Court of Korea is in a position that this defect of procedural guarantee can be sufficiently compensated through protesting against the exclusion of illegally obtained evidence or filing an appeal. However, it is questionable whether this is justifiable considering the extensive seizure and search, the objections after indictment-related dispositions, and the trial procedures that have already been initiated. \u0000Meanwhile, the seizure and search of third-party archive data and the notification of the accused, i.e. the individuals affected by the data, have been disputed over the past ten years, also in Germany, along with discussions on the openness/confidentiality of measures. Especially in the area of security crime, the general provisions of the seizure and search of StPO should be considered as directory provisions for effective investigation. And this violation is neither illegal nor revoked. Therefore, the investigative agencies argued that they could confidentially execute the seizure and search based on this court order under the general regulations. However, the BGH and the BVerfG clearly rejected this opinion. The BVerfG explained as follows: If the seizure and search of electronic data stored on the ISP/CP’s server is carried out openly, it may be based on the general regulations, just like the seizure and search of the data stored in the personal storage devices, while if such an action is carried out confidentially, it should be accompanied by enhanced procedural control. In 2021, the German parliament made § 95a StPO, a legal basis for allowing searches and seizures under the general regulations to be carried out confidentially, which means without knowing the person affected by the data, i.e. the suspect. The rule allows deferral of notification at the same level as ensuring Procedures in Telecommunications Surveillance. \u0000In today's information technology conditions, there is no reason to treat the data differently whether it is stored on a server or on a personal data storage device when investigative agencies access electronic data. Therefore, in both cases, the procedural guarantee to protect fundamental rights and their exclusion should be permissible under the same requirements according to the rule of law and the principle of proportionality. It must be taken into account here that secret coercive measures need to be ta","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"126 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132471033","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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