• Informatization Policy
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• v.18 no.1
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• pp.3-23
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• 2011

With the advent of the information era, the need to protect private information has increased rapidly. Theoretical answers to this problem in jurisprudence has been pursued in various ways over the last two decades. The purpose of this study is to find the types of human rights to information and provide directions for future studies by analyzing existing research materials. About 200 materials, including theses and dissertations produced from 1988 to the present have been collected and analysed. Lessons and implications for this study for the systematization of information rights are presented. I hope this study will contribute to future studies about information rights in jurisprudence.

• The Korean Society of Law and Medicine
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• v.22 no.4
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• pp.185-210
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• 2021

On September 24, 2021, the new provisions(Article 38-2 of the Medical Service Act) mandatory CCTV installation in operating rooms where the unconscious patient is operating such as general anesthesia. The revised medical law aims to effectively prevent illegal activities that may occur in the operating rooms and to promote appropriate resolution to medical dispute. According to the law, medical institutions operating unconscious patients, such as general anesthesia, must install CCTVs in the operating rooms by September 25, 2023, and film surgical scenes only at the request of patients and their guardians, regardless of the consent of the medical personnel. The bill delegated the legislative device to minimize infringement of fundamental rights to subordinate statutes without stipulating it in the law.(Article 38-2(10)) The most realistic policy plan to minimize the infringement of the fundamental rights of patients is to prepare specific regulations. Therefore, this study examines the legislative background and main contents of the amended CCTV installation bill, and suggests issues to be reviewed when preparing subordinate statutes by analyzing major issues. It was reviewed based on compliance with the principle of minimizing infringement of fundamental rights of information subjects in the operating rooms. The information subjects of CCTV are health professionals and patients. Suggesting issues should be considered when preparing subordinate statutes so that the purpose of the CCTV installation law can be achieved while minimizing infringement of right of self-determination of personal information, personality rights, and human rights. It is hoped that this paper will be referred when discussing subordinate statutes and regulations to contribute minimizing infringement of fundamental rights.

• 정보보호뉴스
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• s.138
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• pp.58-59
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• 2009

사회가 발전함에 따라 개인정보의 의미는 인격권과 재산권이 혼재된 새로운 의미로 그 범위가 확대되고 있다. 개인정보의 범위에는 SMS, 음성통화 내역, 사진, 영상 등 개인을 식별해 프라이버시를 침해할 수 있는 정보를 비롯해 마케팅에 활용 가능한 주민등록번호, 계좌번호, 카드번호, 거래내역, 신용정보 즉, 경제적인 효용(편익)을 얻기 위해 기업에게 제공하는 식별정보 등이 모두 개인정보에 포함된다. 최근 발생한 일련의 개인정보 유출사고와 법적 공방은 개인과 관련된 다양한 정보를 보호하기 위해 기업이 추가적인 조치가 필요하다는 것을 의미한다. 하지만 기업이 개인정보를 보호하기 위해서는 기존 방화벽으로 대표되는 외부와 내부를 차단하는 보안에 대한 관점 및 체계로는 한계를 지닌다.

• Journal of Korean Library and Information Science Society
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• v.44 no.1
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• pp.333-355
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• 2013

This paper is to examine the issues of the right of portrait and to suppose practical guideline for performing arts archives. The right of portrait protects external looks of the human beings based on the constitutional human dignity, privacy of a secret and freedom. But sometimes these rights are limited in case of the right to know of the public shall have precedence to the interests of the privacy of individuals. It is hard to regard Performing Arts as a private life in two respects: first, Performing Arts is just one of societal expressions, two, performers are conducting a given role as a performing character. Producing database with the photos and videos under the reasonable agreement from the performers and making it available as a service can be disclaimers of the right of portrait. It is hard to be acknowledged, however, as disclaimers in case of being undermined sameness in the course of using the portraits of the performers.

• The Journal of the Korea Contents Association
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• v.21 no.6
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• pp.228-236
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• 2021

This research investigates the causes of infringements related to authors' moral rights which has most conflict among moral rights of authorship, through analysis of judicial precedents and compare whether there subsists any differences in viewpoints between judicial precedent trend and those on behind the scene of broadcast production. Copyright is divided into intellectual property and moral rights of authorship. Right to the integrity of the work is part of moral rights of authorship and produce one content and used in various media. When the edit is needed to fit the organization and advertisement time, advanced consultation from the rightful owner or written consent is needed. However, under the time pressure or ignorance of copyright, the arbitrary edits are made and content is used. This infringes the right of the integrity of the work. When we produce and use cinematographic works and other audiovisual works, there are considerable variablilies stemming from authorship, production cost and program staff. Therefore, prior conscent is needed to acquire and use the copyright in a proper manner. However, due to production-oriented environment and low understanding of the copyright protection, we usually depend on the users' work practices rhather than insufficiency of copyright laws in dealing with the infringement of right to the industry. In conclusion, we need to provide meticulous work manual and to focus on systematic eduction of professional copyright manpower.

