• Journal of Korean Society of Transportation
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• v.20 no.3
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• pp.179-192
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• 2002

주차금지, 일방통행. 본 논문에서의 횡단보도와 같은 교통표지는 개별적 행위로서 행정행위가 아니라 불특정 다수의 행위를 추상적으로 규율하는 특성을 지닌다. 현행 도로교통법상 횡단보도의 설치여부는 지방경찰청장의 재량 사항으로 규정되어 있어 경찰이 횡단보도를 새로 설치하거나 기존의 횡단보도를 폐지하는 경우 관할 경찰청은 물론 관계 행정청에 이를 설치 혹은 폐지해달라는 민원이 매우 많아 일선 경찰공무원 등이 많은 애로를 느끼고 있으며 급기야는 본고에서 검토할 사례의 경우와 같이 행정소송을 통해 뜻을 관철하고자 하는 경우까지 생겼다. 횡단보도의 설치와 관련한 대법원 판결(대법원 2000.10.27.선고, 98두8964판결)이 이제 처음 나왔지만 시민의 권리의식의 향상에 따른 소송의 증가경향으로 미루어 앞으로 이와 유사한 문제제기는 더욱 늘어날 것으로 전망된다. 이에 본고에서는 횡단보도의 설치와 관련한 행정소송에 대한 최근 대법원판결에 대한 심층분석을 통하여 그 의미와 문제점을 지적함으로써 앞으로 이와 유사한 사례에 대한 판단에 있어 방향성을 제시하였다. 즉 횡단보도 설치행위의 적법성과 관련한 소송에서 가능한 본안심리를 통해 국민의 권익구제의 기회 내지 가능성을 열어주는 것이 바람직하다는 점과 현재 원고적격의 범위가 확대되어 가고 있는 추세에 비추어 앞으로 횡단보도의 설치와 관련한 원고적격의 범위 역시 확대되는 것이 바람직하다는 방향에서 법규정에 대한 새로운 해석을 시도하였고 이를 통해 횡단보도의 설치 및 폐지에 따른 경찰 등 관계 행정청의 관심과 신중을 촉구하였다. 또한 횡단보도 설치행위의 처분성과 관련하여 횡단보도의 설치행위와 같은 일반적인 명령을 항고소송의 대상으로 할 필요성이 존재한다면 이른바 독일에서의 일반처분이라는 개념을 무리하게 받아들여 이를 행정행위의 한 유형으로 한다거나 우리 판례와 같이 "직접적이고 구체적인 법적 효과"를 미치는 명령이라는 명확치 않은 기준에 의하여 처분성을 인정하기보다는 일반적인 명령과 개별적인 행정행위를 구분하고 명령에 대하여도 취소소송의 대상으로 삼도록 하는 보다 명확하고 일관성 있는 논의전개를 제안하였다.

• The Journal of the Korea Contents Association
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• v.17 no.4
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• pp.209-218
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• 2017

In Korea, child abuse in child care centers occurs continuously, and it is becoming a social problem. The government has intensified the supervision of management in child care centers, and through strong countermeasures and prevention against child abuse, it enacted the special act on child abuse in oder to enable children to become healthy members of society. In this study, this researcher gasped the legal application on child abusers, and analysed how the punishment for abusers changed according to the application of the special act on child abuse, through examining precedents of child abuse in child care centers. 21 cases related to child abuse cases were collected by searching homepage of the supreme court and each district court in this study. As a result of analyzing the precedents, the sentence of the defendant did not increase greatly, and it differed from the criminal identification of the people in cases of child abuse on which the special act on child abuse was applied. Therefore, it can be seen that there is a demand for more rigorous legal application for abusers in order to prevent child abuse in child care centers.

