{"title":"Practical operation and Supplementary points of the Stalking Punishment Law: Focusing on Stalking Interpretation and Interrogation System Operation","authors":"Jae-Pyoung Park","doi":"10.34267/cblj.2023.34.1.87","DOIUrl":"https://doi.org/10.34267/cblj.2023.34.1.87","url":null,"abstract":"Stalking crime is a crime that causes severe mental and physical damage to the victim to the extent that normal daily life is difficult. There is a very high possibility that it can develop into a violent crime that threatens the body or life. Korea's stalking punishment law distinguishes and stipulates the stalking act and the stalking crime under the premise of prompt and preliminary prevention of the victim, and has provisions to take certain temporary measures against the stalker. From the viewpoint of victim protection against stalking, more flexible legislation and interpretation are required, and similar trends are observed in other countries' legislation. From a procedural aspect, provisional measures operated to protect victims are considered administrative action (police action) or quasi-judicial action, which must consider not only legitimacy but also purpose. So we need to operate more carefully. Nevertheless, even though there is no interrogation system in the stalking punishment law, setting up an interrogation system as an internal regulation, not a law, is contrary to the reservation principle of the law called the reservation of the National Assembly. If necessary, it is reasonable to review the introduction of the system through legislation through a resolution by the National Assembly.","PeriodicalId":307875,"journal":{"name":"LAW RESEARCH INSTITUTE CHUNGBUK NATIONAL UNIVERSITY","volume":"133 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122142303","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":"Suggestions for Preventing Abuse of Persons with Disabilities: Focusing on the revision of 「Act on Welfare of Persons with Disabilties」 and comparative legal review of Japanʼs 「Act on Prevention of Abuse of Persons with Disabilities」","authors":"Zaehee Kim","doi":"10.34267/cblj.2023.34.1.63","DOIUrl":"https://doi.org/10.34267/cblj.2023.34.1.63","url":null,"abstract":"The National Assembly is constantly discussing the enactment of the “Act on Special Cases on the Punishment of Abuse of Persons with Disabilities” for crimes of abuse of persons with disabilities. The enactment's arguments primarily call for zero tolerance and harsh penalties. However, it raises questions about the effectiveness of responding to the crime of abuse of the disabled only with aggravated punishment. In order to respond to abuse of the disabled, various cause analysis and approaches are needed. In particular, in the case of abuse by guardians of the disabled, if the guardian's economic and emotional burden leads to abuse, it will be more effective to prevent abuse of the disabled through education and support rather than severe punishment for the abuser. Then, in order to prevent abuse of the disabled, we looked at whether the current Welfare of the Disabled Act is meaningless in responding to abuse of the disabled. In addition, Japan's “Act on Prevention of Abuse of Persons with Disabilities” was comparatively reviewed. It was intended to effectively prevent abuse of the disabled and to propose practical countermeasures.","PeriodicalId":307875,"journal":{"name":"LAW RESEARCH INSTITUTE CHUNGBUK NATIONAL UNIVERSITY","volume":"79 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123633659","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":"An Empirical Study of the Optimal Patent Term","authors":"Sang Mi Lee","doi":"10.34267/cbstl.2023.14.1.83","DOIUrl":"https://doi.org/10.34267/cbstl.2023.14.1.83","url":null,"abstract":"Theoretically, the ideal term of a patent is to set up to expire when the social costs outweigh the benefits. However, given the decline in returns from patents over time and the discount rate of the annual patent value, a period of 20 years is actually quite a long time for the average inventor. In particular, considering that the product cycle in the high-tech industry is very short, it is doubtful whether the current long and uniform duration adequately reflects society's expectations, or whether the costs for access or transaction are excessively imposed. Many studies on finding the optimal patent term have discussed it as an economic point of view. Some have proposed an optimal patent policy through a combination of patent length and scope, while others have suggested adjusting the strength of patent protection through a single adjustment of the length. This paper attempts to approach this problem based on the latter. And when setting the optimal patent term, classification by industry(or by technical characteristics) should be premised. This is because, in fact, the cost of developing an invention and its benefits in terms of social welfare vary from field to field. This paper emphasizes the need to shorten the term of patents and grant differentiated terms for each category of patents, and proposes to realize these policies.","PeriodicalId":307875,"journal":{"name":"LAW RESEARCH INSTITUTE CHUNGBUK NATIONAL UNIVERSITY","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122290721","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":"Revision of Civil Procedure Act of Japan in 2022: From the Perspective on the Implications of Civil Electronic Litigation","authors":"S. Cho","doi":"10.34267/cbstl.2023.14.1.205","DOIUrl":"https://doi.org/10.34267/cbstl.2023.14.1.205","url":null,"abstract":"Electronic litigation ensures the accessibility of trial proceedings and court records to the general public by utilizing electronic documents and an electronic case management system. Information Technology (IT) enables litigation to be conducted expeditiously. In this regard, electronic litigation not only facilitates fair and efficient trials but also enhances public trust in the judicial system. However, the