Every year, South Korean medical field is undergoing significant shortage of residents, especially in the field of surgery. Therefore, hospitals hire physician assistants(PA) to cover for short-staffed physicians and increase the quality of medical care. PA’s perform medical checkups, surgery assistance, prescription, anesthesia, and directing nurses to aid physicians. Foreign nations like the United States and Canada produce highly skilled PA’s via official PA training programs and standardized license exams, and PA’s are allowed to perform limited medical practice. However in South Korea, lack of legal basis for PA’s eligibility, training program, and range of allowed medical practice causes social problems like unlicensed medical care and medical accident. South Korea’s objective for PA program is significantly different from that of the United States and Canada. In those countries, purpose of PA is to aid and cover for primary care, whereas South Korean PA program is used for remedying surgeon shortage problem and hospitals’ business purposes, such as cost reduction and treatment time saving. This study criticizes implementing a new occupational field based on foreign PA policy will cause numerous problems and limits due to the difference of purpose. Therefore, establishing a new management& operating system for medical support persons considering patient safety, supply of health medical manpower, medical field requirements and characteristics of different medical institutions will be a realistic solution. Tasks for PA’s should be categorized and trained accordingly so that PA’s quality increases. Also, appropriate reward system, athority, and eligibility of PA’s are required according to their experience and ability. Registered nurse(RN) in South Korea is recognized as professional medical personnels that went through systematic education. This study suggests improvising RN program and utilizing it will be a efficient and realistic alternative solution for this problem.
{"title":"A study on the training and legalization of physician assistants","authors":"L. Ahn","doi":"10.22397/bml.2022.27.5","DOIUrl":"https://doi.org/10.22397/bml.2022.27.5","url":null,"abstract":"Every year, South Korean medical field is undergoing significant shortage of residents, especially in the field of surgery. Therefore, hospitals hire physician assistants(PA) to cover for short-staffed physicians and increase the quality of medical care. PA’s perform medical checkups, surgery assistance, prescription, anesthesia, and directing nurses to aid physicians. Foreign nations like the United States and Canada produce highly skilled PA’s via official PA training programs and standardized license exams, and PA’s are allowed to perform limited medical practice. However in South Korea, lack of legal basis for PA’s eligibility, training program, and range of allowed medical practice causes social problems like unlicensed medical care and medical accident. South Korea’s objective for PA program is significantly different from that of the United States and Canada. In those countries, purpose of PA is to aid and cover for primary care, whereas South Korean PA program is used for remedying surgeon shortage problem and hospitals’ business purposes, such as cost reduction and treatment time saving. This study criticizes implementing a new occupational field based on foreign PA policy will cause numerous problems and limits due to the difference of purpose. Therefore, establishing a new management& operating system for medical support persons considering patient safety, supply of health medical manpower, medical field requirements and characteristics of different medical institutions will be a realistic solution. Tasks for PA’s should be categorized and trained accordingly so that PA’s quality increases. Also, appropriate reward system, athority, and eligibility of PA’s are required according to their experience and ability. Registered nurse(RN) in South Korea is recognized as professional medical personnels that went through systematic education. This study suggests improvising RN program and utilizing it will be a efficient and realistic alternative solution for this problem.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"32 10 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":"114220626","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.2022.27.177
Tae-Seok Hong
It would not be an exaggeration to say that medical accidents occur every day. Medical officials are complaining about the subject of criminal punishment for such medical accidents. Although it will be unfair in many ways from the perspective of the victim who suffered a medical accident, the increase in criminal punishment for medical accidents will be very burdensome for medical workers. Regarding the increase in criminal punishment for such medical accidents, the medical community continues to point out the unfairness. Regarding criminal punishment for such medical accidents, in Japan, there were also questions about the application of occupational negligence to doctors (the first leaflet of Article 211 of the Japanese Criminal Act) in the wake of the Fukushima Prefectural Ono Hospital incident in 2004. The main reasons for this are that criminal punishment is not necessarily effective in improving doctors' medical technology, securing medical safety, preventing recurrence, and shrinking medical practices due to the imposition of criminal punishment. Meanwhile, in Germany Jürgens is also pointing out the expansion of criminal punishment for medical personnel. Relief for crime victims is also possible by civil compensation and administrative punishment, but in terms of illegality and accountability, criminal trials should be made and appropriate punishment should be made. However, it seems necessary to consider the specificity of medical practice, consider the disadvantages of criminal punishment for medical personnel, and consider them in various aspects in relation to the scope of negligence. Therefore, in this paper, the contents of discussions in Germany and Japan regarding the limitation of criminal responsibility of doctors were reviewed, and the criteria for limiting criminal responsibility for reasonable medical personnel were reviewed.
