• 한국IT서비스학회:학술대회논문집
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• 2009.05a
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• pp.218-223
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• 2009

지난 2008년 6월 13일 개정된 '정보통신망 이용촉진 및 정보보호 등에 관한 법률'은 우리나라 IT 업계의 활성화뿐만 아니라 개인의 정보를 보호하는 제도와 절차를 규정하는 매우 중요한 법이다. 이 법은 우리사회에서 정보프라이버시의 보호와 관련하여 매우 긍정적인 역할을 수행하고 있으나, 일부 규정에서는 여전히 그 영향과 효과를 종합적으로 분석하고 검토하여야 할 여지가 있다. 이 연구에서는 관련 법제도가 IT 관련 산업과 기업에 미치는 영향을 검토하고, 법 제정시 정보보호서비스 산업의 특성(예, 공공성, 가변성, 상대성, 다차원성, 불완벽성)을 보이고, 이를 반영하여야 함을 설명하였다. 또한, 정보관리자의 책임과 과실 처벌에 관한 법규의 실효성과 형평성을 분석하였다. 법의 논리 연구, 관련된 해외 법률과 사례의 분석을 통하여 세가지 정책 대안, i) 관련 법률의 개정과 새로운 정책제도 마련, ii) 선고형에서 작량감경/집행유예 등의 적극적 적용, iii) 개인정보 관련한 기술적 관리적 조치의 합리적이고 구체적인 기준 마련을 제시하였다.

• Journal of the Korean Society of Marine Environment & Safety
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• v.11 no.2 s.23
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• pp.41-49
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• 2005

In general, the criminal responsibility of seaman should always be directly assumed by the seamen, according to the principle of self-incrimination. Therefore, the only possible countermeasures for the criminal responsibility of seamen may be to reduce the responsibility by using criminal procedures (ex. the warrant substance examination system, the review system of legality for confinement as much as possible. Another possibility is to reduce the penalty through the revision of the law. In detail, concerning the problem of fine, the maximum fine for oil spill accidents by criminal negligence is KRW 30,000,000 under the current Ocean Pollution Prevention Act, and when an oil spill occurs, the maximum fine tends to be levied regardless of the amount of the spilled oil; thus, it is judged that grading the fine according to the amount of spilled oil may be worth considering. Regarding P & I's payment of fine, contrary to general belief, it is only possible to make up the loss when P & I takes up the legal responsibility or acknowledges its payment. In order to solve the problem, it is possible to consider the option of introducing new collective insurance program or mutual aid system. Also, as seamen are not specialists in legal issues, the ship owners' association or the marine afficers' association need to develop some program through which they can receive systematic assistance from legal specialists including lawyers when they encounter any legal problems (ex. free legal aid programs for farmers and fishermen). Finally, it may be possible to establish enact new laws or revise the existing Act on Special cases Concerning the Settlement of Traffic Accidents to insert a new section on marine accidents.

• Journal of the Korean Society of Marine Environment & Safety
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• v.25 no.6
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• pp.708-716
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• 2019

After the Sewol ferry disaster, the maritime safety supervisor system was introduced to strengthen maritime safety control for coastal vessels. If any critical defect is found in vessel facilities during periodical or occasional guidance and supervision on a vessel, a maritime safety supervisor takes an administrative measure: detention of the vessel until it has been completely corrected. The detention order is one of the most powerful regulations exercised by a maritime safety supervisor. It would not be an overstatement to say that the guidance and supervision conducted by a maritime safety supervisor is very important for the safety of a vessel and protection of the maritime environment. However, the regulatory level of each Regional Office of Oceans and Fisheries toward vessels may vary with the enforcers, and an individual's intentional act or negligence might occur during the execution process. Detention of a coastal vessel by the Regional Office of Ocean and Fisheries can easily lead to delayed navigation, and a vessel owner may suffer economic loss from suspension of a charter party. Nevertheless, the Maritime Safety Act does not prescribe filing a petition for objection to the measure of detention order by a maritime safety supervisor. To overcome this problem, therefore, the objection procedure under the Maritime Safety Act has to be reformed to reclaim a right against an inappropriate detention order measure caused by an individual's intentional act or negligence through a formal objection.

