Institute for Legal Studies Chonnam National University最新文献

{"title":"Interpretation of the juridical acts: Focusing on the primary purpose of the lower judgment of the Supreme Court's sentence of 2019Da293449 on April 15, 2021","authors":"Jongmok Park","doi":"10.38133/cnulawreview.2023.43.2.273","DOIUrl":"https://doi.org/10.38133/cnulawreview.2023.43.2.273","url":null,"abstract":"The main issue of the Supreme Court's ruling in this case was the recognition of the plaintiff's preliminary claim by reversely applying the legal principles of denial of legal personality to the defendant. The plaintiff's rights were recognized with difficulty. However, the claim for delivery of movable property under the 'Memorandum of Performance' that the Plaintiff had requested was dismissed on the grounds that it was not a title holder in the disposition document. The main basis for the decision to dismiss was the interpretation of legal acts based on indication that the existence and content of the expression of intention should be recognized as the text if the meaning of the text is objectively clear. Past discussions were conducted by dividing the goal of interpreting legal acts into expressing the parties' true intentions and expressing the objective meaning of the indicated text. However, currently, the types of legal acts are subdivided in various ways to set the goal of interpreting legal acts. In a similar way, precedents on the Supreme Court's interpretation of legal acts reveal the contents of legal acts by comprehensively considering the details of specific cases, the circumstances of the parties, and the laws applied to legal acts. The impact of Supreme Court precedents on the law and the people is very significant. In all cases, more careful and careful review is needed for the one-time dispute resolution of specific cases and the relief of the rights of the parties.","PeriodicalId":288398,"journal":{"name":"Institute for Legal Studies Chonnam National University","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134164339","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 Criteria for Determining Sufficient Protection and Safety from the Case of ISD","authors":"Insook Kim","doi":"10.38133/cnulawreview.2023.43.2.191","DOIUrl":"https://doi.org/10.38133/cnulawreview.2023.43.2.191","url":null,"abstract":"With the development of BIT, the regulation of 'sufficient protection and safety' was introduced to protect and promote foreign investment. Sufficient protection and safety regulations have traditionally been limited to protecting investors and investment from physical damage and threats from troops, soldiers, and rebel workers in investment host countries. Cases applying sufficient protection and safety have dealt with damage to the physical assets of investors committed by third parties unless the governments of investment host countries exercise significant care in preventing damage or punishing actors. Regarding the meaning of ‘due diligence’, the arbitral tribunal has mentioned that due diligence is no more than or less reasonable precautions that are expected to be exercised by a legitimately operated government in similar situations. There are many cases in which the 'sufficient protection and safety' regulation is interpreted as a broad concept that includes providing legal stability as well as physical protection. It is difficult to say that a sufficient consensus has been formed on whether the ‘sufficient protection and safety’ standard should provide a business environment or legal stability in excess of the country's obligation to provide simple physical safety for foreign investors and investments. Furthermore, even if the scope of application of this provision is widely interpreted, the state cannot even take issue with exercising its legitimate regulatory authority to achieve reasonable policy purposes. The obligation to provide sufficient protection and safety for foreign investment is to protect investors from bullying by third parties or state actors, but banning regulations or legislation that affect investors should not be interpreted.","PeriodicalId":288398,"journal":{"name":"Institute for Legal Studies Chonnam National University","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117145186","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":"Die Modernisierung des deutschen Personengesellschaftsrechts: Anregungen für das koreanische Recht","authors":"Y. Choi","doi":"10.38133/cnulawreview.2023.43.2.63","DOIUrl":"https://doi.org/10.38133/cnulawreview.2023.43.2.63","url":null,"abstract":"Das im August 2021 verkündete Gesetz zur Modernisierung des Personengesellschaftsrechts (MoPeG) tritt am 1. Januar 2024 in Kraft. Nach der Gesetzesbegründung verfolgt das neue Gesetz die folgenden fünf Ziele: 1) Konsolidierung des Rechts der Gesellschaft bürgerlichen Rechts (GbR), 2) Modernisierung des Rechts der Personengesellschaften, 3) Behebung des Publizitätsdefizits der GbR, 4) Flexibilisierung der Haftungsverhältnisse von Angehörigen Freier Berufe und 5) Herstellung von Rechtssicherheit bei Beschlussmängelstreitigkeiten von Personenhandelsgesellschaften. Der wesentliche Inhalt des MoPeG kann wie folgt zusammengefasst werden: 1) Anerkennung der Rechtsfähigkeit der GbR, 2) Registrierung der GbR, 3) Regelung des Beschlussmängelrechts der Personenhandelsgesellschaften und 4) Öffnung der Personenhandelsgesellschaften für die Angehörigen Freier Berufe. Es ist u.a. bemerkenswert, dass sich durch das MoPeG das grundlegende Verständnis über die Rechtsnatur der GbR ändert und die Registrierung der GbR ermöglicht wird. Folgerichtig ändert sich die Vermögenszuordnung der GbR und das Gesamthandsprinzip wird aufgegeben. Der Verfasser stellt die wesentlichen Änderungen durch das MoPeG vor und untersucht sie insbesondere mit Blick auf ihre Anregungen für das koreanische Recht der Gesellschaft bürgerlichen Rechts, das auf die societas nach dem römischen Recht zurückgeht.","PeriodicalId":288398,"journal":{"name":"Institute