{"title":"Limiting Criteria for Criminal Liability in Medical Negligence: Refer to the discussion between Germany and Japan","authors":"Tae-Seok Hong","doi":"10.22397/bml.2022.27.177","DOIUrl":"https://doi.org/10.22397/bml.2022.27.177","url":null,"abstract":"It would not be an exaggeration to say that medical accidents occur every day. Medical officials are complaining about the subject of criminal punishment for such medical accidents. Although it will be unfair in many ways from the perspective of the victim who suffered a medical accident, the increase in criminal punishment for medical accidents will be very burdensome for medical workers. Regarding the increase in criminal punishment for such medical accidents, the medical community continues to point out the unfairness. \u0000Regarding criminal punishment for such medical accidents, in Japan, there were also questions about the application of occupational negligence to doctors (the first leaflet of Article 211 of the Japanese Criminal Act) in the wake of the Fukushima Prefectural Ono Hospital incident in 2004. The main reasons for this are that criminal punishment is not necessarily effective in improving doctors' medical technology, securing medical safety, preventing recurrence, and shrinking medical practices due to the imposition of criminal punishment. \u0000Meanwhile, in Germany Jürgens is also pointing out the expansion of criminal punishment for medical personnel. Relief for crime victims is also possible by civil compensation and administrative punishment, but in terms of illegality and accountability, criminal trials should be made and appropriate punishment should be made. However, it seems necessary to consider the specificity of medical practice, consider the disadvantages of criminal punishment for medical personnel, and consider them in various aspects in relation to the scope of negligence. Therefore, in this paper, the contents of discussions in Germany and Japan regarding the limitation of criminal responsibility of doctors were reviewed, and the criteria for limiting criminal responsibility for reasonable medical personnel were reviewed.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"52 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":"120954132","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.2022.38.2.151
Hae Sung Lee
Switzerland guarantees a system that allows its people to express and validate their opinion on relevant laws through the submission of a referendum when deemed necessary. In 2021, both chambers (the National Council and the Council of States) imposed an obligation for streaming platforms to invest in local Swiss cinema. With this new law, not only video streaming service providers based in Switzerland but also those abroad would have to re-invest 4% of their gross revenues generated in Switzerland in Swiss independent film creation. In addition, the law introduced a quota system requiring at least 30% of the offered catalogue to be made up of European cinema productions. In May 2022, a referendum against this draft bill was initiated by the referendum committee due to consumer opposition As a result, more than half of the amendment voted in favour of the amendment, and the revised film law will come into force in 2024. In the recommendation, the referendum committee expresses its opinion against the law and stipulates whether it originally was the logic of regulatory approval by the regulators and against regulations imposed by consumers. As a result, consumers’ benefits and welfare, which remained up to now unclear, can be verified through actual cases, and the regulatory differences for the same service provider in Switzerland and in Korea can be highlighted. We examine the implications of such platform regulations by looking at Switzerland, which regulates the obligation to reinvest in the local film industry to protect cultural diversity and content comptetitiveness, and Korea, which requires the obligation to stabilize services for network quality.
