Pub Date : 2022-09-30DOI: 10.22397/wlri.2022.38.3.3
Yoo-Jin Han
Appeals Suit and Constitutional Complaint is known as separate systems in which different judicial bodies(General courts and the Constitutional courts) have jurisdiction with different requirements, procedures, effects, and functions. However, both systems have important commonalities in terms of the judicial system for controlling the exercise of governmental power and relieving the rights of people. They currently form the centerpiece of the judicial remedies in public law. Therefore, understanding the relationship between the two systems and examining the boundaries has become a subject of continuous interest in the public law academia. Recently, such discussion has drawn more attention as the general courts actively expanded the category of appeals suit, driven by various social changes including competition with the constitutional court. The consideration on the inclusion of the subject of appeals suit and constitutional complaint is regarded as an essential topic of discussion, being a reference point for establishing the relationship and boundary between the two systems. This study aimed to examine the subjects of ‘appeals suit’ and ‘constitutional complaints' based on the awareness of the problem of establishing the relationship between ‘appeals suit’ and ‘constitutional complaint’. ‘Disposition’, which is the subject of appeals suit, and ‘exercise or non-exercise of public power’, which is the subject of constitutional complaints, were examined with consideration of the correlationship and interoperability between the two. The underlying tendency of the general courts to widely acknowledge the range of disposition has also affected the subject of constitutional complaints that are normatively interoperated, which resultantly caused significant changes in the overall judicial remedy system in the event of a violation of the people's public legal rights by the action of public power. The efforts of the general courts and the Constitutional Court are required to establish a public legal remedies system to guarantee the maximum extent of public legal remedies.
{"title":"A Study on the Subjects of Appeals Suit and Constitutional Complaints: Focusing on the changes in the public legal rights remedies system resulted from the tendency to expand the disposability","authors":"Yoo-Jin Han","doi":"10.22397/wlri.2022.38.3.3","DOIUrl":"https://doi.org/10.22397/wlri.2022.38.3.3","url":null,"abstract":"Appeals Suit and Constitutional Complaint is known as separate systems in which different judicial bodies(General courts and the Constitutional courts) have jurisdiction with different requirements, procedures, effects, and functions. However, both systems have important commonalities in terms of the judicial system for controlling the exercise of governmental power and relieving the rights of people. They currently form the centerpiece of the judicial remedies in public law. Therefore, understanding the relationship between the two systems and examining the boundaries has become a subject of continuous interest in the public law academia. Recently, such discussion has drawn more attention as the general courts actively expanded the category of appeals suit, driven by various social changes including competition with the constitutional court. The consideration on the inclusion of the subject of appeals suit and constitutional complaint is regarded as an essential topic of discussion, being a reference point for establishing the relationship and boundary between the two systems. \u0000This study aimed to examine the subjects of ‘appeals suit’ and ‘constitutional complaints' based on the awareness of the problem of establishing the relationship between ‘appeals suit’ and ‘constitutional complaint’. ‘Disposition’, which is the subject of appeals suit, and ‘exercise or non-exercise of public power’, which is the subject of constitutional complaints, were examined with consideration of the correlationship and interoperability between the two. The underlying tendency of the general courts to widely acknowledge the range of disposition has also affected the subject of constitutional complaints that are normatively interoperated, which resultantly caused significant changes in the overall judicial remedy system in the event of a violation of the people's public legal rights by the action of public power. The efforts of the general courts and the Constitutional Court are required to establish a public legal remedies system to guarantee the maximum extent of public legal remedies.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"1 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":"131296811","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.2022.38.3.77
J. Lim
Since the Supreme Court's conviction on collateral type Leveraged Buy-Out in 2010, There has been much debate about criminal sanctions over borrowing. LBO, a financial method of borrowing money from outside, has two aspects. One is to increase the efficiency of the target company's operation, and the other is that the buyer does not bear the risk arising from M&A process because the acquisition fund of the company's acquirer is transferred to the target company. In response, LBO is a simple financial technique that raises acquisition funds, and it is argued that it is not desirable to impose criminal sanctions to ensure management's creative activities because the risks arising in the process are general risks accompanying corporate activities. However, the core of criminal punishment for LBO is not the illegality of financial techniques that acquire and merge companies with other people's capital, but that it cannot be allowed to transfer loan to Target company in the M&A process. On the other hand, it is not reasonable to apply the crime of breach based on the trust relationship between the modern monarch and the lord to today's management activities. In addition, it is difficult to function as an entrepreneur's norm because the constituent requirements of the crime of breach are unclear. And management is bound to be very adventurous, but it is not reasonable to punish it criminally. However, while the crime of breach is applied to individual transactions, it is not equal to deny the crime of breach only for management activities. Breach is an efficient means in that it requires minimum ethics and order in company management. In addition, there is no reason to deny the application of breach of trust to LBO, considering that standards have been established to limit the constitutional requirements for breach of trust. The precedent also takes the position that whether or not LBO is guilty of breach of trust should be judged individually depending on whether the act meets the constituent requirements of breach of trust in the M&A process. However, in the judgment of LBO's breach of trust, the punishment is determined based on whether the company is damaged or not without a specific judgment on the violation of duty of care by management or intention. In other words, breach of trust is judged based on whether profits to offset losses are provided to the target company. There is a risk that this will not be interpreted as a crime without damage to the company. Therefore, it is desirable to judge the punishment for LBO in detail in connection with the constituent requirements of the crime of breach.