implementation of electronic litigation requires the legislation for electronic litigation and the development of systems to facilitate its operation. Initially hesitating the adoption of electronic litigation, Japan fully embraced it by revising the Civil Procedure Act of Japan in 2022. This revision encompasses a broad range of modifications to the civil litigation system, including not only the digitalization of civil litigation, but also the introduction of expedited procedures, the implementation of a protective measure for party identification, and the establishment of procedures for the investigation of electronic evidence. The primary objective behind Japan's reform of civil litigation adopting electornic litigation is to enhance procedural efficiency and effectiveness, improve litigant accessibility, and ultimately uphold the principles of fairness in trials, thereby elevating the overall quality of the judicial process. This paper focuses on three key aspects: 1) online filing and service, 2) electronic courtroom, and 3) electronic case management. By conducting a comparative study on the provisions of electronic litigation between Japan and Korea, it can be expected to introduce implications with regard to electronic litigation in Korea.","PeriodicalId":307875,"journal":{"name":"LAW RESEARCH INSTITUTE CHUNGBUK NATIONAL UNIVERSITY","volume":"64 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123109246","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":"An Examination on the Enhancement of Statutory Punishment against False Accusation","authors":"Chan-Geol Park","doi":"10.34267/cblj.2023.34.1.115","DOIUrl":"https://doi.org/10.34267/cblj.2023.34.1.115","url":null,"abstract":"For the reason that it is difficult to admit inner side of a criminal offender as evidence and it is not easy to sentence the accused in prison in confessed cases as it is needed to reduce the sentence as necessary in case the accused makes confession in false accusation, the fact remains that sentence against false accusation has been standardized so far. Eventually, to restrain indiscriminate accusation·complaint and promote proper exercise of state penal power, it is necessary to extend application scope of false accusation and strengthen punishment, but it is also necessary to place strict restrictions on application scope of false accusation to prevent unwarranted invasion by guaranteeing rights of victims of crime to file a suit·complaint still exists. As various improvement plans for overcoming the above circumstances, it is time to examine plans to increase statutory punishment on the criminal law against false accusation in all cases against brutal crimes such as homicide·robbery·rape etc., punish respective crime such as false accusation with sentence on the existing National Security Law, delete monetary penalty as an optional punishment from the statutory punishment against false accusation and establish mandatory minimums considering that false accusation about crimes regulated by the Act on Aggravated Punishment of Specific Crimes is to be sentenced to more than three years in prison as compared to general criminal law. Meanwhile, due to the high degree of social blame against suspect sexual assault cases, victims of false accusation of sexual assault have fears of encountering more serious damage comparing to the victims of general false accusation cases. Despite a person getting false charge did nothing of the kind, it is true that people around him or her look on the person with prejudiced eyes as if he or she did something deserve criminal punishment or disciplinary action. Keeping victims of sexual violence from being falsely charged is important, of course, but protecting suspects charged without sexual violence is urgently needed as well. Thus, examining whether to establish a special clause such as punishing severely as compared to other false accusation is considered necessary considering characteristics of false accusation about sexual crimes if suspicion of false accusation is substantiated. Based on the critical mind, this manuscript aims to arouse caution against false accusation through severe punishment against offenders hindering judicial order, and seek individualization of treatment that reflects individual characteristics of false accusers.","PeriodicalId":307875,"journal":{"name":"LAW RESEARCH INSTITUTE CHUNGBUK NATIONAL UNIVERSITY","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128658077","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 China’s Generative AI Regulations","authors":"Sang-Woo Lee","doi":"10.34267/cbstl.2023.14.1.115","DOIUrl":"https://doi.org/10.34267/cbstl.2023.14.1.115","url":null,"abstract":"CAC on April 11 issued draft Measures to govern generative AI service provision in China. The draft Measures related to the regulation of generative AI. However, in terms of technical features(①data; ②algorithm; ③AIGC; ④forming public opinion), there are current laws and regulations(①Cybersecurity Law·Data Security Law·PIPL; ②Algorithm Regulation; ③Deepfake Regulation; ④Public Opinion Regulation). As abovementioned, China had a way to regulate generative. Nevertheless, the reason for rushing to enact the Measures is that generative AI has caused great social repercussions. China stipulates the protection of IP rights and personal information, and the prevention of monopoly of Big Tech to fill the legislative gap. A careful examination of the Measures reveals that the main purpose of enacting the Measures is not to resolve conflicts of rights. It focuses on strengthening national security in the era of the Fourth Industrial Revolution. Because, in the process of data processing using AI technology, information related to national security may be exposed, and users can make behaviors that threaten social order by distributing AIGC. In addition, China’s expert groups take it as a serious problem that the gap in AI skills between the US and China will fundamentally affect the