Institute for Legal Studies Chonnam National University最新文献

{"title":"A Review of Copyright License Issues and Fair Use in the Broadcasting Field: Focusing on broadcasting monitoring","authors":"Yunseok Pak, Siyeol Kim","doi":"10.38133/cnulawreview.2023.43.4.181","DOIUrl":"https://doi.org/10.38133/cnulawreview.2023.43.4.181","url":null,"abstract":"Disputes related to copyright frequently arise in the broadcasting and OTT services. There are three types of disputes. The first is disputes between broadcasters and collective management organizations regarding trust agreements for phonogram incorperated in audiovisual works. The second issue is related to broadcasting remuneration for using audiovisual works and phonograms in broadcasting, and the last is the the application of broadcasting remuneration claims according to international treaties. Some legislative proposals were announced to solve these problems. However, these proposals also have inherent problems that make them difficult to implement. The broadcasting monitoring system is being introduced as a solution to solve copyright rights issues in broadcasting. It is important to point out that the quantitative criteria for fair use need to expand the fair use of copyrights with the broadcasting monitoring system. It might be observed that if a user is sued based on fair use, the user will bear litigation costs. Therefore, if the copyright license fee is lower than the lawsuit cost, it is advantageous for the users to pay for the use of a very small portion of copyrighted works. With the introduction of the broadcasting monitoring system, particularly when implementing a monitoring system for literary works, it is necessary that fair use has to be distinguished from licensed uses of copyright works, and a substantial database for literary works may be required.","PeriodicalId":288398,"journal":{"name":"Institute for Legal Studies Chonnam National University","volume":"41 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139201077","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}

{"title":"Regarding the Necessity of Unified Application of the Exclusion Period for the Request for Cancellation and the Request for Restoration in the Exercise of Obligee's Right of Revocation","authors":"Jun min Lee","doi":"10.38133/cnulawreview.2023.43.4.211","DOIUrl":"https://doi.org/10.38133/cnulawreview.2023.43.4.211","url":null,"abstract":"Under the Korean Civil Code, the obligee's right of revocation is characterized by the fact that only the plaintiff and the defendant have the effect of cancellation according to the theory of relative invalidity, and other creditors can also enjoy the effect of restoration. In addition, a short-term exclusion period is provided to minimize the liquidity condition caused by the exercise of the right to cancel. The precedent takes a position to consider a request for restoration in determining the scope of cancellation of a fraudulent act. Under this premise, once a request for cancellation is made, the beneficiary will be in an unstable position for a long time if the limit of the exclusion period is not applied to the request for restoration. This is not consistent with the purpose of our creditor revocation system, and it is difficult to agree with the attitude of the target judgment in that only creditors can make various choices, giving creditors an edge over bene- ficiaries, and infringing on relative invalidity and creditor egalitarianism. It would be most desirable to resolve this legislatively, but the current civil law amendment does not include this. It may be possible to consider a solution that requires the merger of cancellation claims and restoration claims, and a plan to specify the scope of the exclusion period. And even before the revision of the Civil Code, the attitude of the target judgment needs to be changed through a change in precedent.","PeriodicalId":288398,"journal":{"name":"Institute for Legal Studies Chonnam National University","volume":"169 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139205200","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}