• The Journal of the Korea Contents Association
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• v.16 no.1
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• pp.370-381
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• 2016

This study was designed to examine the Trends and Characteristics of Infringement of right to likeness by the Press in Korea. We did an analysis of 81 cases of the court's rulings related to Infringement of right to likeness by the Press from 1990 to 2014. As a result, it shows that the first court's ruling of portrait rights violations by the press was made in 1990. The results showed that there were the increasing number of disputing cases over Infringement of right to likeness against Broadcasting media in the 2000s compared to monthly magazines in the 1990s, which were regarded as gonzo journalism. Since the 2000s, 71% of lawsuits regarding Infringement of right to likeness has been against the Broadcasting Media due to increasing the influence of the broadcasting and possibility of Infringement of right to likeness by visual images. Especially, the number of lawsuits on infringement of rights to likeness has increased rapidly by the Broadcasting Media. Only 23 cases(28.4%) of total 81 cases were decided in favor of the press. the press shows the low success in disputing the rights of likeness. this study shows the korean courts put more weight on the right to likeness and the breaking a balance between freedom of the press and right of person's character. However, 52.9% of the cases was decided in favor of The press against the plaintiff of public figures compared to 22% against the public. It can be difficult for public figures to win lawsuit against the press causing the Infringement of right to likeness. Judging from this fact, it seemed that the court recognized media watchdog for public figures.

• Proceedings of the Korean Society of Disaster Information Conference
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• 2023.11a
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• pp.230-233
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• 2023

우리 헌법은 인간의 존엄과 가치 그리고 행복을 추구할 권리를 보장하고 있으며, 편의증진법과 교통약자법을 통해 장애인등이 교통수단, 여객시설 및 도로 등을 비장애인들과 차별 없이 이용하여 이동하고, 도로와 대중교통수단, 공공 건축물과 주거 등 생활 필수시설에 자유롭게 접근하기 위한 접근권을 보장하고 있다. 우리나라는 이동권의 보장을 편의시설 제도라는 독자적인 체계를 통해 이루어지고 있으며, 이를 실질적으로 보장하기 위하여 장애물 없는 환경 인증 제도(BF 인증제도)를 도입하였다. 시행 15년을 맞은 BF 인증제도는 양적으로는 많은 발전을 가져왔지만, 질적으로 특정 건축물 등 일부에 대한 인증 편중 현상이 있으며 안전취약계층에 대한 재해 안전확보에 대한 고려가 포함되지 않아 부진정한 이동성과 접근성의 보장이라는 한계를 가지고 있다. 이동권 보장이 얼마나 잘 이루어지느냐는 그 나라의 사회 안전망이 얼마나 잘 갖추어져 있는지 판단하는 척도라 할 것이며, 따라서 이러한 이동권 보장은 위험상태에서의 안전한 피난을 함축하고 있으며 중첩적으로 국가의 기본권 보호 의무의 이행과 관련된다. 이에 따라 이동권과 접근권의 증진을 위한 BF 인증 규정을 안전 규범으로 보완하여 장애인과 비장애인이 사회의 일원으로서 평등한 인격적 주체로 공동체에 기여하는 안전한 사회적 환경의 조성이 긴절히 요청된다고 할 수 있다.

• The Korean Society of Law and Medicine
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• v.14 no.1
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• pp.209-236
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• 2013

The concept of expectation rights considers 'the expectation' that the patient should be given proper medical treatment as the benefit and protection of the law, so it would be the benefit and protection of the law due to personal rights different from 'the legal principle that has the possibility to a considerable extent' being in an extension of life and body. However, the problem how the patient's expectation of medical service sets up in order to make it the benefit and protection of the law would be still left in the vague concept of the patient's 'expectation', thus, in the first place, the medical practice following formed medical standard in every particular medical institutes should be the standard because these medical services are normally within a range of the patients' expectations. In addition, it should be naturally constituted as mental profit to get the subjective circumstances such as 'the patient's expectation' to be an object, and also, different from the profit and protection of the law such as life and body that should be absolutely protected, the origin of violation behavior should be regarded simultaneously to define the denotation of expectation rights. Therefore, the expectation rights violations would be problematic in case it fails to reach the medical standard that is expected for common doctors to practice properly. This is the concept of expectation rights that gets subjective matters such as the patient's expectation to be objectivity as medical practices that can be expected by generalized abstract doctors. This standard should be defined as the minimum standard that is naturally expected for doctors to practice, different from medical standard that decides the level of doctors.