{"title":"Switzerland’s referendum on «Lex Netflix» and its implications of the regulatory framework for OTT(Over-the-top) service providers","authors":"Hae Sung Lee","doi":"10.22397/wlri.2022.38.2.151","DOIUrl":"https://doi.org/10.22397/wlri.2022.38.2.151","url":null,"abstract":"Switzerland guarantees a system that allows its people to express and validate their opinion on relevant laws through the submission of a referendum when deemed necessary. In 2021, both chambers (the National Council and the Council of States) imposed an obligation for streaming platforms to invest in local Swiss cinema. With this new law, not only video streaming service providers based in Switzerland but also those abroad would have to re-invest 4% of their gross revenues generated in Switzerland in Swiss independent film creation. In addition, the law introduced a quota system requiring at least 30% of the offered catalogue to be made up of European cinema productions. \u0000In May 2022, a referendum against this draft bill was initiated by the referendum committee due to consumer opposition As a result, more than half of the amendment voted in favour of the amendment, and the revised film law will come into force in 2024. In the recommendation, the referendum committee expresses its opinion against the law and stipulates whether it originally was the logic of regulatory approval by the regulators and against regulations imposed by consumers. As a result, consumers’ benefits and welfare, which remained up to now unclear, can be verified through actual cases, and the regulatory differences for the same service provider in Switzerland and in Korea can be highlighted. We examine the implications of such platform regulations by looking at Switzerland, which regulates the obligation to reinvest in the local film industry to protect cultural diversity and content comptetitiveness, and Korea, which requires the obligation to stabilize services for network quality.","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":"130394174","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.2022.27.119
Kyoung-hee Baek, Yeonhwa Chang
The current 「Food Sanitation Act」 defines ‘food’ as any food except for those taken as medicine in Article 2, No. 1, and the Supreme Court of Korea said that ‘natural food’ as well as processed and cooked food are included in food. In addition, the Supreme Court recognized that the pharmacological function of rice, a natural food, existed in the case of selling the white rice product itself produced from the rice variety developed by domestic researchers by posting it on the Internet website. However, according to the current legislation in Korea, the labeling of ‘functionality’, which means to control nutrients for the structure and function of the human body or to obtain useful effects for health purposes such as physiological action, is limited to health functional foods and general foods. In the case of natural foods such as agricultural products and aquatic products, the functional labeling system is not adopted. In the case of Japan, in the case of natural foods such as agricultural products and aquatic products containing functional ingredients, if certain reporting requirements are met, a system that can be recognized as functional labeling food that can simply display functionality in the form of accepting a report from a producer was adopted since 2015. In Korea, in view of the confirmation of social beliefs through the judgment of the courts, the industrialization trend of natural foods according to the times, and the protection of consumers' right to know and health, there is a need of adopting a functional labeling system for natural foods to Korea as well.
{"title":"A Study on the adoption of a functional labeling system for natural foods","authors":"Kyoung-hee Baek, Yeonhwa Chang","doi":"10.22397/bml.2022.27.119","DOIUrl":"https://doi.org/10.22397/bml.2022.27.119","url":null,"abstract":"The current 「Food Sanitation Act」 defines ‘food’ as any food except for those taken as medicine in Article 2, No. 1, and the Supreme Court of Korea said that ‘natural food’ as well as processed and cooked food are included in food. In addition, the Supreme Court recognized that the pharmacological function of rice, a natural food, existed in the case of selling the white rice product itself produced from the rice variety developed by domestic researchers by posting it on the Internet website. \u0000However, according to the current legislation in Korea, the labeling of ‘functionality’, which means to control nutrients for the structure and function of the human body or to obtain useful effects for health purposes such as physiological action, is limited to health functional foods and general foods. In the case of natural foods such as agricultural products and aquatic products, the functional labeling system is not adopted. \u0000In the case of Japan, in the case of natural foods such as agricultural products and aquatic products containing functional ingredients, if certain reporting requirements are met, a system that can be recognized as functional labeling food that can simply display functionality in the form of accepting a report from a producer was adopted since 2015. \u0000In Korea, in view of the confirmation of social beliefs through the judgment of the courts, the industrialization trend of natural foods according to the times, and the protection of consumers' right to know and health, there is a need of adopting a functional labeling system for natural foods to Korea as well.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"95 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":"131777720","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.2022.38.2.169
Siyi Li
China's corporate regulations on repurchase and corporate gambling have undergone a transformation from invalid to effective. The gambling agreement takes the form of contract to construct the corporate governance structure, reconstructing the original risks, interests and control pattern of the company organization, and should be subject to the company's laws and regulations.The rule of "capital reduction first and then repurchase" established in the Nine Civil Minutes relies on the principle of differentiation to shift the focus of the judgment to the performance of the contract, and puts it under the constraints of the capital maintenance principle. However, the current company law capital maintenance principle is too rough, leading to the gambling share repurchase can only be reduced through capital reduction, to increase the cost.However, the current judgment rules reverse the procedure of capital reduction and repurchase, the procedure of capital reduction can not be conducted and other major problems, which makes it difficult to actually perform the share repurchase, resulting in the absence of investor protection. The principle of replacing capital maintenance with solvency and continuing operation standards outside the domain reflects another regulatory idea of restricting the one-way outflow of corporate assets to shareholders guided by the interests of creditors. However, its high operating costs cannot be ignored in the process of its local introduction.Judicial judgment should comprehensively examine the assets of the target company in specific cases to determine how to perform the share repurchase, learn from the responsibility mechanism of the business judgment of the board of directors to overcome the absence of subject and responsibility identification in the company's decision-making, and take multiple alternative creditor protection measures to prevent the expected risks of share repurchase.Finally, the perfection of category stocks in the company law system is the fundamental way to solve the performance dilemma of gambling share repurchase.