{"title":"The Study on the Relationship Between Duty to Elucidate and Plea of Ssimultaneous Performance in the Case of the Right to Demand for the Ground Facilities Purchase","authors":"Hyunsoo Seok","doi":"10.38133/cnulawreview.2023.43.4.111","DOIUrl":"https://doi.org/10.38133/cnulawreview.2023.43.4.111","url":null,"abstract":"The supreme court case 94DA34265 (hereinafter referred to as ‘The Case’) says that in a lawsuit in which the lessor of land claims removal of ground facilities and delivery of the site against the lessee, if the lessee exercises the right to demand for the ground facilities purchase, the court has duty to elucidate whether the lessor is willing to demand delivery of the ground facilities at the same time as payment of the purchase price. (Hereinafter, elucidation above is referred to as ‘elucidation of simultaneous per- formance). At the basis of The Case, there appears to be an idea that if the lessor's claim changes to delivery of ground facilities, a judgment ordering simultaneous performance should be issued. However, according to majority opinion and precedent, for a judgment ordering simul- taneous performance to be issued, the lessee must file a plea of simultaneous performance. And the lessee's exercise of right to demand for purchase does not include a plea of simultaneous performance. Therefore, the idea that a judgment ordering simultaneous performance should be issued when the lessor's claim is changed to delivery of ground facilities is not valid. On the other hand, according to the minority theory that a ruling ordering simultaneous performance is possible even without a plea of simultaneous performance, the above idea is valid. According to the above majority opinion and precedent, elucidation of simultaneous performance is illegal as it exceeds the limits of the elucidation event. This is because the court indirectly informs the lessee of the existence of a plea of simultaneous performance by providing an elucidation of simultaneous performance to the lessor. On the other hand, according to the minority theory, the elucidation of simultaneous performance is not illegal because the outcome of the lawsuit is not affected even if the court informs the lessee of the existence of the plea of simultaneous performance. However, following the minority theory does not mean that elucidation of simultaneous performance is the court's duty. If the lessor requests delivery of ground facilities and the lessee's plea of simultaneous performance is acknowledged, the court may make a ruling upholding part of the claim. The court is not obligated to ensure that all claims are accepted through elucidation. In the end, The Case's position that elucidation of simultaneous performance is the court's duty is not valid, regardless of whether by majority or minority theory.","PeriodicalId":288398,"journal":{"name":"Institute for Legal Studies Chonnam National University","volume":"59 2","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139206908","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}

{"title":"Reviews on Indirect Compulsory Performance at the Time of the Judgment on the Merits: focusing on appeal process, pronouncement of provisional execution, and addition of claims at appellate trial","authors":"Hyo-In Lee","doi":"10.38133/cnulawreview.2023.43.4.129","DOIUrl":"https://doi.org/10.38133/cnulawreview.2023.43.4.129","url":null,"abstract":"Indirect compulsory performance is a method used by a court to enforce irreplaceable acts or omissions. The Supreme Court has allowed indirect compulsory performance at the time of the judgment on the merits (referred to as “Indirect Compulsory Per- formance” herein) since 1996. This paper focuses on some legal issues that may arise in trials involving Indirect Compulsory Performance. First, the appeal process for Indirect Compulsory Performance should follow the same procedures as those for judgments on the merits. This ensures that Indirect Compulsory Performance can be executed either concurrently with or subsequent to the judgment on the merits, while adhering to the trial procedure and mandate form. Second, a court should declare provisional execution for Indirect Compulsory Performance if such execution is pronounced with the judgment on the merits. Conversely, this declaration should be avoided when no provisional execution accompanies the judgment on the merits. This ensures concurrent execution with the judgment on the merits, thereby enhancing the overall effectiveness of the judicial decision. Lastly, the addition of Indirect Compulsory Performance during the appellate trial should not be allowed, as it could breach the court’s jurisdiction and potentially disrupt the balance between creditors and debtors.","PeriodicalId":288398,"journal":{"name":"Institute for Legal Studies Chonnam National University","volume":"214 2","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139206783","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}

{"title":"A study on “Bail à nourriture” in French civil law: Expansion of reverse mortgage to prepare for an aging society","authors":"Jun-hyeok Park","doi":"10.38133/cnulawreview.2023.43.4.83","DOIUrl":"https://doi.org/10.38133/cnulawreview.2023.43.4.83","url":null,"abstract":"According to recent articles, Korea is aging very rapidly. In order to prepare for an aging society, various laws and policies are being studied, such as providing certain financial support or providing housing to stabilize housing. In Korea, a Housing Reverse Mortgage is implemented to provide financial assistance to the elderly, and the number of subscribers is increasing every year. Our Housing Reverse Mortgage is a simple system in which a certain amount of money is received using the house as collateral. While it can address economic problems among the many challenges of an aging society, we need to consider various ways to support the elderly, especially given the high value of housing these days. However, since the value of housing is very high these days, it is necessary to think of various ways to use it to secure the elderly. In this respect, France’s “Bail à nourriture” is very interesting topic as a new reverse mortgage method. “Bail à nourriture” has not yet been introduced in Korea because it has existed only as precedent for a long time without any provisions in the Civil Code and is not explained in detail in legal literature. “Bail à nourriture” is similar to a reverse mortgage in that one party to the contract transfers his/her house to the other party, but the difference is that the other party has an obligation to support the party rather than simply paying a certain amount of money. According to the precedent of the Court of Cassation in France, the contract may include not only matters related to food, clothing, and shelter, but also matters related to medical care and physical activities. Through this contract, France seeks not only to solve the financial problems of the elderly, but also to solve various problems such as social isolation and difficulties in living among the elderly. Today, in France, the value of houses has increased, “Bail à nourriture” is attracting attention again. In order to prepare for an aging society, Korea also needs to consider expanding reverse mortgages, which can address a variety of problems rather than simply paying money in exchange for high value housing.","PeriodicalId":288398,"journal":{"name":"Institute for Legal Studies Chonnam National University","volume":"319 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139202975","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}