• The Korean Society of Law and Medicine
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• v.21 no.1
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• pp.153-185
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• 2020

In principle, even if serious consequences such as death or serious injury of a patient occur as a result of a medical accident, if the medical malpractice of a health care worker is not recognized, the health care worker is not held liable for said consequences. However, with the opening of the Korea Medical Dispute Mediation and Arbitration Agency on April 7, 2012, a system was established to compensate health care personnel for their medical malpractices only in the case of "injuries caused by medical accidents in the course of childbirth" (hereinafter referred to as "program for compensation of medical accidents"). Article 46 paragraph 1 of the current Medical Dispute Mediation Act, which is the basis of the Force Majeure Medical Accident Compensation System, stipulates that "medical accidents under delivery" claims are to be determined by the Medical Accident Compensation Review Committee are subject to the compensation project. And the details of the compensation, ratio of sharing financial resources for compensation, scope of compensation, and the guidelines and procedure for the payment of compensations are prescribed by Presidential Decree. In other words, the Presidential Decree requires the state to pay 70 percent of the compensation funds, and 30 percent of the above funds among health care providers. The Constitutional Court has decided on the 2015Hun-Ga13 that the scope of the health care institution's founders and the share of the compensation funds cannot be directly determined by the law, and that the portion delegated by the Presidential decree does not violate the Principle of Legal Protection nor Comprehensive Nondelegation Doctrine. However, this can be seen as an exclusion of accountability for force-induced delivery accidents even if there is no negligence of the medical staff. If the nature of the system is a type of social security system with a social compensatory nature, it could consider eliminating the health care innovator's cost-sharing provisions, leaving the full cost to the state. However, it is also necessary to review institutional protocols that strengthen the efforts of medical institutions in areas such as analysis of the causes of medical accidents and measures to prevent their recurrence. In addition, I think that the conclusion of the Act is in line with the purpose of the Comprehensive Wage Support Regulations that at minimum the law sets an upper limit of the compensation funds that are to be paid by health and medical institutions. Moreover, it is reasonable for the Medical Accident Compensation Review Committee to specify gestational age and weight of births, which are the criteria for compensation, under the Enforcement Decree of the Medical Dispute Mediation Act, in relation to the criteria for payment of contributions by the Medical Accident Compensation Review Committee, and to set the detailed criteria.

• The Korean Society of Law and Medicine
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• v.19 no.2
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• pp.139-171
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• 2018

The 「Act on Remedies for Injuries from Medical Malpractice and Mediation of Medical Disputes」(hereinafter referred to as 'the Act on Mediation of Medical Disputes') provides that the state should compensate the victims of medical accidents occurred irresistibly in childbirth despite that health and medical service personnel fulfilled their duty of care for their damage within the range of its budget(Article 46 of the Act on Mediation of Medical Disputes). Given that victims of medical accidents could expect demage recovery only through lawsuits thus far, this act can be said to be a groundbreaking act. However, However, as 30% of the costs for such medical accident compensation projects are borne by those who have records of childbirth among the founders of health and medical institutions (Article 21 of the Act on Mediation of Medical Disputes), there has been a question about whether doctors are held responsible despite that the accidents such as the deaths of mothers and newborn babies occurred irresistibly without doctors' fault. However, recently, the Constitutional Court ruled that 'the range of founders of health and medical institutions' and 'share ratios of finances for compensation' in Article 46 (3) of the Act on Mediation of Medical Disputes' related to the imposition of the share of costs are institutional (Constitutional Court ruling dated April 26, 2018, 2015Heonga13, hereinafter referred to as 'the ruling in the case'). Although the ruling in the case was made based on only the principle of statutory reservation and the principle of ban on comprehensive authorization, this paper added a practical judgment. This paper proved that the share of costs in this case has the nature of burden charges in pursuit of study and does not infringe on the property rights of the founders of health medical institutions even in light of the principle of proportionality because there is a legitimate reason for imposing the burden charge. The imposition of the share of costs in the system for compensation for medical accidents occurred irresistibly is against the principle of liability with fault in part. However, the medical accident compensation projects are rational a national policy for the victims of medical accidents and the medical world clearly gains some benefits from the effect to terminate medical disputes. The expansion of finances for compensation through the payments of the share of costs will reduce the suffering and misunderstanding of victims of medical accidents occurred in the process of childbirth and will be very helpful to the construction of stable treatment environments of medical workers by quickly establishing the medical accident compensation projects as such.