{"title":"The Performance of Gambling Share repurchase dilemma and way out with the Company","authors":"Siyi Li","doi":"10.22397/wlri.2022.38.2.169","DOIUrl":"https://doi.org/10.22397/wlri.2022.38.2.169","url":null,"abstract":"China's corporate regulations on repurchase and corporate gambling have undergone a transformation from invalid to effective. The gambling agreement takes the form of contract to construct the corporate governance structure, reconstructing the original risks, interests and control pattern of the company organization, and should be subject to the company's laws and regulations.The rule of \"capital reduction first and then repurchase\" established in the Nine Civil Minutes relies on the principle of differentiation to shift the focus of the judgment to the performance of the contract, and puts it under the constraints of the capital maintenance principle. However, the current company law capital maintenance principle is too rough, leading to the gambling share repurchase can only be reduced through capital reduction, to increase the cost.However, the current judgment rules reverse the procedure of capital reduction and repurchase, the procedure of capital reduction can not be conducted and other major problems, which makes it difficult to actually perform the share repurchase, resulting in the absence of investor protection. The principle of replacing capital maintenance with solvency and continuing operation standards outside the domain reflects another regulatory idea of restricting the one-way outflow of corporate assets to shareholders guided by the interests of creditors. However, its high operating costs cannot be ignored in the process of its local introduction.Judicial judgment should comprehensively examine the assets of the target company in specific cases to determine how to perform the share repurchase, learn from the responsibility mechanism of the business judgment of the board of directors to overcome the absence of subject and responsibility identification in the company's decision-making, and take multiple alternative creditor protection measures to prevent the expected risks of share repurchase.Finally, the perfection of category stocks in the company law system is the fundamental way to solve the performance dilemma of gambling share repurchase.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"48 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":"114224618","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.2022.38.2.31
Jungyong Oh, Hye Hyeon Park
With the development of science and technology, the penetration rate of smartphones has increased, and cyberspace has become more familiar with real life and information accessibility has increased. However, as cyberspace becomes more common, new forms of crime are emerging, and the seriousness of the crime is emerging. Among them, digital sex crimes are the most serious. Amid growing anxiety over the crime, the government announced a comprehensive plan to prevent damage to digital sex crimes and actively discussed enacting and revising related bills, but there is still a gap in support for victims. There is a perception that digital sex crimes are not physically damaged like ordinary sex crimes, and that this crime is lighter than other crimes. However, unlike this perception, digital sex crimes are crimes that are almost impossible to recover from once they are damaged. Once the victim's videos are released into cyberspace, they cannot be permanently deleted, causing pain to victims and social activities cannot be carried out. In other words, the act can be seen as a personality murder of the victim. Despite these criminal characteristics, the system for supporting victims is still inadequate. The lack of understanding of digital sex crimes by investigators and the Ministry of Justice, lack of budget to support digital sex crimes victims' support centers, and difficulties in international cooperation in arresting overseas Internet operators. To solve these problems, education programs should be carried out at the level necessary for each organization to improve the understanding of investigative agencies and the judiciary, and a system should be established to make education compulsory. In addition, it is necessary to expand the budget to support the victims of digital sex crimes, and to join the Cybercrime Prevention Agreement and cooperate with member countries to investigate sites with overseas servers.