{"title":"A Study on Leverage Buyout and Business Judgment Rule","authors":"J. Lim","doi":"10.22397/wlri.2022.38.3.77","DOIUrl":"https://doi.org/10.22397/wlri.2022.38.3.77","url":null,"abstract":"Since the Supreme Court's conviction on collateral type Leveraged Buy-Out in 2010, There has been much debate about criminal sanctions over borrowing. \u0000LBO, a financial method of borrowing money from outside, has two aspects. One is to increase the efficiency of the target company's operation, and the other is that the buyer does not bear the risk arising from M&A process because the acquisition fund of the company's acquirer is transferred to the target company. \u0000In response, LBO is a simple financial technique that raises acquisition funds, and it is argued that it is not desirable to impose criminal sanctions to ensure management's creative activities because the risks arising in the process are general risks accompanying corporate activities. \u0000However, the core of criminal punishment for LBO is not the illegality of financial techniques that acquire and merge companies with other people's capital, but that it cannot be allowed to transfer loan to Target company in the M&A process. \u0000On the other hand, it is not reasonable to apply the crime of breach based on the trust relationship between the modern monarch and the lord to today's management activities. In addition, it is difficult to function as an entrepreneur's norm because the constituent requirements of the crime of breach are unclear. And management is bound to be very adventurous, but it is not reasonable to punish it criminally. \u0000However, while the crime of breach is applied to individual transactions, it is not equal to deny the crime of breach only for management activities. Breach is an efficient means in that it requires minimum ethics and order in company management. In addition, there is no reason to deny the application of breach of trust to LBO, considering that standards have been established to limit the constitutional requirements for breach of trust. \u0000The precedent also takes the position that whether or not LBO is guilty of breach of trust should be judged individually depending on whether the act meets the constituent requirements of breach of trust in the M&A process. \u0000However, in the judgment of LBO's breach of trust, the punishment is determined based on whether the company is damaged or not without a specific judgment on the violation of duty of care by management or intention. In other words, breach of trust is judged based on whether profits to offset losses are provided to the target company. There is a risk that this will not be interpreted as a crime without damage to the company. Therefore, it is desirable to judge the punishment for LBO in detail in connection with the constituent requirements of the crime of breach.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"196 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":"122060068","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}
Sexual differentiation disease is the abnormal condition in development situation of sexual differentiation which is the basis of gender determination. This thesis reviewed for the person born with this disease to enable normal growth without emotional disorders and inferiority complex under the system of male or female choice. The points are summarized as follows. First, it is about the malpractice of medical operation for gender confirmation. Malpractice cannot be admitted because the medical operation for gender confirmation of the son was suitable medical level at that time. Second, it is about the relation with the guarantee of gender determination of the son. About this, all unnecessary surgical operations should be postponed until the time when the son becomes mature and decides for himself. In addition, the doctor has the obligation to provide all information to the person with parental rights when the doctor is going to perform the gender confirmation operation on the patient with sexual differentiation disease. Especially, if the gender confirmation operation is not an emergency, the doctor should explain to the person with parental rights, thus the person with parental rights should not be misunderstood as emergency situation and not to perform early gender confirmation operation. Furthermore, the doctor should explain the side effect that the newborn baby can lose fertility through the gender confirmation operation. That is an important matter about basic human right to body, so if these information were not provided, it is against informed consent. Even in case the patient with sexual differentiation disease can live as male or female either, the son should be able to decide his gender as best interest not facing identity problem when he grow up. Third, it is about the birth registration of the person with sexual differentiation disease. About this, like family registration practice in Japan, birth registration should be reported in an undetermined state for happiness of the son, and the irreversible treatment like genital organ removal should be prohibited until the son can decide for himself. In addition, it is appropriate for the son to decide his gender and complete family relation register subsequently after adolescence appearing second sexual characteristics through sexual differentiation of brain. Fourth, it is about the decision criteria of gender correction to sexual differentiation disease. Recently, as the decision criteria, not only sex chromosome as the sole absolute criteria but also cause of abnormality, condition of internal and external genital organs, composition of sex chromosome, surgical operation possibility of external genital organs and prediction of future sexual function should be considered, and simultaneously, it also should be considered which gender would secure for his happy life, and then the doctor shall select the gender to perform operational treatment.