{"title":"A Study on the Protection of Color Marks: Focused on the requirement of distinctiveness and functionality","authors":"Gi-sung Choi","doi":"10.38133/cnulawreview.2023.43.3.145","DOIUrl":"https://doi.org/10.38133/cnulawreview.2023.43.3.145","url":null,"abstract":"A trademark which comprises a single color or a combination of colors has become the subject of registration in Korea since 2007. Color marks is recognized as one of the non-traditional mark. The concern that a color can be monopolized due to the effect of trademark protection and no one else use the mark results in the fact that there are still only a few examples of trademark registration of color marks. It can be said that it is important to establish the standard for protection under what conditions prescribes the protection of color marks. In particular, the question of distinctiveness, which is a basic requirement for trademark protection, it is considered that colors cannot be inherently distinctive in principle, and must be acquired secondary meaning through use. It is difficult to assume that colors are used alone, and there is a difficulty in that colors should be regarded as having independent discrimination when used together with letters and/or symbols. A consumer survey can be an effective for measuring acquired distinctiveness, but must be taken to ensure reliable results. Functionality doctrine is also important requirements for color marks protection, and not only traditional utilitarian functionality but also aesthetic functionality needs to be reviewed.","PeriodicalId":288398,"journal":{"name":"Institute for Legal Studies Chonnam National University","volume":"61 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123913224","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}

{"title":"Relationship Between Obligation to Complete Work and Defect Liability in Software Development Contracts","authors":"Chi-Wang Ok","doi":"10.38133/cnulawreview.2023.43.3.1","DOIUrl":"https://doi.org/10.38133/cnulawreview.2023.43.3.1","url":null,"abstract":"Today, as the use of computers, communication, and automation equipment increases, the demand for development of software used in hardware is also increasing, and software development contracts are also frequently signed. In the case of software development contracts, the development requirements or the details of what developers have to do at the time of signing the contract are often not specifically determined in the contract, resulting in a lot of disputes regarding “Whether the work has been completed” or defect liability. Therefore, in this study I examined the content of an obligation to complete work and defect liability and the relationship between them so that it can be used as a reference in resolving or preventing wasteful disputes at software development sites. \u0000In the case of software development contracts, as it is difficult to expect the delivery of a complete product without any defects, the criteria for determining the completion of work is somewhat eased compared to ordinary contracts for work, so the ordering party cannot deny “work completion” due to minor defects. Therefore, if there is a minor defect in the software delivered by the developer after completing the development of it, the ordering party must acknowledge the completion of the work and pay compensation corresponding to the completion of the work, and the ordering party can only claim defect liability for such minor defect against the developer. In other words, the wider the scope of defects to be resolved by the defect liability, the narrower the scope of defects recognized as the incompletion of work, so it can be said that the obligation to complete work and the defect liability have a complementary relationship. In addition, even if the work as a whole is incomplete, in certain cases, remuneration may be paid for the completed part. \u0000If this research results can be referenced for the software development contract practice, consumptive disputes arising from unjust denial of the completion of work due to minor defects can be prevented, and disputes that have occurred can be reasonably adjusted. However, in order to more actively protect small software development companies, it is necessary to clarify the obligation of the contracting party through legislation. Therefore, in Chapter 4 of this study, I made legislative suggestions.","PeriodicalId":288398,"journal":{"name":"Institute for Legal Studies Chonnam National University","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133399392","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}