national competitiveness of the two countries. In order for Chinese Big Tech to narrow the technological gap amid adverse circumstances the legislation and policies will have to be supported. From this point of view, it is difficult to see that the Measures is intended to add new regulations on generative AI. Rather, it can be seen as an attempt to strengthen the technological capabilities of Chinese Big Tech while maintaining the current level of regulation on generative AI. In addition, it implies the intention to use the Measures when a situation that threatens national security triggered by generative AI.","PeriodicalId":307875,"journal":{"name":"LAW RESEARCH INSTITUTE CHUNGBUK NATIONAL UNIVERSITY","volume":"378 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122724909","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":"Legal Problems on Value Reevaluation of Currently Listed Drugs from the Perspective of the Administrative Law","authors":"Goog hyun Yi","doi":"10.34267/cblj.2023.34.1.23","DOIUrl":"https://doi.org/10.34267/cblj.2023.34.1.23","url":null,"abstract":"According to the result of Value Reevaluation of Currently Listed Drugs, it is possible to adjust the notice of Drug Pricing List and the notice of Pharmaceutical Method. The Problem of determining the legal nature of these notices becomes more difficult due to its legal nature, which are open to administrative adjudication and rulemaking. By examining the laws underlying these notices, it was identified what kind of administrative action was expected to be included in these notices. And its legal nature was reviewed according to the direct subject of regulation, the case of discipline, and the person of discipline. As a result, it was determined that the notice of Drug Pricing List regarding a specific drug corresponds to a administrative adjudication, and the notice of Pharmaceutical Method regarding a specific drug corresponds to administrative rulemaking. Furhermore, these notices are subject to administrative litigation. However, the fundamental cause of these difficult problems is that the National Health Insurance Act does not adhere to the non-delegation doctrine. In addition, the inclusive attitude of the theories and precedents that made this possible also played a role. Therefore, it is necessary to go back to the principles and solve the problem.","PeriodicalId":307875,"journal":{"name":"LAW RESEARCH INSTITUTE CHUNGBUK NATIONAL UNIVERSITY","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128790724","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":"Criteria for Judging the Illegality of Restrained Transaction under the Fair Transactions in Franchise Business Act: focusing on the ʻEssential Itemsʼ","authors":"J. Kim, Dongwon Lee","doi":"10.34267/cblj.2023.34.1.197","DOIUrl":"https://doi.org/10.34267/cblj.2023.34.1.197","url":null,"abstract":"In a franchise business, the franchise fee is not only a necessary condition for establishing a franchise agreement between the franchisor and the franchisee, but also a key factor that maintains the franchise system and determines the success or failure of the business. Essential items are items that require franchisees to purchase from the franchisor or a person designated by the franchisor in order to maintain a unified image and the same quality of the franchise business. In general, in case of violation, disadvantages such as suspension of product supply or refusal to extend the contract are provided. Although the designation of these essential items and the receipt of the difference in franchise fee are not illegal as they have legal grounds, disputes related to excessive profits and essential items continue to occur. Therefore, the franchisor has an incentive to designate non-essential items as essential items in order to maintain a unified image and the same quality of franchise business. On the contrary, if the majority of raw and subsidiary materials are individually purchased by franchisees, the existence of the franchise business itself by the franchise headquarters may become impossible. However, it is not easy to review whether all essential items are illegal. Therefore, in order to resolve disputes and conflicts between franchisors and franchisees, it is necessary to closely review them by referring to adequate court decisions and precedents. In order for the franchisor to select essential items, it would be desirable to select them individually by considering the nature, characteristics, use, and function of each item, rather than applying a uniform standard for each item type. First of all, this paper proposes that the franchisors provide franchisees with proper and adequate scope of essential items for business operation. The basic concept and legal issues will be explained in Section 2. Secondly, among the unfair acts that may occur after being designated as essential items, the illegality requirements and related precedents of restrictive transactions under the Franchise Business Act will be reviewed in Section 3. Through this, it aims to clarify the standards for the requirements for determining illegality in relation to essential items to market participants, such as franchisors and franchisees, and contribute to reducing unnecessary disputes and conflicts that may occur in the course of that business.","PeriodicalId":307875,"journal":{"name":"LAW RESEARCH INSTITUTE CHUNGBUK NATIONAL UNIVERSITY","volume":"210 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127602909","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 Use of Chat GPT and Copyright Issues","authors":"Yoon-kyoung Jung","doi":"10.34267/cbstl.2023.14.1.141","DOIUrl":"https://doi.org/10.34267/cbstl.2023.14.1.141","url":null,"abstract":"The development of big data analysis and deep learning technologies triggered by the 4th industrial revolution created an opportunity to expand the scope of application and application of artificial intelligence to our lives. Beyond the level where conventional