{"title":"Legal Issues About Sexual Differentiation Disease","authors":"Young-min Song","doi":"10.22397/bml.2022.27.91","DOIUrl":"https://doi.org/10.22397/bml.2022.27.91","url":null,"abstract":"Sexual differentiation disease is the abnormal condition in development situation of sexual differentiation which is the basis of gender determination. \u0000This thesis reviewed for the person born with this disease to enable normal growth without emotional disorders and inferiority complex under the system of male or female choice. \u0000The points are summarized as follows. First, it is about the malpractice of medical operation for gender confirmation. Malpractice cannot be admitted because the medical operation for gender confirmation of the son was suitable medical level at that time. \u0000Second, it is about the relation with the guarantee of gender determination of the son. About this, all unnecessary surgical operations should be postponed until the time when the son becomes mature and decides for himself. \u0000In addition, the doctor has the obligation to provide all information to the person with parental rights when the doctor is going to perform the gender confirmation operation on the patient with sexual differentiation disease. Especially, if the gender confirmation operation is not an emergency, the doctor should explain to the person with parental rights, thus the person with parental rights should not be misunderstood as emergency situation and not to perform early gender confirmation operation. \u0000Furthermore, the doctor should explain the side effect that the newborn baby can lose fertility through the gender confirmation operation. That is an important matter about basic human right to body, so if these information were not provided, it is against informed consent. Even in case the patient with sexual differentiation disease can live as male or female either, the son should be able to decide his gender as best interest not facing identity problem when he grow up. \u0000Third, it is about the birth registration of the person with sexual differentiation disease. About this, like family registration practice in Japan, birth registration should be reported in an undetermined state for happiness of the son, and the irreversible treatment like genital organ removal should be prohibited until the son can decide for himself. In addition, it is appropriate for the son to decide his gender and complete family relation register subsequently after adolescence appearing second sexual characteristics through sexual differentiation of brain. \u0000Fourth, it is about the decision criteria of gender correction to sexual differentiation disease. Recently, as the decision criteria, not only sex chromosome as the sole absolute criteria but also cause of abnormality, condition of internal and external genital organs, composition of sex chromosome, surgical operation possibility of external genital organs and prediction of future sexual function should be considered, and simultaneously, it also should be considered which gender would secure for his happy life, and then the doctor shall select the gender to perform operational treatment.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"51 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134245928","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 : 2022-06-30DOI: 10.22397/wlri.2022.38.2.79
Tae-Soo Kim
In order to prevent accidents caused by drinking on the surface of the water, the Maritime Safety Act prohibits drunk driving and stipulates criminal punishment in case of violation. However, the Maritime Safety Act stipulates that ships subject to drunk driving are referred to as ships under the Ship Staff Act, the Ship Safety Act and the Fishing Ship Act are referred to as ships, and the Maritime Safety Act again stipulates that some of these ships are added or excluded. The reason for this complexity is that the Maritime Safety Act stipulates that ships subject to drunk driving are 'vessels under the Ship Staff Act'. This is because the Ship Staff Act is a law on ship employees, so ships that cannot be boarded by ship employees are not subject to the Act. Therefore, the best way would be to specify the standards for ships that are drunk driving in the Maritime Safety Act. As a way, it is considered reasonable to judge the standard for punishing drunk driving while using the concept of ships under the Maritime Safety Act based on whether or not to use power, not the total tonnage. This is because prohibiting drunk driving requires prompt action when a risk occurs during ship operation while drunk. In other words, alcohol degrades a person's ability to act and does not operate the machine properly, resulting in a high risk of accidents. Therefore, I would like to propose to use the standard of punishment based on whether or not to use power, not the total tonnage. If this revision is made, not only start-up ships but also ships subject to drunk driving crimes can be punished for drunk driving regardless of nationality. Moreover, even if the Ship Staff Act, the Ship Safety Act, and the Fishing Boat Act are revised, the scope of ships subject to drunk driving is not affected, and the scope of ships or punishment regulations may be revised independently.
{"title":"Some Problems and Revision Directions of Ships Subject to Drunk Driving under the Maritime Safety Act","authors":"Tae-Soo Kim","doi":"10.22397/wlri.2022.38.2.79","DOIUrl":"https://doi.org/10.22397/wlri.2022.38.2.79","url":null,"abstract":"In order to prevent accidents caused by drinking on the surface of the water, the Maritime Safety Act prohibits drunk driving and stipulates criminal punishment in case of violation. However, the Maritime Safety Act stipulates that ships subject to drunk driving are referred to as ships under the Ship Staff Act, the Ship Safety Act and the Fishing Ship Act are referred to as ships, and the Maritime Safety Act again stipulates that some of these ships are added or excluded. \u0000The reason for this complexity is that the Maritime Safety Act stipulates that ships subject to drunk driving are 'vessels under the Ship Staff Act'. This is because the Ship Staff Act is a law on ship employees, so ships that cannot be boarded by ship employees are not subject to the Act. \u0000Therefore, the best way would be to specify the standards for ships that are drunk driving in the Maritime Safety Act. As a way, it is considered reasonable to judge the standard for punishing drunk driving while using the concept of ships under the Maritime Safety Act based on whether or not to use power, not the total tonnage. This is because prohibiting drunk driving requires prompt action when a risk occurs during ship operation while drunk. In other words, alcohol degrades a person's ability to act and does not operate the machine properly, resulting in a high risk of accidents. Therefore, I would like to propose to use the standard of punishment based on whether or not to use power, not the total tonnage. \u0000If this revision is made, not only start-up ships but also ships subject to drunk driving crimes can be punished for drunk driving regardless of nationality. Moreover, even if the Ship Staff Act, the Ship Safety Act, and the Fishing Boat Act are revised, the scope of ships subject to drunk driving is not affected, and the scope of ships or punishment regulations may be revised independently.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127705537","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 : 2022-06-30DOI: 10.22397/wlri.2022.38.2.59
Hwa-jin Ryu