{"title":"Problems of supporting victims of digital sex crimes and ways to improve them","authors":"Jungyong Oh, Hye Hyeon Park","doi":"10.22397/wlri.2022.38.2.31","DOIUrl":"https://doi.org/10.22397/wlri.2022.38.2.31","url":null,"abstract":"With the development of science and technology, the penetration rate of smartphones has increased, and cyberspace has become more familiar with real life and information accessibility has increased. However, as cyberspace becomes more common, new forms of crime are emerging, and the seriousness of the crime is emerging. \u0000Among them, digital sex crimes are the most serious. Amid growing anxiety over the crime, the government announced a comprehensive plan to prevent damage to digital sex crimes and actively discussed enacting and revising related bills, but there is still a gap in support for victims. \u0000There is a perception that digital sex crimes are not physically damaged like ordinary sex crimes, and that this crime is lighter than other crimes. However, unlike this perception, digital sex crimes are crimes that are almost impossible to recover from once they are damaged. Once the victim's videos are released into cyberspace, they cannot be permanently deleted, causing pain to victims and social activities cannot be carried out. In other words, the act can be seen as a personality murder of the victim. Despite these criminal characteristics, the system for supporting victims is still inadequate. \u0000The lack of understanding of digital sex crimes by investigators and the Ministry of Justice, lack of budget to support digital sex crimes victims' support centers, and difficulties in international cooperation in arresting overseas Internet operators. To solve these problems, education programs should be carried out at the level necessary for each organization to improve the understanding of investigative agencies and the judiciary, and a system should be established to make education compulsory. In addition, it is necessary to expand the budget to support the victims of digital sex crimes, and to join the Cybercrime Prevention Agreement and cooperate with member countries to investigate sites with overseas servers.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"26 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":"132059589","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.2022.38.2.95
Seo-hyung Lee
In the previous article, the author presented an order that guarantees freedom and equality for all, a legal order in particular. In that context, this article suggests the specific directivity of guaranteeing freedom and right in legal order based on the justice theory of Amartya Sen. In 『The Idea of Justice』 Sen proposes a way to constitute a system promising substantive freedom for all people. Sen presents capability- the opportunity to choose the aim of life on cherishes the most- as the substantive freedom that must be contemplated. He argues that everyone can enjoy substantive freedom when both the opportunity and process aspects of freedom, which the concept of capability effectively presents, are guaranteed. To build such a just system, Sen presents a method of building an system that continues the decision to extend freedom to all and best promotes justice in a specified focal space. To realize this, he assigns those in effective power the obligations to step aside, be an impartial spectator, and not to see everyone as identities like you and me. The disappearance of the identity here is like Tzu Ch’i of South Wall(南郭子綦) losing himself(吾喪我, wu sang wo, ‘I lost myself’) locked in the boundaries discerning the I and you, from in 『Chuang Tzu(莊子)』's "Ch’i Wu Lun(齊物論)". He retrieves the whole of himself(吾) and attains the stage of being one(一) with the wind, which does not discriminate against anything but embraces all. Like Tzu Ch’i of South Wall, those in power decide a plan to build an system that guarantees substantive freedom from the point of view of an impartial spectator who does not set boundaries between the I and you, by embracing everyone including oneself, and considering the context of all lives. Then, will everyone be able to substantively enjoy freedom in their lives if those in power fulfill the aforementioned obligations, as Sen argues? However, Sen gives the obligations to consider and embrace everyone, including oneself, solely to those in power based on the asymmetry of power. In other words, the obligations to not set boundaries between the I and you is paradoxically given by setting boundaries between those who have power and those who do not. Thus, when those in power changes position to another focal space and asks for the guarantee of freedom, they will pursue only their rational aim and accordingly, will not be guaranteed the process aspect of freedom. In the circumstances where it is difficult to guarantee substantive freedom for those who asks for the guarantee of freedom, can we expect those in power to stand for guaranteeing the freedom, adjust their rational aims and make the best decision to promote justice? Based on this review, when those who is asking for the guaranteed freedom can fulfill the role of an impartial spectator disregarding boundaries, the opportunity and process aspects of freedom is guaranteed for everyone including those who asks for freedom,, and those who listen to the voice in any focal
