• The Journal of the Korea Contents Association
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• v.14 no.3
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• pp.176-185
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• 2014

This study deals with the precedents regarding music works among 'The suits to claim an infringement of copyright' and 'Suits to claim indemnification for damage' that have been filed in Korea up so far in order to establish clear criteria to judge plagiarism based on the ground of legal judgment and judge the similarity of two works that have been in controversy previously. The study has been performed through literature review and also precedents. According to the study result, 'criteria to judge music works on plagiarism' are largely classified into (1) creativity, (2) access, and (3) substantial similarity. It is almost the same to judge creativity and substantial similarity. With the components of music works, say, melody, harmony, and rhythm, comparative analysis is conducted. About creativity, the original composer's song is analyzed with another object to be compared whereas about substantial similarity, two songs in controversy get to be analyzed. Regarding the current criteria to judge creativity, it is needed to set the number of objects to be compared which have been regarded similar. And access has limitations in setting up objective criteria for it. Lastly, we should develop digitized criteria for substantial similarity based on the preliminary review system of the Committee on Performance Ethics in the past.

• The Korean Society of Law and Medicine
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• v.24 no.4
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• pp.3-36
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• 2023

The main issue in medical malpractice civil litigation is medical negligence and the causal relationship between medical negligence and damages. Regarding the presumption of causality in cases where medical negligence is proven, there is a previous Supreme Court decision 93da52402 on February 10, 1995, but it is difficult to find a case that satisfies the textual requirements of the above decision, and yet, in practice, the above decision is cited. In many cases, causal relationships were assumed, and criticism was consistently raised that it was inconsistent with the text of the above judgment. In its ruling, the Supreme Court reorganized and presented a new legal principle regarding the presumption of causality when medical negligence is proven in a civil lawsuit. According to this, If the patient proves ① the existence of an act that is assessed as a medical negligence, that is, a violation of the duty of care required of an ordinary medical professional at the level of medical care practiced in the field of clinical medicine at the time of medical practice, and ② that the negligence is likely to cause damages to the patient, the burden of proving the causal relationship is alleviated by presuming a causal relationship between medical negligence and damage. Here, the probability of occurrence of damage does not need to be proven beyond doubt from a natural scientific or medical perspective, but if recognizing the causal relationship between the negligence and the damage does not comply with medical principles or if there is a vague possibility that the negligence will cause damage, causality cannot be considered proven. Meanwhile, even if a causal relationship between medical negligence and damage is presumed, the party that performed the medical treatment can overturn the presumption by proving that the patient's damage was not caused by medical negligence. Meanwhile, unlike civil cases, the standard is 'proof beyond reasonable doubt' in criminal cases, and the legal principle of presuming causality does not apply. Accordingly, in a criminal case of professional negligence manslaughter that was decided on the same day regarding the same medical accident, the case was overturned and remanded for not guilty due to lack of proof of a causal relationship between medical negligence and death. The above criminal ruling is a ruling that states that even if 'professional negligence' is recognized in a criminal case related to medical malpractice, the person should not be judged guilty if there is a lack of clear proof of 'causal relationship'.

• Korean journal of communication and information
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• v.38
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• pp.211-244
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• 2007

Article 17 and 18 of the Korean Constitution respectively prescribe the violation of individual's right to privacy and the secrecy of wire communication. Meanwhile, Article 20 of the Criminal Code provides that an act which is conducted within the ambit of laws or pursuant to accepted business practices or which does not violate the social norms shall not be punishable. In 1999, the Constitutional Court held that media reports on public matters of public figures must be given strong constitutional protection, and treated differently from reports on private matters of private figures. In accordance with the decision, the Supreme Court has expanded the scope of constitutional guarantee of freedom of expression since 2002. This study analyzes the issue of media liability for publication of illegally intercepted wire communication by a third person. Particularly, it reviews Seoul High Court's ruling on 'X-file scandal' which disclosed intercepted wire communications between notable public figures regarding a slush fund for a presidential candidate. In the light of this analysis, the study concludes that the media reporting of the intercepted communication does not violate social norms of Article 20, and therefore it is entitled to a constitutional privilege.