In recent years, there have been a number of crimes that attract investors by creating false cryptocurrency exchanges or by falsely manipulating transaction records on cryptocurrency trading sites in a situation where investment in cryptocurrency is hot. In relation to this record manipulation, the Supreme Court recently issued a decision on the concept of 'falsification' of electronic records, and here again, the opinions of judges were divided. In this study, first of all, the purpose and logic of the majority opinion and the opposition opinion of the Supreme Court's sentence of 2019Do11294 are analyzed and reviewed. The main issue of the case is whether the act of generating electronic records contrary to the will of the system installer or operator by abusing its authority constitutes a "falsification" of private electromagnetic records prescribed in Article 232-2 of the Criminal Act. In response, the majority opinion said, "In relation to the subject who installs and operates the system, a person who is not authorized to generate electronic records or inputs unit information necessary for the generation of electronic records, and a person who is authorized to enter false information in the scope of their duties is included in Article 227-2 of the Criminal Act. The above legal principles also apply to "falsification" defined as the aspect of the act in the crime of “falsification or alteration of private electromagnetic records” under Article 232-2 of the Criminal Act. The Supreme Court's legal principles on such forgery are valid and can be applied in this case." In response, the dissenting opinion is that "the Defendants' actions do not constitute a 'falsification' prescribed in Article 232-2 of the Criminal Act." Nevertheless, the lower court's judgment that the Defendants' actions constituted a "falsification" erred by misunderstanding the legal principles on the meaning of "falsification" as prescribed in Article 232-2 of the Criminal Act. Therefore, the judgment of the lower court regarding this part should be reversed and the case should be remanded to the lower court to hear and judge again." It has the opposite view of judging the Defendant's act as innocent by the majority opinion. The crime of falsification of electronic records is an area that requires an independent interpretation different from the crime of documents regarding the requirements for establishment of electronic records, falsification, and other personality of electronic records. In this regard, the interpretation of previous studies on the crime of falsification of electronic records is reviewed and analyzed. In addition, the concept of reasonable 'falsification' is derived by reflecting the legislator's purpose of the concept of 'falsification' through the 1995 criminal law revision data. Based on this, the logical basis of each of the Supreme Court's majority and dissenting opinions is analyzed and critically reviewed to establish a valid concept of 'fake', an
{"title":"The Meaning of ‘Falsification’ of Electromagnetic Records","authors":"Hwa-jin Ryu","doi":"10.22397/wlri.2022.38.2.59","DOIUrl":"https://doi.org/10.22397/wlri.2022.38.2.59","url":null,"abstract":"In recent years, there have been a number of crimes that attract investors by creating false cryptocurrency exchanges or by falsely manipulating transaction records on cryptocurrency trading sites in a situation where investment in cryptocurrency is hot. In relation to this record manipulation, the Supreme Court recently issued a decision on the concept of 'falsification' of electronic records, and here again, the opinions of judges were divided. \u0000In this study, first of all, the purpose and logic of the majority opinion and the opposition opinion of the Supreme Court's sentence of 2019Do11294 are analyzed and reviewed. The main issue of the case is whether the act of generating electronic records contrary to the will of the system installer or operator by abusing its authority constitutes a \"falsification\" of private electromagnetic records prescribed in Article 232-2 of the Criminal Act. \u0000In response, the majority opinion said, \"In relation to the subject who installs and operates the system, a person who is not authorized to generate electronic records or inputs unit information necessary for the generation of electronic records, and a person who is authorized to enter false information in the scope of their duties is included in Article 227-2 of the Criminal Act. The above legal principles also apply to \"falsification\" defined as the aspect of the act in the crime of “falsification or alteration of private electromagnetic records” under Article 232-2 of the Criminal Act. The Supreme Court's legal principles on such forgery are valid and can be applied in this case.\" In response, the dissenting opinion is that \"the Defendants' actions do not constitute a 'falsification' prescribed in Article 232-2 of the Criminal Act.\" Nevertheless, the lower court's judgment that the Defendants' actions constituted a \"falsification\" erred by misunderstanding the legal principles on the meaning of \"falsification\" as prescribed in Article 232-2 of the Criminal Act. Therefore, the judgment of the lower court regarding this part should be reversed and the case should be remanded to the lower court to hear and judge again.\" It has the opposite view of judging the Defendant's act as innocent by the majority opinion. \u0000The crime of falsification of electronic records is an area that requires an independent interpretation different from the crime of documents regarding the requirements for establishment of electronic records, falsification, and other personality of electronic records. In this regard, the interpretation of previous studies on the crime of falsification of electronic records is reviewed and analyzed. In addition, the concept of reasonable 'falsification' is derived by reflecting the legislator's purpose of the concept of 'falsification' through the 1995 criminal law revision data. Based on this, the logical basis of each of the Supreme Court's majority and dissenting opinions is analyzed and critically reviewed to establish a valid concept of 'fake', an","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127542513","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 : 2022-06-30DOI: 10.22397/wlri.2022.38.2.129
Daesik Kim
Companies should change their working hours according to social trends or operating conditions. In the case of the introduction of the flexible work system in relation to the change of employment rules, it can be seen that the convenience of workers is centered on the purpose, so the introduction or change of the shift system is considered a disadvantage. Even if looking at the provisions of Article 93 Subparagraph 1 of the Labor Standards Act, the working hours shall be specified in the employment rules, and if changed, the procedures for changing the employment rules shall be followed. Here, the question is whether the change in working hours will correspond to a change in disadvantages in employment rules. When determining whether a change in employment rules is disadvantageous to workers, the decision should be made by examining the existing interests. If the change can be objectively revealed and evaluated quantitatively, it will be easy to judge whether it is disadvantageous, but it is difficult to judge if the objective factors are not well revealed on the surface and conflict with the subjective interests of workers. It can be seen that the latter is the case of a change in working hours and a collision of daily disadvantages. In the latter case, it