{"title":"Joint Tortfeasor's Right of Contribution in Overlapping Liability Insurance: A Critical Review of Supreme Court Decision of 2009. 12. 24., 2009Da42819","authors":"Byungseok Jeong","doi":"10.38133/cnulawreview.2023.43.3.243","DOIUrl":"https://doi.org/10.38133/cnulawreview.2023.43.3.243","url":null,"abstract":"As indicated in the ruling at issue, the contribution right arising from the underlying torts and the right of contribution arising out of overlapping insurance coverage coexist and can be exercised simultaneously, in competition, or successively. However, once one contribution right is satisfied, the other is proportionately diminished. The decision at issue, clarifying these legal principles and providing a specific method for calculating the amount of subrogation claims, is significant as a case of first impression on these issues. \u0000This paper’s main arguments can be summarized as follows: 1. In liability insurance, it is crucial to consider concepts such as the insurable interests, the sum insured, and the amount of insurance coverage. Especially when unlimited liability insurance is one of the overlapping insurances, or when both are unlimited in liability, determining the amount to be paid respectively by the insurers, which serves as the basis for apportioning compensation liability among insurers, becomes unfeasible. \u00002. It is questionable whether the direct contribution rights among insurers are acquired from the subrogation of the right of insured or from the direct claim rights of the victim. The author maintains that this contribution right among the insurers arises from the internal relations among multiple obligors liable to the victim. This right therefore is sui generis. \u00003. The exercise of contribution rights among insurers involves separating the portion of liability attributable to the fault of the other party, and claiming the share of the overlapping insurance portion remaining after the first contribution. However, the result of the calculation remains the same, whether the proportion of overlapping insurance is applied first to the entire compensation liability or not. \u00004. The right of contribution concerning the torts and the right concerning overlapping insurances are independent and separate causes of action, however, they should be treated and managed in litigation process without any contradiction.","PeriodicalId":288398,"journal":{"name":"Institute for Legal Studies Chonnam National University","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132229787","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}

{"title":"A Study on employer’s scope of the right of indemnity under the insurance policy of fidelity guarantee: Focused on the judgment of the Supreme Court 2019DA210697 sentenced on December 29, 2022","authors":"HanDeok Jun","doi":"10.38133/cnulawreview.2023.43.3.223","DOIUrl":"https://doi.org/10.38133/cnulawreview.2023.43.3.223","url":null,"abstract":"The employer who compensated for damages suffered by a third party due to an employee's illegal activities in an insurance policy of fidelity guarantee can use the right to indemnity against the employee for the remaining damages without being transferred to the insurance money received from the insurance company. However, the criteria for setting the scope of the specific amount of money are different from the original trial and the Supreme Court. The Supreme Court presupposes that the plaintiff's damages are the total damages paid to the third party due to the defendant's fault in determining the amount of indemnity for the policyholder of the insured. However, the Supreme Court overlooked that liability insurance is a contract that guarantees legal damages on the insured. In addition, in order to calculate the specific insurance premium in the event of an insurance accident, the liability limit of the fidelity guarantor must be determined after confirming the scope of legal liability for damages of the policyholder. This judgment of the Supreme Court does not correspond to the legal principle of liability for employer's liability under the civil law. In view of the fact that the plaintiff, who is the insured, enjoys unfair excess profits, it also violates the principle of actual expense compensation in the non-life insurance system. Therefore, the judgement of the court of first instance is right which judged the plaintiff's indemnity amount deducting the insurance money already paid from the legal damages.","PeriodicalId":288398,"journal":{"name":"Institute for Legal Studies Chonnam National University","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133413186","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}

{"title":"Introduction of the validity limit (cap) regulation for the duration of the extended pharmaceutical patent","authors":"Chihyun Kwon","doi":"10.38133/cnulawreview.2023.43.3.117","DOIUrl":"https://doi.org/10.38133/cnulawreview.2023.43.3.117","url":null,"abstract":"The current patent law stipulates that the period required to obtain a drug product license under the Pharmaceutical Affairs Act is regarded as a period in which a drug patent holder could not carry out a drug patent invention for a business and the duration can be extended up to a maximum of five years. However, there is no regulation on the validity limit (cap) of the duration for the combined period the extended duration and the residual duration. \u0000As a result, regardless of the date on which the drug is licensed, the drug patent holder receives an extension of the duration of up to five years and controls the drug market with an exclusive status. Meanwhile, generic pharmaceutical companies do not have a cap on the validity of the extended duration, so entry into the market of generic (or biosimilar) drugs may be restricted for a long time. There is a problem that the market supply of cheap generic drugs is delayed, which rather hinders the promotion of national health. \u0000Under the current regulation that the duration can be extended for up to five years as a way to solve these problems, like the United States, the EU, and China, it is necessary to introduce a maximum valid limit (cap) regulation in the Patent Act that the combined period of “extended duration” and “residual duration” cannot exceed a certain period (e.g., 14 years).","PeriodicalId":288398,"journal":{"name":"Institute for Legal Studies Chonnam National University","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123817166","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}