• 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.

• Journal of Legislation Research
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• no.54
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• pp.303-343
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• 2018

In 2013 a new era for EU patent law system was launched. The creation of the EU patent with unitary effect and the establishment of the Unified Patent Court established a new legal framework on substantive patent protection and patent litigation in Europe. This year the EU Patent Package would become a reality. It includes a regulation on a unitary patent, a regulation on the translation regime and an international Agreement on the Unitary Patent Court. In contrast to the classical European patent, the post-grant life of unitary patent will be governed by the newly created unified patent court and it will have unitary effect. In this article, I highlight the effect of the unitary patent and the jurisdiction of the unified patent court over unitary patents (and 'traditional' patents granted under the EPC that are not opted-out) for actions in relation to patent infringement or to revocation of a European patent and to licences of right. This article explores on the one hand the relation between national patent, the classical European patent and EU patent with unitary effect and on the other hand the relation of unified patent court to the Brussels $I^{bis}$ Regulation. Particular attention is paid to the institutional changes created by the unitary patent package abd the new supplementary forum that enables the UPC to hear disputes involving defendants from third States that relate to an infringement of a European patent and give rise to damage inside as well as outside the Union. Furthermore on the perspective North-east Asia this essay examines the lessons from the experiences of EU patent package.

• Proceedings of the Korea Technology Innovation Society Conference
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• 2000.05a
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• pp.321-337
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• 2000

인터넷 비지니스가 중요한 경쟁요소로 발돋음하고 있는 현재의 시점에서 인터넷 비즈니스 모델에 특허권을 부여한다는 것은 비슷한 성격을 가진 타 경쟁업체의 경쟁력을 약화시키고 이를 포기하도록 의도하는 독점적 전략의 일종이다. 미국에서는 Statestreet 사건을 비롯한 일련의 BM 특허에 관한 소송이 제기되어 이미 BM 특허를 인정하고 있는 상황이며 이를 기점으로 BM 특허권을 인정하는 것이 대세로 되고 있다. 기존의 특허와 다른 양상을 갖고 있는 BM 특허는 새로운 아이디어를 중심으로 그 사업성을 인정받는 영업 모델 특허인데 이는 현재 독점과 관련한 부정적인 인식으로 그 특허의 타당성과 특허보호기간 적용문제가 논란이 되고 있다. 외국의 특허로부터 국내 인터넷 사업을 보호하기 위하여 정부차원에서의 특허 인정 노력이 필요하지만 인터넷 사업의 경쟁력 있는 활성화를 위해서는 특허보호기간이 현행 20년보다 축소해야 한다는 반발도 만만치 않다. 인터넷 비지니스 후발주자인 한국은 서두르지 않으면 치열한 인터넷 경쟁에서 뒤쳐질 위험을 안고 있다. 선발주자들의 경쟁우위 전략을 따라잡기 위해서는 인터넷 비즈니스 전반에 대한 경쟁력 확보와 함께 BM 특허에 관한 준비와 활성화 계획을 철저히 마련하는 것이 중요하다. 그리하여 우리 나라의 인터넷 비즈니스 모델이 cyber market에서 공격성과 방어성을 모두 갖춘 우수한 모델로 키워나가야 한다.

• Review of KIISC
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• v.18 no.1
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• pp.49-61
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• 2008