is inevitable to examine the impact of workers due to changes in employment rules, and the social experience of COVID-19 infection showed that they should have a new perspective on changes in employment rules such as changes in working hours. At this point, there was a Supreme Court ruling on the change of working hours. On February 13, 2017, the Korea Broadcasting Corporation reorganized its work style for nine regional general offices and nine regional countries nationwide. The main point is to change the group 3 shift, which was the existing central form of work, to a mixture of parallax work, shift work and ordinary work. The workers argued that the reorganization constitutes a disadvantage change in employment rules, and that it is ineffective because it is unilaterally implemented by the Defendant without any agreement with the trade union under a collective agreement signed in 2012. The corporation argued that the reorganization of the work type is only a simple work order and does not constitute an employment rule, so there is no need to agree with the labor union, and even in the employment rule, it is not a disadvantage change or a reasonable level. The target judgment showed consistent judgment on the same criteria as the previous judgment method in that it was comprehensively judged by comparing various factors of changed working conditions. However, it seems that the situation in which the workplace is scattered locally across the country and the situation in charge of different tasks were not judged in detail. According to previous laws, changes in employment rules have been judged by treating them as disadvantageous changes between workers, but in the case, it was not a disadv
{"title":"Time flexibility and Change the Disadvantage of Employment Rules","authors":"Daesik Kim","doi":"10.22397/wlri.2022.38.2.129","DOIUrl":"https://doi.org/10.22397/wlri.2022.38.2.129","url":null,"abstract":"Companies should change their working hours according to social trends or operating conditions. In the case of the introduction of the flexible work system in relation to the change of employment rules, it can be seen that the convenience of workers is centered on the purpose, so the introduction or change of the shift system is considered a disadvantage. Even if looking at the provisions of Article 93 Subparagraph 1 of the Labor Standards Act, the working hours shall be specified in the employment rules, and if changed, the procedures for changing the employment rules shall be followed. Here, the question is whether the change in working hours will correspond to a change in disadvantages in employment rules. When determining whether a change in employment rules is disadvantageous to workers, the decision should be made by examining the existing interests. If the change can be objectively revealed and evaluated quantitatively, it will be easy to judge whether it is disadvantageous, but it is difficult to judge if the objective factors are not well revealed on the surface and conflict with the subjective interests of workers. It can be seen that the latter is the case of a change in working hours and a collision of daily disadvantages. In the latter case, it is inevitable to examine the impact of workers due to changes in employment rules, and the social experience of COVID-19 infection showed that they should have a new perspective on changes in employment rules such as changes in working hours. \u0000At this point, there was a Supreme Court ruling on the change of working hours. On February 13, 2017, the Korea Broadcasting Corporation reorganized its work style for nine regional general offices and nine regional countries nationwide. The main point is to change the group 3 shift, which was the existing central form of work, to a mixture of parallax work, shift work and ordinary work. The workers argued that the reorganization constitutes a disadvantage change in employment rules, and that it is ineffective because it is unilaterally implemented by the Defendant without any agreement with the trade union under a collective agreement signed in 2012. The corporation argued that the reorganization of the work type is only a simple work order and does not constitute an employment rule, so there is no need to agree with the labor union, and even in the employment rule, it is not a disadvantage change or a reasonable level. \u0000The target judgment showed consistent judgment on the same criteria as the previous judgment method in that it was comprehensively judged by comparing various factors of changed working conditions. However, it seems that the situation in which the workplace is scattered locally across the country and the situation in charge of different tasks were not judged in detail. According to previous laws, changes in employment rules have been judged by treating them as disadvantageous changes between workers, but in the case, it was not a disadv","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"80 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133511398","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 : 2022-06-30DOI: 10.22397/wlri.2022.38.2.3
Hye-kyung Kim
Since the establishment and application of the sentencing guidelines for murder crimes began in 2009, a total of 44 sentencing standards for crime types have been established or revised by the 8th Sentencing Committee over the past 13 years. And more than 90% of cases that are already subject to trial have sentencing standards. Now, it is necessary to explore the direction of the sentencing committee in the future and pursue righteous punishment and fair sentencing. Here is aimed to review some issues that need to be improved regarding the 'reasonable sentencing guideline' necessary to form a fair future of justice. First of all, based on the contents of the analysis of the application status of the sentencing guidelines, it is intended to analyze how the sentencing factors are actually affecting the application of the sentencing guidelines. Next will discuss whether the sentencing criteria should bind the court's judgment. This is because if the sentencing guideline does not bind the court, and it becomes a judicial practice to deviate from the sentencing guideline, it may not be necessary to establish the sentencing guidelines. In addition, the meaning of judges complying with the sentencing guidelines can be a criterion for evaluating the public's trust in judicial law. In addition, it is necessary to verify the validity of the grounds for considering probation. Until now, among the special sentencing factors, the mitigation factor has been recognized as a positive factor for probation, and the aggravated factor has been cross-applied as a negative factor. However, it is necessary to determine whether such cross-application is reasonable. This is also a matter of connection between the two. In addition, the possibility of establishing the selection criteria for imprisonment and fines should be studied. The criminal law selectively stipulates imprisonment and fines for most crimes. Therefore, it will be necessary to objectively ensure the predictability of what punishment criminals will be imposed. Finally, we will look at the problem of harmony with the day fines system. This is because it is difficult to harmonize with the day fines system that converts the amount of illegality into days if the upper and lower limits of fines are set while creating the penalty standard for fines. Through these studies, it is necessary to establish righteous punishment and fair sentencing, and to ensure the people's judicial trust through those.