• The Korean Journal of Air & Space Law and Policy
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• v.5
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• pp.265-301
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• 1993

지난 6월 3일 동경에서 있었던, 아시아 항공/우주법 학술대회 제 3분과에서 영국 Bin Cheng교수의 "The Warsaw System: Mess up, Tear up, or Shore up?"이라는 주제의 논문발표가 있었다. Bin Cheng교수는 특히 유럽의 EC Consultant Paper 와 일본항공사들의 1992년의 무한책임보상주의 채택에 대하여, 마치 무한 책임보상주의의 이론이 승리하였으며, 위의 상황들이 그 시작이라고 단정하였는데 이러한 견해는 아직까지 시기상조라고 생각한다. 본 글에서는 동경회의에서의 Bin Cheng교수의 논문중 특히 10항의 결론 부분을 중점으로 반대되는 의견을 제시하고자 한다. 국제항공사법인 와르소체제가 과연 발전하고 있는 것인가? 퇴보하고 있는 것인가? 와르소체제의 반대론자들은 미국의 소송변호사들, 일본항공사들과 일부 순수이론을 고수하는 학자들로써 이들은 와르소체제로부터의 탈퇴와 무한책임보상주의를 고수하고 있다. EC Consultation Paper (각주 122 참조)에서 보듯이, 비록 항공운송시의 손해배상액이 타 운송시의 손해배상액보다 적기는 하지만 이것이 곧 '무한책임보상주의'를 의미하는 것은 아니다. 미국의 판례중 불법행위로 인한 소송 (Nichole Fortman v. Hemeo Inc.)에서 보면, 작은 창자의 대부분을 병원의 과실때문에 잃은 Brooklin의 한 여인에게 500억 정도의 손해배상이 주어진 것을 보면, 과연 완전 보상에 맞는 무한책임이 과연 항공소송에 적용될 수 있는 것인가를 알아야 한다. 무한책임보상주의는 특히 개발도상국의 항공사들에게 보험료가 너무 과중하고, 와르소협약의 근본목적인 국제항공법의 통일성에 반하고 있기 때문에 국제사회 전반에 적용하기에는 비현실적이다. 와르소체제의 통일 성에 대한 거부는 만약 와르소체제에 버금가는 다른 보상체제가 있는 경우에는 다르지만, 현실적으로는 결국 국제적 혼란만을 야기사킬 것이다. 또한 와르소체제 반대자들은 항공운송인과 승객들의 관계를 갈등관계로 보고 있지만, 근본적으로 와프소협약에서의 항공운송인파 승객들의 관제는 공동이악관계로 보아야 한다. 항공운송사업의 목적도 또한 이윤추구인 바, 승객들이 항공운송인에게 과다한 손해배상을 요구하면, 결국 항공운송인은 승객들의 주머니에서 그 댓가를 찾으려고 할 것이다. 절국 양자의 이익을 보는 것은 소송변호사들 뿐이라고 볼 수 있다. 또한 'Unlimited Liability' 에서 'Unlimited' 란 'Full-Compensation' 을 의미하는 것으로, 'Wilful-Misconduct' 의 경우에는, 'Full-Compensation' 의 개념과 다르게, 그 보상액이 Warsaw협약 제 22조 1항에 적용되지 않는 'No-limited' 의 개념으로 해석하여야 한다. 항공소송의 경우에 통상 'Wilful-Misconduct' 의 경우에 손해배상액이 약 $700,000 인 것을 보더라도 'Full-Compensation'의 의미로 해석할 수 없다. 몬트리올 제 3추가의정서에서 'WilfulMisconduct' 의 개념을 삭제하고자 하는 것은, 이에 대비하여 추가보상제도, 임액수의 종액, 영격책임추의 등의 요소들을 전제로 하고 있기 때문이다. 몬트리올 제 3추가의정서가 최근의 발전적인 손해배상제도인가에 대하여, Bin Cheng 교수는 반대를 하고 있지만, 최선의 제도를 찾는 입장에서 몬트리올 추가 의정서는 여러가지로 부족하다. 그러나, 유한책임제도의 개선, 엄격책임주의의 도입, 빠른 소송타결의 제도, 재판관할권의 확대 그리고, SDR 화폐단위의 채택 등은 헤이그 의정서 이후의 보다 나은 제도적 장치를 하고 있다고 해석하여야 할 것이다. 시대의 변화에 따라 점진적으로 발전된 보상제도를 채택하였다면, 오늘날과 같이 시대에 뒤떨어진 보상체제로 혼란을 겪고 있지 않았을 것이다.

• Journal of the Korean Society of Marine Environment & Safety
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• v.26 no.4
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• pp.353-365
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• 2020

The quantitative increase in maritime transport for domestic and foreign trade is one of the main reasons for the increase in marine pollution accidents. Despite the implementation of relevant laws in each country to prevent and mitigate marine pollution accidents caused by ships, human negligence (carelessness, intention, etc.) by ship workers has been reported as the biggest cause of marine pollution accidents. One of the most effective ways to reduce marine pollution accidents caused by ships is to reduce human negligence through systematic education and training of ship workers. Therefore, this study aimed to review the appropriateness of the statutory education and training curriculum for ship marine pollution prevention managers in accordance with domestic laws and regulations such as the 「Marine Environment Management Act」 and suggest improvement measures. To this end, we compared and analyzed the legal training·general education courses related to the prevention of marine pollution and marine disasters in Japan, where the laws and systems are similar to Korea, and investigated the cases of legal training for experts in land pollution prevention in Korea.