최근 소송에서의 디지털 증거의 비중과 수사과정에서의 디지털 포렌식의 중요성과 관심이 높아지고 있으며, 미국을 포함한 여러 국가들은 이러한 추세를 반영하여 효과적인 디지털 증거 수집과 분석을 위한 법제들을 마련하고 있는 상황이다. 국내의 경우도 디지털 포렌식 기술에 대한 관심과 실제 사건해결에 있어서의 이용도가 높아지고 있음에도 아직까지 관련 법제들은 미비한 상황이다. 본고에서는 먼저 '국가 디지털 포렌식 법률 체계'를 제시하고 각각의 구성요소들에 대해 살펴 본 후, 국가 디지털 포렌식 법률 체계에 기반하여 미국의 법제 현황과 국내 법제 현황을 비교한다. 또한 디지털 포렌식 수행 절차에 따른 법적 요구사항들을 정의해보고, 국가 디지털 포렌식 법률 체계 완성을 위한 추진방안을 제시한다. 마지막으로 효과적인 디지털 증거의 수집 분석과 디지털 포렌식 기술 활성화를 위해 국내 법제들이 나아가야 할 방향과 추진방법을 제시한다.

• The Journal of the Korea Contents Association
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• v.15 no.9
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• pp.126-133
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• 2015

According to the traditional precedent, if a beneficiary who completed a provisional registration as a result of reservation of trade which is a fraudulent act, then assigned the right acquired by the provisional registration to the third party who has no information of the process, and let the third party complete an additional registration transfer the provisional registration, and if the third party completed the main registration on the foundation of the provisional registration, the beneficiary cannot be the other party of the litigation requesting for the cancellation of registration of the provisional registration. As the result, an apprehension that the duty to recovery of the beneficiary could easily be acquitted of a charge has existed. But, it is considered as desirable that the judicial decision judged that the court recognized the qualification of the defendant as appropriate at this case, with a different view from the precedent, and then the defendant can file the litigation against the beneficiary, requesting for cancellation of the reservation of trade which is a fraudulent act.

• Journal of Digital Convergence
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• v.14 no.9
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• pp.447-452
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• 2016

Designers need to manage their copyrights. Designers be placed in both situations. The two situations is sometimes the case that infringes their copyrights and infringes the copyrights of others. But most designers do not know what to do to deal with this situation. Designers have to judge a lot of things for themselves. Designers should inform the user that you have infringed my copyright. And they will have to think about the legal proceedings. This paper was written based on the legal process, conducted from 2012 to 2014. Copyright infringement countermeasures for designers through this case were investigated. And to organize a correspondence course was organized personal correspondence, legal action, ruling process. The study of the processes for copyright holders themselves to respond to the piracy situation is needed.

• The Korean Journal of Air & Space Law and Policy
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• v.31 no.2
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• pp.3-35
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• 2016

The United States Constitution gives power to the federal district courts to hear admiralty cases. 28 U.S.C. §.133, which states that "The district courts shall have original jurisdiction, exclusive of the Courts of the States, of any civil case of admiralty or maritime jurisdiction." However, the determination of whether a case is about admiralty or maritime so that triggers admiralty jurisdiction was not a simple question. Through numerous legal precedents, the courts have drawn a line to clarify the boundary of admiralty cases. This unique jurisdiction is not determined by the mere involvement of a vessel in the case or even by the occurrence of an event on a waterway. As a general rule, a case is within admiralty jurisdiction if it arises from an accident on the navigable waters of the United States (locus test) and involves some aspect of maritime commerce (nexus test). With regarding to the maritime nexus requirement, the US Supreme Court case, Executive Jet Aviation, Inc. v. City of Cleveland, held that federal courts lacked admiralty jurisdiction over an aviation tort claim where a plane during a flight wholly within the US crashed in Lake Erie. Although maritime locus was present, the Court excluded admiralty jurisdiction because the incident was "only fortuitously and incidentally connected to navigable waters" and bore "no relationship to traditional maritime activity." However, this historical case left a milestone question: whether an aircraft disaster occurred on navigable water triggers the admiralty jurisdiction, only for the reason that it was for international transportation? This article is to explore the meaning of admiralty jurisdiction over aviation accidents at US courts. Given that the aircraft engaged in transportation of passenger and goods as the vessels did in the past, the aviation has been linked closely with the traditional maritime activities. From this view, this article reviews a decision delivered by the Seventh Circuit regarding the aviation accident occurred on July 6, 2013 at San Francisco International Airport.