• Journal of Arbitration Studies
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• v.21 no.3
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• pp.3-20
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• 2011

An arbitrator is an impartial person chosen to decide the issue between parties engaged in a dispute. But the arbitrator appointed by a party or arbitration institution shall be impartial or independent and should disclose to the administrator any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. If, at any stage during the arbitration, new circumstances arise that may give rise to such doubts, the arbitrator shall promptly disclose such circumstances to the parties and to the administrator. Upon receipt of such information from an arbitrator or a party, an party must challenge any arbitrator whenever circumstances exist that give rise to justifiable doubts as to arbitrator's impartiality or independence. Under these circumstance, there were two cases declared by the Korean Supreme Court in relation to the cancellation of the arbitration award. One arbitral case was cancelled for the reason of the having been arbitral procedure without disclosure arbitrator's impartiality, and the other case was refused to cancel the ward for the reason of the having been arbitral procedure without challenge an arbitrator. There are not, however, the standard to decide what is definitely the arbitrator's impartiality or independence and the difference on qualification between arbitrator chosen by an party and neutral arbitrator in korean arbitration law and rules. Nevertheless, korean court require arbitrator to be impartial and independent and the arbitration parties to challenge arbitrator' impartiality or independence.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.49
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• pp.61-86
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• 2011

Korea Supreme Court has given thirty-nine time's judgments on enforcement of Arbitral awards for thirty-six arbitration cases and made four time's decision on the arbitration cases since Korea arbitration act was enacted in 1966. Most of the arbitration cases appealed to the Supreme Court was to obtain the recognition and enforcement of arbitral awards or to set aside the arbitral awards according to the Korea arbitration Act article 36 and article 37, by reason of (a) a party to the arbitration agreement was under some incapacity under the law applicable to him or the said agreement is not valid under the law to which the parties have subjected it, or failing any indication thereon, (b) a party making the application was not given proper notice of the appointment of the arbitrator or arbitrators or of the arbitral proceedings or was otherwise unable to present his case (c) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration. However, 5 cases of these arbitral awards were refused to obtain the enforcement of Arbitral awards and have been cancelled finally by the Supreme Court only by the New York Convention of 1958.

• Journal of Software Assessment and Valuation
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• v.15 no.2
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• pp.17-24
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• 2019

Use without permission of font files is a social problem. In the meantime, our court recognized font files as computer programs. Is the font file a computer program? This recognition arises from the inability to distinguish between computer programs and data. Expert recognition, on the other hand, does not recognize font files as computer programs. In this regard, there was a case in 2014 that INI files were not computer programs, but only data files. So, the attitude of the Supreme Court in 2001 only makes it difficult to distinguish between computer programs and data. The Supreme Court's decision needs to be changed. In addition, a new legal system should be in place to protect font files.

• Journal of Environmental Policy
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• v.7 no.3
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• pp.63-88
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• 2008

In this treatise I have advanced a theory to regulate legal problems rationally arising from a right to a view and I have checked some precedents dealing with the temporary injunction, compensation for damage and the demolition of a house(mainly apartment) owing to an infringement of a right to a view. Relating to an infringement of a right to a view, there are more lawsuits which are instituted together with an infringement of a right to enjoy sunshine than lawsuits related only to the right to a view. In the cases of an infringement of a right to a view connects with educational or religious environment, the court made it a decision that the construction is prohibited from constructing more than a certain-story building to protect a right to a view. Plaintiffs won a case their suit in the original judgement regarding a claim for damages owing to an infringement of a right to a view, but the Supreme Court reversed the decision of a lower court. The right to a sky view should not be infringed in case of a dwelling house which is not built for the purpose of business or a view.