• The Korean Society of Law and Medicine
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• v.19 no.1
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• pp.113-142
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• 2018

In recent years, there have been opinions in which physicians are liable to the revocation of their medical license if they are sentenced to above a certain level for criminal charges regardless of the types of offenses. Accordingly, a revised bill of law was submitted in the National Assembly, and related discussions are thus expected to commence. Considering the morality and ethics or the level of the rule of law that the general public expects of physicians, as well as the license revocation system in other professional sectors, it is assessed that medical license revocation due to criminal convictions of physicians is appropriate to some degree. However, if a poorly devised system is established based on unrefined inferences or emotional judgements, unexpected side-effects are likely to arise. With regard to serious criminal acts that society generally perceives as unacceptable, it can be assessed that the revocation of physicians' licenses would appropriately protect the general public from threats. However, given the life-saving characteristics of high-risk medical practices, higher malpractice exposures, and social values, it is difficult to assess charges of professional negligence resulting in death(or in injury) and minor offences in the same manner as anti-social criminal offences are handled. Physicians need to be treated the same as any other professions. At the same time, they are engaged in administering medical treatment to patients in the face of great risks as professionals. Under the circumstances, a discussion on the introduction of a more specific and empirical system is needed by considering the intrinsic characteristics of medical treatment and the need for an equitable health and medical policy. Accordingly, based on the above judgment and perception, this study explores the code of ethics for physicians and medical license revocation related to criminal offences at home and abroad, and examines various legislative alternatives appropriate for the Republic of Korea. In doing so, the purpose of the study is to contribute to the development of a reasonable system for handling criminal offences by physicians.

• Korean Journal of Plant Resources
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• v.19 no.1
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• pp.105-111
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• 2006

The objectives of this study, an analysis of fruit and leaf morphological characteristics among the five Zizyphus cultivars could be used for the investigation of cultivars classification and could provide information to make out the UPOV TG(Test Guidelines). ANOVA tests showed that there were statistically significant differences in all fruit and leaf morphological characteristics among the five Zizyphus cultivars at 1% level. But, for kernel characteristics, differences were statistically non-significant among the cultivars. Approximately, the Wolchul and Boeun cultivars showed larger and smaller values in overall characteristics and cultivars, respectively. The results of principal component analysis(PCA) for the fruit and leaf morphological characteristics showed that the first for principal components(PC's) explained about 65.3% of the total variation. The first PC was correlated with those characteristics that were mainly related to the terminal leaf length(TLL), leaf length(LL), fruit length(FL), terminal leaf width(TLW), and leaf petiole length(LPL). The second and third PC was mainly correlated with the terminal leaf morphological index(TLMI). Therefore, these characteristics were important to analysis of the fruit and leaf morphological characteristics and classification among the five Zizyphus cultivars. Cluster analysis using UPGMA method based on principal components showed that five Zizyphus cultivars could be clustered into two groups. Group I comprises Mudung, Wolchul, and Bokjo and Geumsung cultivars, Group II is Boeun cultivar. These results well similar to that of principal component analysis.

• The Korean Society of Law and Medicine
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• v.19 no.2
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• pp.3-40
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• 2018

Conventionally, there were few cases in which a medical accident became a criminal case in Japan. However, after the serious malpractice such as the Yokohama City University Hospital case, prosecutors came to be less hesitant to prosecute a malpractice. In a medical accident, the attribution of the responsibilities among medical personnel becomes one important element of the proof of negligence. The Supreme Court concluded that, when the attribution of the responsibilities is not established among medical personnel to confirm the identity of the patient like the Yokohama City University Hospital case, all the personnel who were involved bear the responsibilities to identify the patient. For serious cases which requireut most carefulness fortreatment such as the Saitama Medical University Hospital case, not only the chief physician in charge of the case concerned but also the director of the branch at the university hospital bear the responsibilities to confirm the treatment policy of the case. After the acquittal of the Ohno Hospital case, the voice demanding more prudent prosecution of malpractices has become stronger than before. Meanwhile, Ministry of Health, Labour and Welfare introduced Medical Accidents Investigation System for the prevention of medical accident and, has reinforced the third party inspection of medical accidents.