{"title":"Improvement of sentencing Guidelines","authors":"Hye-kyung Kim","doi":"10.22397/wlri.2022.38.2.3","DOIUrl":"https://doi.org/10.22397/wlri.2022.38.2.3","url":null,"abstract":"Since the establishment and application of the sentencing guidelines for murder crimes began in 2009, a total of 44 sentencing standards for crime types have been established or revised by the 8th Sentencing Committee over the past 13 years. And more than 90% of cases that are already subject to trial have sentencing standards. Now, it is necessary to explore the direction of the sentencing committee in the future and pursue righteous punishment and fair sentencing. \u0000Here is aimed to review some issues that need to be improved regarding the 'reasonable sentencing guideline' necessary to form a fair future of justice. First of all, based on the contents of the analysis of the application status of the sentencing guidelines, it is intended to analyze how the sentencing factors are actually affecting the application of the sentencing guidelines. Next will discuss whether the sentencing criteria should bind the court's judgment. This is because if the sentencing guideline does not bind the court, and it becomes a judicial practice to deviate from the sentencing guideline, it may not be necessary to establish the sentencing guidelines. In addition, the meaning of judges complying with the sentencing guidelines can be a criterion for evaluating the public's trust in judicial law. \u0000In addition, it is necessary to verify the validity of the grounds for considering probation. Until now, among the special sentencing factors, the mitigation factor has been recognized as a positive factor for probation, and the aggravated factor has been cross-applied as a negative factor. However, it is necessary to determine whether such cross-application is reasonable. This is also a matter of connection between the two. In addition, the possibility of establishing the selection criteria for imprisonment and fines should be studied. The criminal law selectively stipulates imprisonment and fines for most crimes. Therefore, it will be necessary to objectively ensure the predictability of what punishment criminals will be imposed. \u0000Finally, we will look at the problem of harmony with the day fines system. This is because it is difficult to harmonize with the day fines system that converts the amount of illegality into days if the upper and lower limits of fines are set while creating the penalty standard for fines. \u0000Through these studies, it is necessary to establish righteous punishment and fair sentencing, and to ensure the people's judicial trust through those.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128729492","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 : 2022-06-30DOI: 10.22397/bml.2022.27.149
Can Luo, Shiwen Liu, Yixin Wang
Since artificial intelligence was proposed in the last century, the technological advancement has been promoting the development of AI doctor, which has already entered the medical life in China. As AI doctors are based on elements such as big data and evolutionary algorithms, they have new knowledge learning capabilities and massive information processing capabilities that far exceed those of human doctors, and can provide patients with more efficient and high-quality medical services. Its accuracy in diagnosing and treating diseases is also much higher than that of human doctors. Thus, AI doctors have bright future in the entire life cycle of medical activities such as medical consultation, intelligent diagnosis, intelligent treatment, and health management. At the same time, the continuous medical damages of AI doctors used in the market indicate that it has a huge potential risk, for the existence of technical black boxes may cause irreversible damage to the personal health of patients. As a financial way to protect victims and diversify social risks, medical liability insurance plays a vital role in promoting the development of new technologies and solving related medical damage. However, our nation's medical liability insurance system is facing difficulties and is currently unable to perform its due function. On the one hand, insufficient compulsory medical liability insurance has led to insufficient coverage, the coverage of insurance is too narrow, and the existing problems of imperfect supporting systems have not yet been resolved, and medical liability insurance has its own development difficulties; More importantly, the participation of AI doctors has a huge impact on the doctor's fault identification and traditional fault liability, and the relationship between the relevant insurance systems is also quite chaotic. Artificial intelligence poses a challenge to the current medical liability insurance legal system, and it is urgent to improve and reform medical liability insurance. In this regard, in the future medical liability insurance, these existing and new problems should be fully considered. The key points are the identification of fault, the introduction of no-fault compensation, and the linking to related insurance systems. This is the main direction for the improvement of the legal system in the future. Specifically, in the future, the improvement of our country's medical liability insurance legal system should conform to the technological development of AI doctors, improve the traditional fault identification, introduce no-fault compensation to reform the traditional principle of single fault, and clarify the relationship between various insurances to relieve the parties. 自上世纪人工智能被提出以来，每一次的技术进步都推动着一波人工智能医生的发展，人工智能医生早已进入中国的医疗生活中,正在广泛应用于医疗活动。基于人工智能医生以大数据和演进算法等要素为基础，其具有远超人类医生的新知识学习能力和海量的信息处理能力，可以更高效更优质地为患者提供医疗服务。其诊断治疗疾病的准确率远高于人类医生，人工智能医生在医疗咨询，智能诊断，智能治疗，健康管理等医疗活动全生命周期都具有光明的发展前景。与此同时，市场上应用的人工智能医生产品不断爆出的医疗损害表明，它具有巨大的潜在风险，由于技术黑箱的存