for Legal Studies Chonnam National University","volume":"89 6","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132227164","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":"Possibility of analogical application of Article 398 (2) of the Civil Act on the penalty: Focused on the Supreme Court Decision 2018Da248855, 248862 Delivered on July 21, 2022","authors":"Na-Rae Kim","doi":"10.38133/cnulawreview.2023.43.2.245","DOIUrl":"https://doi.org/10.38133/cnulawreview.2023.43.2.245","url":null,"abstract":"Recently, the Supreme Court ruled that the penalty agreement cannot be reduced because it is different from the liquidated damages. These results are the same position as conventional precedents, and it can be seen that the current precedent is valid and should be maintained as it is. In other words, as a reaffirmation of the validity of the current precedent, penalty cannot be reduced in principle, and penalty can be exceptionally reduced only if they have the nature of liquidated damages at the same time. There are similar aspects of the liquidated damages and the penalty regarding function, and as a result, there are continuous precedents that do not distinguish the concept of the liquidated damages and the penalty. Rather than distinguishing the nature of the damages for breach of contract between the parties, Article 398 of the Civil Code should be improved in a way that allows the party who fails to fulfill the contract or violates the contract to compensate the creditor for a reasonable amount. In other words, it would be desirable to integrate the two concepts into one rather than separate and regulate them in different ways. Accordingly, I agreed that the liquidated damages and the penalty under the 2013 revision of the Ministry of Justice are not separately distinguished, but are integrated into the upper concept of penalty. In Paragraph 3 of the amendment, if the penalty is unfairly excessive, it is reasonable for the court to reduce the penalty. In addition, it is reasonable to delete Paragraph 2 of the amendment, which assumes that damages for breach of contract is to be the liquidated damages. Through this, we intend to establish a fair transaction order by pursuing legal stability while respecting private autonomy between the parties regarding the damages for breach of contract.","PeriodicalId":288398,"journal":{"name":"Institute for Legal Studies Chonnam National University","volume":"52 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128320268","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":"Criminal law measures to protect trade secrets: focusing on the Unfair Competition Prevention and Trade Secret Protection Act","authors":"Y. Chung","doi":"10.38133/cnulawreview.2023.43.2.119","DOIUrl":"https://doi.org/10.38133/cnulawreview.2023.43.2.119","url":null,"abstract":"In the rapidly evolving high-tech industry, the significance of safeguarding trade secrets is growing exponentially as the risk of unauthorized access and information breaches continues to escalate. A “trade secret” is information, including a method of manufacture, method of sale, technical or business information useful in the conduct of business, which is not publicly known, is the subject of reasonable efforts to maintain its secrecy, and has independent economic value. The Unfair Competition Prevention and Trade Secret Protection Act in Korea serves to shield these trade secrets from infringement. Nonetheless, the current penalty structure outlined in the Unfair Competition Prevention and Trade Secret Protection Act faces several shortcomings. In practical terms, the offense of breaching professional trust has been widely employed to facilitate criminal sanctions against trade secret violations. However, this excessive reliance on the breach of professional trust crime has resulted in a lack of clarity regarding the elements stipulated in the Unfair Competition Prevention and Trade Secret Protection Act. To effectively penalize accomplices involved in trade secret infringements and those attempting to unlawfully obtain trade secrets, a comprehensive and well-grounded approach must be adopted. This necessitates considering attempts, preparations, and conspiracies as integral components of the Unfair Competition Prevention and Trade Secret Protection Act.","PeriodicalId":288398,"journal":{"name":"Institute for Legal Studies Chonnam National University","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129851246","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 Comparative Study on the Legislation of Stalking Protection Orders under the Stalking Punishment Act","authors":"Zooyong Song","doi":"10.38133/cnulawreview.2023.43.2.91","DOIUrl":"https://doi.org/10.38133/cnulawreview.2023.43.2.91","url":null,"abstract":"Despite the introduction of the Stalking Punishment Act, it has been pointed out that it is insufficient for the actual protection of victims. Accordingly, the National Assembly is making quick moves to protect victims. One of the most important legislative activities is the introduction of a stalking protection order. Currently, nearly 10 amendments contain the introduction of stalking protection orders. This legislative movement itself can be said to be positive. This is because, due to the nature of stalking that shows continuity and repetitiveness, the current law alone is not suitable for victim protection, and there are many examples of legislation of other countries that have stalking protection orders. Furthermore, the Act On Special Cases Concerning The Punishment Of Crimes Of Domestic Violence has already introduced a protection order against domestic violence, so introducing a stalking protection order under the Stalking Punishment Act can't be said to be unreasonable legislation that does not suit our law system. However, the above amendments have several problems. As a result, this article draws implications by examining Stalking-related protection orders