• The Korean Society of Law and Medicine
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• v.20 no.3
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• pp.83-139
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• 2019

Recognition of liability for damages due to medical malpractice has been developed largely on the basis of two paths. First is the case where there is an error in a physician's medical practice and this infringes upon the legal interests of life and body, and the compensation for monetary and non-monetary damages incurred from such infringement on life and body becomes an issue. Second is the case where there is a breach of a physician's duty of explanation that results in a infringement on the patient's right of autonomous decision, and the compensation for non-monetary damages incurred from such infringement becomes an issue. However, even if there is a medical error, since it is difficult to prove the causation between the medical error of a physician and the infringement upon legal interests, the physician's responsibility for damage compensation is denied in some cases. Consider, for example, a case where a patient is already in the final stage of cancer and has a very low possibility of a complete recovery even if proper treatment is received from the physician. Here, it is not appropriate to refuse recognition of any damage compensation based on the reason that the possibility of the patient dying is very high even in the absence of a medical error. This is so because, at minimum, non-monetary damage such as psychological suffering is incurred due to the physician's medical error. In such a case, our courts recognize on an exceptional basis consolation money compensation for losing the chance to receive proper treatment. However, since the theoretical system has not been established in minutiae, what comes under the benefit and protection of the law is not clearly explicated. The recent discourse on compensating for damages incurred by patients, even when the causation between the physician's medical error and infringement upon the legal interests of life and body is denied, by establishing a new legal interest is based on the "legal principle of loss of opportunity for treatment." On what should be the substance of the new legal interest, treatment possibility argument, expectation infringement argument, considerable degree of survival possibility infringement argument and loss of opportunity for treatment argument are being put forth. It is reasonable to see the substance of this protected legal interest as "the benefit of receiving treatment appropriate to the medical standard" according to the loss of opportunity for treatment argument. The above benefit to the patient is a value inherent to human dignity that should not be infringed upon or obstructed by anyone, and at the same time, it is a basic desire regarding life and a benefit worthy of protection by law. In this regard, "the benefit of receiving treatment appropriate to the medical standard" can be made concrete as one of the general personal rights related to psychological legal interest.

• The Korean Society of Law and Medicine
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• v.16 no.2
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• pp.3-26
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• 2015

Recently, Practicing of ghost surgery and duty of informed consent of doctors have become a big issue in the medical dispute and lawsuits. The ground of admitting the informed consent and the agreement(self-determination of patients) can be based on the dignity of man and the right to pursue his happiness guaranteed under Article 10 of the constitution in theory. However there are no explicit legal regulations on the duty of the informed consent and there is no substantive legal enactment on the informed consent, but there is a collision between self-determination of patients and the discretionary power of doctors. If the discretionary power on the duty of the informed consent was extended it may result in the infringement of the right of surgical patients, so called arbitrary medical treatment. Relating to this issue, New Jersey Supreme Court held that a patient has the right to determine not only whether surgery is to be performed on him, but also who shall perform it. Moreover it held that a surgeon who operates without the patient's consent engages in the unauthorized touching of another and, thus, commits a battery'. But there are no ghost surgery cases adopting battery theory in Korea, and professional negligence has been considered rather than the battery, regarding an absence of hostile intent to injure patient. Supreme Court of Korea held that a doctor who operates a medical procedure without the patient's valid prior consent based on wrong diagnosis commits professional negligence resulting in injury, and the patient's invalid consent do not preclude wrongfulness'. However, if a health care provider conducts a completely non-consensual treatment or substitute surgeon without consent, the action should be plead in battery, not negligence, but if a health care provider violate his duty of care in obtaining the consent of the patient by failing to disclosure all relevant information (risks) that a reasonable person would deem significant in making a decision to have the procedure, the action should be plead in negligence, not battery. Therefore, the scope of patients' self-determination can be protected by stating clearly the scope of the duty of the informed consent and the exemption of the informed consent legislatively, it is considered that it is valid to legislate the limitation of the discretionary power.