在前一篇文章中，作者提出了一种保障所有人自由和平等的秩序，特别是一种法律秩序。在此背景下，本文以阿马蒂亚·森(Amartya Sen)的正义理论为基础，提出了在法律秩序中保障自由和权利的具体指向性。森在《正义的理念》(the Idea of justice)中提出了一种构建人人享有实质自由的制度的途径。森将能力——选择自己最珍视的人生目标的机会——视为必须考虑的实质性自由。他认为，当自由的机会和过程两个方面都得到保证时，每个人都可以享受实质性的自由，而这两个方面正是能力的概念所有效呈现的。为了建立这样一个公正的制度，森提出了一种建立制度的方法，这种制度继续决定将自由扩展到所有人，并在特定的焦点空间中最好地促进正义。为了实现这一点，他要求那些握有实权的人有义务靠边站，做一个公正的旁观者，而不是把每个人都看成像你我一样的身份。在这里，身份的消失就像《南墙》中的慈子失去了自我(“我失去了我自己”)，被锁在区分我和你的界限中，就像《庄子》中的“我无论”一样。他找回了自己的整体，达到了与风合一的境界，不歧视任何东西，而是包容一切。就像《南墙》里的慈子一样，掌权者从一个不设“我”与“你”界限的公正旁观者的角度，通过包容包括自己在内的每一个人，并考虑所有生命的脉络，来决定建立一个保障实质自由的制度的计划。那么，如果当权者像森所说的那样履行上述义务，每个人都能在生活中真正享受自由吗?然而，森基于权力的不对称，把考虑和拥抱包括自己在内的所有人的义务完全交给了当权者。换句话说，在“我”和“你”之间不设界限的义务，矛盾的是，在那些有权力的人和那些没有权力的人之间设了界限。因此，当掌权者转向另一个焦点空间，要求自由的保障时，他们只会追求自己的理性目的，而不会得到自由的过程方面的保障。在要求保障自由的人的实质自由难以得到保障的情况下，我们能指望当权者站在保障自由的立场上，调整他们的理性目标，做出促进正义的最佳决策吗?基于这一审查，当那些要求保障自由的人能够履行一个不受边界限制的公正旁观者的角色时，自由的机会和过程方面对每个人都是有保障的，包括那些要求自由的人，以及那些在任何焦点空间倾听声音的人。为此，他们必须包容所有人，发出自己要求自由的声音，并向前迈进，自主地建立一种扩大自由和促进正义的秩序。法律秩序不应该利用法律的权力来排斥某人，而应该保障实现这一目的所必需的自由和权利，以便从公正的旁观者的角度利用法律来建立公正的秩序。也许不可能提出一种先天完全公平的制度，但我们可以建立一种公正的社会秩序，包括法律秩序，在我们继续履行我们拥抱每个人的义务时，在我们所处的重点空间中保证所有人的自由和平等。
{"title":"Can substantive freedom be guaranteed by Amartya Sen's theory of justice?: Focusing on the implications of building a legal order","authors":"Seo-hyung Lee","doi":"10.22397/wlri.2022.38.2.95","DOIUrl":"https://doi.org/10.22397/wlri.2022.38.2.95","url":null,"abstract":"In the previous article, the author presented an order that guarantees freedom and equality for all, a legal order in particular. In that context, this article suggests the specific directivity of guaranteeing freedom and right in legal order based on the justice theory of Amartya Sen. \u0000In 『The Idea of Justice』 Sen proposes a way to constitute a system promising substantive freedom for all people. Sen presents capability- the opportunity to choose the aim of life on cherishes the most- as the substantive freedom that must be contemplated. He argues that everyone can enjoy substantive freedom when both the opportunity and process aspects of freedom, which the concept of capability effectively presents, are guaranteed. To build such a just system, Sen presents a method of building an system that continues the decision to extend freedom to all and best promotes justice in a specified focal space. To realize this, he assigns those in effective power the obligations to step aside, be an impartial spectator, and not to see everyone as identities like you and me. The disappearance of the identity here is like Tzu Ch’i of South Wall(南郭子綦) losing himself(吾喪我, wu sang wo, ‘I lost myself’) locked in the boundaries discerning the I and you, from in 『Chuang Tzu(莊子)』's \"Ch’i Wu Lun(齊物論)\". He retrieves the whole of himself(吾) and attains the stage of being one(一) with the wind, which does not discriminate against anything but embraces all. Like Tzu Ch’i of South Wall, those in power decide a plan to build an system that guarantees substantive freedom from the point of view of an impartial spectator who does not set boundaries between the I and you, by embracing everyone including oneself, and considering the context of all lives. Then, will everyone be able to substantively enjoy freedom in their lives if those in power fulfill the aforementioned obligations, as Sen argues? However, Sen gives the obligations to consider and embrace everyone, including oneself, solely to those in power based on the asymmetry of power. In other words, the obligations to not set boundaries between the I and you is paradoxically given by setting boundaries between those who have power and those who do not. Thus, when those in power changes position to another focal space and asks for the guarantee of freedom, they will pursue only their rational aim and accordingly, will not be guaranteed the process aspect of freedom. In the circumstances where it is difficult to guarantee substantive freedom for those who asks for the guarantee of freedom, can we expect those in power to stand for guaranteeing the freedom, adjust their rational aims and make the best decision to promote justice? Based on this review, when those who is asking for the guaranteed freedom can fulfill the