{"title":"Legal System for Medical Liability Insurance Relevant to AI Doctor in China","authors":"Can Luo, Shiwen Liu, Yixin Wang","doi":"10.22397/bml.2022.27.149","DOIUrl":"https://doi.org/10.22397/bml.2022.27.149","url":null,"abstract":"Since artificial intelligence was proposed in the last century, the technological advancement has been promoting the development of AI doctor, which has already entered the medical life in China. As AI doctors are based on elements such as big data and evolutionary algorithms, they have new knowledge learning capabilities and massive information processing capabilities that far exceed those of human doctors, and can provide patients with more efficient and high-quality medical services. Its accuracy in diagnosing and treating diseases is also much higher than that of human doctors. Thus, AI doctors have bright future in the entire life cycle of medical activities such as medical consultation, intelligent diagnosis, intelligent treatment, and health management. At the same time, the continuous medical damages of AI doctors used in the market indicate that it has a huge potential risk, for the existence of technical black boxes may cause irreversible damage to the personal health of patients. As a financial way to protect victims and diversify social risks, medical liability insurance plays a vital role in promoting the development of new technologies and solving related medical damage. \u0000However, our nation's medical liability insurance system is facing difficulties and is currently unable to perform its due function. On the one hand, insufficient compulsory medical liability insurance has led to insufficient coverage, the coverage of insurance is too narrow, and the existing problems of imperfect supporting systems have not yet been resolved, and medical liability insurance has its own development difficulties; More importantly, the participation of AI doctors has a huge impact on the doctor's fault identification and traditional fault liability, and the relationship between the relevant insurance systems is also quite chaotic. Artificial intelligence poses a challenge to the current medical liability insurance legal system, and it is urgent to improve and reform medical liability insurance. In this regard, in the future medical liability insurance, these existing and new problems should be fully considered. The key points are the identification of fault, the introduction of no-fault compensation, and the linking to related insurance systems. This is the main direction for the improvement of the legal system in the future. Specifically, in the future, the improvement of our country's medical liability insurance legal system should conform to the technological development of AI doctors, improve the traditional fault identification, introduce no-fault compensation to reform the traditional principle of single fault, and clarify the relationship between various insurances to relieve the parties. \u0000 \u0000自上世纪人工智能被提出以来，每一次的技术进步都推动着一波人工智能医生的发展，人工智能医生早已进入中国的医疗生活中,正在广泛应用于医疗活动。基于人工智能医生以大数据和演进算法等要素为基础，其具有远超人类医生的新知识学习能力和海量的信息处理能力，可以更高效更优质地为患者提供医疗服务。其诊断治疗疾病的准确率远高于人类医生，人工智能医生在医疗咨询，智能诊断，智能治疗，健康管理等医疗活动全生命周期都具有光明的发展前景。与此同时，市场上应用的人工智能医生产品不断爆出的医疗损害表明，它具有巨大的潜在风险，由于技术黑箱的存","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"101 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115166877","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}
Two bills have recently been proposed at the Korean National Assembly to introduce data portability provisions to the Personal Information Protection Act. The two bills were largely modeled on Article 20 Right to Data Portability of European Union’s General Data Protection Regulation (“GDPR”). We argue that the proposed “one-size-fits-all” provisions are ill-suited to health data portability for a few reasons. First and foremost, the bills stop short of mandating interoperability of data being transferred, in a manner similar to the GDPR. Unlike in some other sectors, however, interoperability is critical in achieving ease of data transmission in health care, because health IT is highly fragmented with numerous vendors, each with their own data format. Secondly, the two bills exempt inferred data and derived data from data portability, also in a manner similar to the GDPR. While such exemption may be striking a balance between the interest of individuals and the interest of data controllers, it renders data portability almost valueless in the context of health care, where important data are usually inferred data and derived data created by health providers. Lastly, an exemption from data portability for small businesses will be at odds with health care, in which primary care clinics are inevitably “small businesses”. These limitations found in the data portability bills are not surprising, in light of the core objective of their model, Article 20 of the GDPR, which was to promote competition by helping users retrieve their data held by dominant service providers. Hence, we argue that a better approach to health data portability is to amend the Medical Service Act that already includes basic measures to facilitate data exchange between health providers. Although the Medical Service Act too has to be amended to implement health data portability in the scale already being implemented in other countries, it will not be limited by the need for universal applicability across different industries that the general, Personal Information Protection Act faces. Instead, more nuanced and sophisticated health data portability can be designed in the Medical Service Act that provides more clarity to complex legal issues unique to health data, such as interoperability, data scope, health information exchange and secondary use, to name a few.