• Proceedings of the Korean Society of Computer Information Conference
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• 2016.07a
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• pp.141-143
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• 2016

2016년 5월 19일 대법원은 전원합의체판결에서 부동산 매수자가 본인 명의로 소유권이전등기를 하지 않고 등기를 매도인에게서 직접 명의수탁자로 이전하는 제3자간 명의신탁(중간생략등기형 명의신탁)의 경우 명의수탁자가 신탁부동산을 임의로 처분하여도 형사처벌를 할 수 없다는 판결을 하였다. 본 논문에서는 민법과 형법의 교차영역인 명의신탁에서 민사사건의 형사화를 지양했다는 점에서 긍정적인 평가를 하지만 이에 따른 관련법의 정비를 통한 법개정을 제안한다. 즉, 명의신탁에 관한 법제 간 모순을 극복하기 위해 '부동산 실권리자명의 등기에 관한 법률'의 개정이 요구된다. 또한 부동산소유자가 그 등기명의를 타인에게 신탁하기로 하는 명의신탁약정을 맺고 그 등기명의를 명의수탁자에게 이전하는 소위 2자간 명의신탁의 경우도 비범죄화를 함으로써 법체계의 논리성과 통일성을 확보할 필요가 있다.

• The Korean Society of Law and Medicine
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• v.14 no.2
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• pp.281-313
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• 2013

A physician has to do his best for the better treatment of his patiensts. But, if a physician cannot remedy his patients because of the lack of hospital facilities, the lack of medical knowledge and etc., the physician must transfer his patients to another suitable hospital immediately. This is called the duty of interhospital transfer of patients. The necessity of interhospital transfer of patients is primarily ocurred in emergency medical care situations. The Supreme Court Decision 2010DO7070 delivered on April 29, 2010 is one of the important decisions related to the duty of interhospital transfer of patients. The Supreme Court ruled that there were the physician's medical malpractice and the causation between the physician's medical malpractice and the death of patient, as the physician has left the patient without due observations for 1 hour and 30 minutes after the caesarean operation inspite of mass bleeding during the operation, and has transferred the patient to another suitable hospital later. And the Supreme Court ruled that the transferring physician has to explain the situation of the patient in detail to the physician being transferred. I agree with the Supreme Court Decision. As decided by the Supreme Court, physicians will treat their patients more carefully and in case of necessity for transfer, physicians will transfer their patients with more caustion. However, the study for this issue should be continued hereafter because concrete standards are not given to lawers and physicians just by the Supreme Court Decisions itself.

• Korean Journal of Comparative Education
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• v.22 no.4
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• pp.149-178
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• 2012

The initial purpose of Affirmative Action(AA) in the U. S. was to increase access to, and ensure the equitable distribution of, opportunities for racial minority groups in order to redress past discrimination. Over the last several decades, support for AA has grown and waned as structural, political and social currents have shifted. Most recently, AA in university admissions policy was once again tested as The University of Texas at Austin successfully defended its use of AA in admissions and now faces Supreme Court review concerning the lawsuit. Fisher v. University of Texas at Austin. The purpose of this study is to illustrate the evolution of AA in university admissions reflected on major legal cases for and against it. AA is analyzed from the integrative approach based on the historical institutionalism. l.e., influenced by structure, political dynamics, institutions and critical actors.

• The Korean Society of Law and Medicine
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• v.18 no.2
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• pp.3-46
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• 2017

Physician's Duty of Information is classified into three categories by legal function: 'Duty of Information to Report' to fulfill the patient's right to know; 'Duty of Information to Guide' patient's convalescing and staying healthy; 'Duty of Information to Contribute' to patient's self-determination. We classify the physician's duty of information because the legal effect from the breach of duty varies accordingly. The legal effect is focused on damage compensation responsibility for breach of duty. When a physician violates 'Duty of Information to Report', he subjects himself to liability of compensation for infringing on the patient's 'Right to Know'. When a physician violates 'Duty of Information to Guide', she subjects herself to liability for general medical malpractice. Finally, when a physician violates 'Duty of Information to Contribute', the physician is basically liable for violation of the patient's 'Right to Self- Determination' which refers to infringement on freedom of choice. However, in the case of situation that patient's refusal to the medical treatment would be presumed, the physician bears all liability for the patient's damage which includes both of property and mental damage.