role of an impartial spectator disregarding boundaries, the opportunity and process aspects of freedom is guaranteed for everyone including those who asks for freedom,, and those who listen to the voice in any focal ","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"36 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":"133812313","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the case of medical malpractice litigations, even if the hospital's negligence is admitted, in most cases restriction on liability is admitted. Since the medical expenses are in return for medical practice, the hospital can claim it when the medical practice is performed according to the contents delegated. In the event of a medical malpractice, if the hospital is not negligent, or if it is completely responsible, it is clear whether the mandate has been fulfilled. But in case of restriction on liability, it is not clear whether or not a medical fee can be claimed. In many cases, courts judge that there is no obligation to pay the total medical expenses regardless of the liability limit rate, while in most cases, medical expenses are calculated by reflecting the liability limit rate. If the obligation to pay medical expenses is judged differently depending on whether it is a claim for damages or a medical expense lawsuit, an unreasonable situation may occur in which the obligation to pay medical expenses is judged differently depending on the timing of payment of medical expenses. If the patient's negligence contributes, the ratio of negligence should be reflected in the medical expenses according to the law of comparative negligence. If the risk of the disease itself is high or the patient's constitutional predisposition limits liability, the proportion of the factor's contribution in terms of fair and reasonable sharing of damages should be reflected in the claim.
{"title":"Review of the obligation to pay medical expenses in the case of restrictions on liability for medical litigation: Focusing on the court ruling","authors":"D. Park","doi":"10.22397/bml.2022.27.27","DOIUrl":"https://doi.org/10.22397/bml.2022.27.27","url":null,"abstract":"In the case of medical malpractice litigations, even if the hospital's negligence is admitted, in most cases restriction on liability is admitted. \u0000Since the medical expenses are in return for medical practice, the hospital can claim it when the medical practice is performed according to the contents delegated. In the event of a medical malpractice, if the hospital is not negligent, or if it is completely responsible, it is clear whether the mandate has been fulfilled. But in case of restriction on liability, it is not clear whether or not a medical fee can be claimed. \u0000In many cases, courts judge that there is no obligation to pay the total medical expenses regardless of the liability limit rate, while in most cases, medical expenses are calculated by reflecting the liability limit rate. If the obligation to pay medical expenses is judged differently depending on whether it is a claim for damages or a medical expense lawsuit, an unreasonable situation may occur in which the obligation to pay medical expenses is judged differently depending on the timing of payment of medical expenses. \u0000If the patient's negligence contributes, the ratio of negligence should be reflected in the medical expenses according to the law of comparative negligence. If the risk of the disease itself is high or the patient's constitutional predisposition limits liability, the proportion of the factor's contribution in terms of fair and reasonable sharing of damages should be reflected in the claim.","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"8 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":"133594464","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 : 2022-03-30DOI: 10.22397/wlri.2022.38.1.99
Byeong O Kim
{"title":"The Anti-Tada Act and the Scope of the Platform Passenger Transportation Business","authors":"Byeong O Kim","doi":"10.22397/wlri.2022.38.1.99","DOIUrl":"https://doi.org/10.22397/wlri.2022.38.1.99","url":null,"abstract":"","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"314 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116809283","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 : 2022-03-30DOI: 10.22397/wlri.2022.38.1.31
Hyo-jun Im
{"title":"Constitutional Review on Customary International Law","authors":"Hyo-jun Im","doi":"10.22397/wlri.2022.38.1.31","DOIUrl":"https://doi.org/10.22397/wlri.2022.38.1.31","url":null,"abstract":"","PeriodicalId":430360,"journal":{"name":"Wonkwang University Legal Research Institute","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114538258","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：