{"title":"Designing Health Data Portability Under Korean Law","authors":"W. Lee, Hyun A Bae","doi":"10.22397/bml.2022.27.55","DOIUrl":"https://doi.org/10.22397/bml.2022.27.55","url":null,"abstract":"Two bills have recently been proposed at the Korean National Assembly to introduce data portability provisions to the Personal Information Protection Act. The two bills were largely modeled on Article 20 Right to Data Portability of European Union’s General Data Protection Regulation (“GDPR”). \u0000We argue that the proposed “one-size-fits-all” provisions are ill-suited to health data portability for a few reasons. First and foremost, the bills stop short of mandating interoperability of data being transferred, in a manner similar to the GDPR. Unlike in some other sectors, however, interoperability is critical in achieving ease of data transmission in health care, because health IT is highly fragmented with numerous vendors, each with their own data format. Secondly, the two bills exempt inferred data and derived data from data portability, also in a manner similar to the GDPR. While such exemption may be striking a balance between the interest of individuals and the interest of data controllers, it renders data portability almost valueless in the context of health care, where important data are usually inferred data and derived data created by health providers. Lastly, an exemption from data portability for small businesses will be at odds with health care, in which primary care clinics are inevitably “small businesses”. These limitations found in the data portability bills are not surprising, in light of the core objective of their model, Article 20 of the GDPR, which was to promote competition by helping users retrieve their data held by dominant service providers. \u0000Hence, we argue that a better approach to health data portability is to amend the Medical Service Act that already includes basic measures to facilitate data exchange between health providers. Although the Medical Service Act too has to be amended to implement health data portability in the scale already being implemented in other countries, it will not be limited by the need for universal applicability across different industries that the general, Personal Information Protection Act faces. Instead, more nuanced and sophisticated health data portability can be designed in the Medical Service Act that provides more clarity to complex legal issues unique to health data, such as interoperability, data scope, health information exchange and secondary use, to name a few.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"85 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124292491","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 : 2022-06-30DOI: 10.22397/wlri.2022.38.2.187
Xiao Wang
To achieve Pareto optimality and substantive fairness, the practice of substantive consolidation in bankruptcy reorganization in China is needed. However, after analyzing the legal documents and judicial cases in the past three years, it can be seen that there are problems in the application, such as cognitive dislocation and theoretical conflicts. Moreover, there are deficiencies in the standard for judging whether the proceeding is applicable or not, such as vague meaning and unclear relationship, and there is a relative lack of systematic thinking. Therefore, on the one hand, a clear conceptual distinction should be made between the substantive consolidation from the perspective of bankruptcy law and the corporate merger in the field of company law. Besides, the contradictions between substantive consolidation and the traditional theoretical principles like bankruptcy petition doctrine, creditor’s reliance interests, and corporate personality independence should be resolved through methods which contain interest measurement and perspective shifting. On the other hand, it is necessary to construct a standard system with objective mode and subjective mode for determining whether the proceeding should be applied, so as to respond to different judicial needs. Furthermore, the objective mode should be detailed and strict, and it can be refined into three parts: formal requirement, necessity requirement and feasibility requirement. The subjective mode is based on the unanimous and real volition of the relevant stakeholders, which fully respects the freedom of the parties to dispose of their rights.
{"title":"Theoretical discussion and standard reconstruction of substantive consolidation in bankruptcy reorganization","authors":"Xiao Wang","doi":"10.22397/wlri.2022.38.2.187","DOIUrl":"https://doi.org/10.22397/wlri.2022.38.2.187","url":null,"abstract":"To achieve Pareto optimality and substantive fairness, the practice of substantive consolidation in bankruptcy reorganization in China is needed. However, after analyzing the legal documents and judicial cases in the past three years, it can be seen that there are problems in the application, such as cognitive dislocation and theoretical conflicts. Moreover, there are deficiencies in the standard for judging whether the proceeding is applicable or not, such as vague meaning and unclear relationship, and there is a relative lack of systematic thinking. Therefore, on the one hand, a clear conceptual distinction should be made between the substantive consolidation from the perspective of bankruptcy law and the corporate merger in the field of company law. Besides, the contradictions between substantive consolidation and the traditional theoretical principles like bankruptcy petition doctrine, creditor’s reliance interests, and corporate personality independence should be resolved through methods which contain interest measurement and perspective shifting. On the other hand, it is necessary to construct a standard system with objective mode and subjective mode for determining whether the proceeding should be applied, so as to respond to different judicial needs. Furthermore, the objective mode should be detailed and strict, and it can be refined into three parts: formal requirement, necessity requirement and feasibility requirement. The subjective mode is based on the unanimous and real volition of the relevant stakeholders, which fully respects the freedom of the parties to dispose of their rights.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125379975","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：