in the US, UK, and Taiwan, and then proposes specific legislative plans as follows. First, the revision of applicant regulations, second, the stipulation of matters necessary for filing a stalking protection order in Stalking Punishment Act, and the exemption of trial costs when applying for a stalking protection order, third, protection of victim privacy in the hearing process, fourth, the validity period of the stalking protection order should be up to three years, and fifth, the individual measures that can be taken in the stalking protection order should be more diversified, and it should be possible to set different validity periods for each individual measure.","PeriodicalId":288398,"journal":{"name":"Institute for Legal Studies Chonnam National University","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126554873","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 U.S FTCA’s the Discretionary Function Exception and Its Implication","authors":"H. Jeong","doi":"10.38133/cnulawreview.2023.43.2.317","DOIUrl":"https://doi.org/10.38133/cnulawreview.2023.43.2.317","url":null,"abstract":"On July 14, 2022, the Supreme Court of Korea made a ruling on the “state compensation claim case due to overcrowded incarceration.”(Korean Supreme Court Decision No. 2017Da266771) One ex-prisoner, recognized the overcrowded confinement period as 186 days, was awarded 1.5 million Korean Won in state compensation and the other ex-prisoner, recognized the overcrowded confinement period as 323 days, was awarded 3 million Korean Won in state compensation. The Supreme Court of Korea acknowledged the state’s damages liability based on the violation of ‘dignity and value as a human being’ Sect. 10 of Korean Constitution, not the violation of specific laws in this ruling. Unlike the National Compensation Act in Korea, the state compensation liability based on the tort of a public officer’s in the United States, which separately stipulates the state compensation liability due to the public officer’s intentional torts and the state compensation liability caused by the public officer’s negligence. The Federal Tort Claims Act has a discretionary function exclusion clause, and the U.S. Supreme Court recognizes this exclusion in its rulings. The U.S. Federal Circuit courts have presented different rulings on the scope of exclusion from discretionary function in relation to the illegal acts of federal officers. In Bivens claims, the alleged violation of the federal constitution here is a violation of very specific constitutional provisions, such as the 1st and 8th Amendments. It did not target violations of the ideology of guaranteeing basic human rights such as ‘dignity and value as a human being’. Regarding the Bivens claim, the U.S. Supreme Court would not hardly find cases in which the state recognized torts liability for the human rights violations of prisoners. Even considering these points, the state compensation liability should not be based on a violation of the Korean Constitution Sect. 10 ‘dignity and value as a human being’, but on a violation of the actual laws or specific regulations. There are concerns that the recognition of state compensation liability due to a violation of the Korean Constitution Sect. 10 ‘dignity and value as a human being’ would have provided a starting point for similar state compensation lawsuits in the future in Korea. If it becomes a catalyst to promote supplementary works such as new legislations and construction of new facilities to improve prisoner’s basic human rights, it might be also considered to be meaningful Korean Supreme Court’s decision in Korea.","PeriodicalId":288398,"journal":{"name":"Institute for Legal Studies Chonnam National University","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126136365","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 Fair Hiring Procedures","authors":"Tae Hyun Kim, Seok-Jin Son","doi":"10.38133/cnulawreview.2023.43.2.215","DOIUrl":"https://doi.org/10.38133/cnulawreview.2023.43.2.215","url":null,"abstract":"Recruitment is a process whereby a job seeker (employer) seeks to establish an employment relationship with a job applicant (worker) while attempting to minimize future risks by thoroughly evaluating the job seeker. For a long time, recruitment has been considered an area of free management behavior for employers. However, according to the Constitution, job seekers are entitled to dignity and the pursuit of happiness (Article 10), equality and protection against discrimination (Article 11(1)), freedom to choose their occupation (Article 15), public service (Article 25), the right to work (Article 32), and the right to live as a human being (Article 34). The right to equality is a fundamental norm that has the nature of a natural right and is widely applied today not only in the relationship between the state and individuals but also in the relationship between individuals and individuals. Therefore, it should be applied not only in the recruitment of employees by the state or public organizations but also in the recruitment of employees by private companies. A 2019 survey by the Korea Institute of Labor Research found that blind recruitment promotes fairness and that job competency through blind recruitment is relatively high. It is essential for our society to ensure fair recruitment opportunities, as work enables workers to make a living and realize their potential. It is our challenge to secure fairness in recruitment while selecting talented individuals with excellent job skills, and society will develop in a positive direction. Consequently, the Act on Fairness in Recruitment Procedures has been amended to expand the use of blind recruitment. While the regulations under the ｢Fair Hiring Procedure Act｣ may raise concerns about infringement on the freedom of business or enterprise, the public purpose of the law justifies it, even if there is some restriction on business or enterprise freedom. As a society, we must continue to