artificial intelligence was merely a means of assisting human decision-making or action, it has reached a stage where it analyzes vast amounts of data to identify problems on its own, create optimal answers, and even self-examine errors. A representative example is the Chat GPT service. Recently, however, copyright infringement disputes have been reported in this regard. For example, in January 2023, Getty Images filed a copyright infringement lawsuit against Stability AI, the developer of 'Stable Diffusion', and in April 2023, Twitter CEO Elon Musk also announced its intention to file a copyright infringement lawsuit against Microsoft (MS). In this regard, in this paper, first, as an issue derived from data use, chat GPT does not disclose how to learn data, so it is difficult to confirm whether scrolling and scraping are prohibited information has been collected, and chat GPT service is fair. It was pointed out that there are elements that are difficult to see as use, that the scope of TDM exemption is different for each country, and that TDM exemption regulations have not yet been introduced in Korea. Then, as a way to determine and protect copyright infringement of chat GPT products, first, in relation to authors and rights attribution, the contribution of artificial intelligence and humans to creation is divided and marked by stages (by year), and rights attribution must be different accordingly, second, in relation to the judgment of substantial similarity, refer to the criteria for functional works, but in the case of artificial intelligence products, there is a limit to determining whether or not copyright infringement is caused only by human feelings, so plagiarism verification or copyright infringement prevention programs must be developed and applied. Third, in relation to copyright protection institutions, it is appropriate to stipulate the protection period of artificial intelligence products at 5 years, but a two-dimensional approach must be taken so as not to reduce the incentive for human creation. Fourth, in relation to civil and criminal legal responsibilities, the Product Liability Act Referring to the provisions of the Senate Civil Act, it was proposed that artificial intelligence developers and users jointly and jointly take responsibility in principle, but that responsibilities should be assigned differentially depending on whether there was a violation of the duty of care or negligence. Based on the contents examined in this paper, it is necessary to actively seek rational and systematic ways to regulate generative artificial intelligence services.","PeriodicalId":307875,"journal":{"name":"LAW RESEARCH INSTITUTE CHUNGBUK NATIONAL UNIVERSITY","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134040147","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 use of Medical Devices for diagnosis of Oriental Medical Doctors: With a Focus on the Commentary on the Supreme Court Decision 2016Do21314 Decided December 22, 2022","authors":"Sung-eun Kim, Kyoung-hee Baek","doi":"10.34267/cbstl.2023.14.1.31","DOIUrl":"https://doi.org/10.34267/cbstl.2023.14.1.31","url":null,"abstract":"South Koreaʼs medical system is dualized into Western medicine and oriental medicine, and accordingly, the doctorʼs license and oriental medical doctorʼs license system are in operation. Until now, the Supreme Court has judged the criteria for determining whether an unlicensed medical practice is established for the use of diagnostic medical devices by oriental doctors as follows. First, the legislative purpose of the dual medical system, Second, the provisions and purposes of laws related to the medical practice, Third, the academic principles underlying the medical practice, and Fourth, the course, purpose, and appearance of the medical practice, Fifth, it is necessary to comprehensively consider whether medical schools and oriental medicine universities have secured expertise through curriculum or national tests, and to make a reasonable judgment in light of social norms. However, the recent Supreme Court's Decision 2016Do21314 Decided December 22, 2022 ruled that oriental doctorsʼs using an ultrasound diagnostic device did not constitute unlicensed medical practice. The criteria for judging the majority opinion of the en banc judgment are as follows. First, the relevant laws and regulations should prohibit oriental medical doctors from using the medical device. Second, in light of the characteristics of the device and the level of basic and professional knowledge and technology required for its use, oriental medicine doctors should use it as an auxiliary means of diagnosis. Third, in light of the circumstances, purpose, and appearance of the entire medical practice, it should be considered whether it is clear that the use of the diagnostic device by oriental doctors is irrelevant to the application and application of it based on the principle of oriental medical practice. Fourth, from the perspective of criminal justice, the meaning of oriental medical practice should be clearly and strictly interpreted from the perspective of oriental medicine doctors, it was judged that diagnostic medical devices should be excluded from criminal punishment unless it is clear that they are not related to the principle of oriental medical practice. The use of medical devices by oriental doctors presupposes or links to oriental doctorsʼ diagnosis and treatment behavior, and diagnosis has a significant role in determining whether to treat or not and setting treatment methods. This paper aims to reduce the possibility of harm associated with medical accidents and help establish a reasonable doctor and oriental medical doctor license system by comprehensively examining diagnostic medical devices that have been mainly problematic.","PeriodicalId":307875,"journal":{"name":"LAW RESEARCH INSTITUTE CHUNGBUK NATIONAL UNIVERSITY","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124999594","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}