discuss improvements and complementary points regarding the introduction and activation of blind recruitment. In the meantime, fairness has become a hot topic, and companies have been incorporating artificial intelligence (AI) into their recruitment processes in recent years. For human resources teams, AI interviews are the best way to promote “fairness” and “objective evaluation” in hiring, in addition to saving time and money. However, AI is prone to bias and discrimination. This has resulted in various discussions and legislation in the United States and Europe to prevent bias in AI recruitment and promote fairness, transparency, and accountability. Employers who want to use AI recruitment must obtain the consent of job seekers in advance, explain how AI recruitment works to job seekers, and undergo an external audit of its fairness. As legal liability, fairness, and privacy will likely become issues in Korea due to AI recruitment in the future, it is necessary to revise the ｢Fair Hiring Procedure Act｣ by referring to ","PeriodicalId":288398,"journal":{"name":"Institute for Legal Studies Chonnam National University","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129842273","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":"Judgment the eligibility of the party in the application for remedy for unfair labor practices","authors":"S. Cho","doi":"10.38133/cnulawreview.2023.43.1.175","DOIUrl":"https://doi.org/10.38133/cnulawreview.2023.43.1.175","url":null,"abstract":"In this case, the issue was whether the conciliatory remarks of the executive director, who has the position of representing the interests of the company, constituted an unfair labor practice against union members and labor unions, As a related issue or prerequisite, whether an employer who are not business owner is eligible as a respondent for an unfair labor practice remedy application, and a labor union who is not the direct counterpart of the unfair labor practice is eligible as an applicant for an unfair labor practice remedy application in case of infringement of rights. This is a case in which a judgment is made on the eligibility of the parties, etc. Regarding this issue, the target judgment is based on Article 81 of the Trade Union Act, criticizing the understanding that only the business owner has the qualifications of the respondent in relation to the remedy order when it is conventionally judged that unfair labor practices are established with respect to the eligibility of the respondent. It was judged that all the users specified were qualified as respondents. And if the rights of a specific trade union may be infringed due to unfair labor practices against a trade union that seeks to join or solidarity with a specific trade union regarding the eligibility of the applicant, the specific trade union directly commits the unfair labor practice Even if it is not the other party, it is judged that it has the qualifications to apply for remedy for unfair labor practice. In spite of some unsatisfactory aspects in the target judgment, it is possible to apply for relief against the manager, etc. It is significant in that it is a ruling that can make a big change in practice related to unfair labor practice relief applications, such as the specific labor union having the right to apply for relief.","PeriodicalId":288398,"journal":{"name":"Institute for Legal Studies Chonnam National University","volume":"275 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123118700","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":"Management of research projects of academic support projects and freedom of academic activities of researchers: Focusing on academic support projects in the field of humanities and social sciences","authors":"Kyoung-hee Baek","doi":"10.38133/cnulawreview.2023.43.1.25","DOIUrl":"https://doi.org/10.38133/cnulawreview.2023.43.1.25","url":null,"abstract":"Researchers have academic freedom guaranteed by the Constitution, regardless of the field of research. Because the research results created by researchers through academic freedom are ultimately created as social or economic benefits, governments and universities in each country are conducting so-called 'academic support projects' that provide research funds to researchers on a large scale. In South Korea, the Ministry of Education has designated the National Research Foundation of Korea as the leading institution to promote various academic support projects not only for individual researchers but also for institutions such as universities and research institutes. However, whether the research support project of the National Research Foundation of Korea effectively and fairly supports the academic and R&D activities of researchers, whether the management of research results through the project, and the regulation of researchers are appropriate, and whether it infringes on the academic activities of researchers. Supreme Court decision has recently been pronounced that the excessive management of academic and R&D activities by the National Research Foundation of Korea infringes on researchers' academic freedom and goes against the stance of abolishing regulations on research aimed at by the government. In this paper, we examine what the basis of the current laws and regulations are for the regulation of the submission and management of final research results in relation to the National Research Foundation of Korea's academic support project in the field of humanities and social sciences, and how it affects the academic freedom of researchers. In addition, I will examine how the court understands the relationship between the freedom of academic activities of researchers and the regulation of academic support projects in real cases.","PeriodicalId":288398,"journal":{"name":"Institute for Legal Studies Chonnam National University","volume":"304 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126025112","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}