• International Journal of Computer Science & Network Security
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• v.21 no.5
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• pp.237-242
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• 2021

The article deals with the problematic issues of defining information as an object of private relations. Definitions that they are intangible and non-consumable by nature, are inextricably linked to a specific material carrier are/or secured by the subject that transmits them, messages, and information that have quantitative and qualitative characteristics, and are capable of having a freight or another value, and in case of its illegal usage causing damage and moral harm.

• The Korean Society of Law and Medicine
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• v.10 no.1
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• pp.39-75
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• 2009

The development of the biomedical science and technology has extended an argument about a status in constitutional law of unborn human life and a protection of the potential human life to that of an embryo and a gamete beyond a fetus. This argument has been focused on whether we should provide unborn or potential human life with human dignity and the right to life that are guaranteed by the constitutional law altogether or separately. If the right to life is given to unborn or potential human life, on what grounds can we restrict this right. Those who argue for the unity of the right to life with human dignity and the inseparability of those two claims that the right to life in itself should be guaranteed absolutely. According to the constitutional law, however, any constitutional right of the human person within the protection of essential part of the right can be compared with each other and restricted with some valid reasons from the legal perspective. This measure is unavoidable in reality because one right can come into conflict with another right frequently. Since fetus and embryo are in a process of developing into the human person, it is difficult to think that they are the same with the human person. For that reason, it is hard to consider that the right to life of fetus or embryo is the same with that of the human person. However, since a fetus has a special status as a potential human person, and an embryo also has a special value as a potential fetus upon an implantation, the right to life of fetus or embryo should be judged differently according to the stage of their development. A study on a constitutional status and protection of a fetus and an embryo is essential because unborn or potential human life is the origin of human person. Therefore, we have to make much account of their right to life and seek the legal respect for their inherent value.

• The Korean Society of Law and Medicine
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• v.20 no.2
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• pp.3-39
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• 2019

Even after the Constitutional Court decided on August 23, 2012 that the provisions of abortion were constitutional, discussions on the abolition of abortion continued. The controversy about abortion is not only happening recently, but it has already existed since the time when the Penal Code was enacted, and it shares the history of modern legislation with the Republic of Korea. Legislators whom submitted amendment while insisting upon the eradication of abortion in the process of enacting criminal law at that time, presented social and economic adaptation reasons as the core reason. From then on, the abolition of abortion has been discussed during the development dictatorship, but this was not intended to guarantee women's human rights, but it was closely connected to the national policy projects of "Contraception" and "Family Planning" of the Park's dictatorship. Since then, the enactment of the Mother and Child Health Law, which restrictively allow artificial abortion, was held on February 8, 1973, in an emergency cabinet meeting that replaced the legislative power after the National Assembly was disbanded. It became effected May 10th. The reason behind the Mother and Child Health Law that included legalization of abortion in part was that the Revitalizing Reform at that time did not allow any opinion, so it seem to be it was difficult for the religious to express opposition. The "Maternal and Child Health Law" enacted in this way has been maintained through several amendments. It can be seen that the question of maintenance of abortion has been running on parallel lines without any significant difference from the time when the Penal Code was enacted. On August 23, 2012, the Constitutional Court decided that the Constitutional Opinion and the unonstitutional Opinion were 4: 4. However, it was decided by the Constitution without satisfying the quorum for unconstitutional decision of the Constitutional Court. This argument about abolition of abortion is settled for the the time being with the decision of the constitutional inconsistency of the Constitutional Court, and now, the National Assembly bears the issue of new legislation. In other words, the improved legislation must be executed until December 31, 2020, and if the previous improved legislation is not implemented, the crime of abortion (Article 269, Paragraph 1, Article 270 of the Criminal Code) Article 1 (1) will cease to be effective from 1 January 2021. Therefore, in the following, we will look into the reason of the Constitutional Court's constitutional discordance adjudication on criminal abortion(II), and how it structurally differs from the previous Constitutional Court and the Supreme Court. After considering key issues arised from the constitutional discordance adjudication(III), the legislative direction and within the scope of legislative discretion in accordance with the criteria presented by the Constitutional Court We reviewed the proposed revisions to the Penal Code and the Mather and Child Health Act of Korea(IV).

• Korean Journal of Social Welfare
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• v.58 no.1
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• pp.395-423
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• 2006

The purpose of this study was to investigate the various contents of legal life's conflicts and constitutional applications by analysing on the constitutional judicial precedents regarding to social welfare law. The total cases of constitutional precedents are 62 totally, and 22 precedents among 62 are analysed through content analysis. These 22 constitutional precedents consist of nine cases of concerning Social Insurance Act, six cases in National Pension Act, two cases in National Basic Livelihood Protection Act and one cases in Social Welfare and Service Act. The major contents of these precedents are regarding to operational principles of social insurance system, rule of entitlements, benefits, social welfare organizations and the constitutional right such as property right, equal right, right of happiness. And also there are precedents to review how the rule of Act is interpreted or how the process of right protection is. Findings in this study show that Korean Constitutional Law has characteristics of welfare nationalism and social capital economics orientations, and sanctions legislation and administration discretion.

• Analyses & Alternatives
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• v.2 no.1
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• pp.71-106
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• 2018

The 19th CPC National Congress has a key historical significance in the development of China's constitution. It will also play a decisive role in the history of the seventy years'constitutional change in New China. XiJinping's new socialist thought with Chinese characteristics established in the report of 19th CPC National Congress will be written in the preface of the March 2018 National People's Congress's constitutional amendment. The fifth revision of 1982 Constitution will touch on many issues such as the leadership of the CPC into the constitution, the abolition of the tenure of the president, the constitutional oath system, and the reform of the national supervisory system. In addition, the constitutionality review system, the establishment of the National Security Council, the constitutional status of socialist public property and private property and the adjustment of major economic system has become a hot topic in the theory field. In the history node towards a socialist country ruled by law, the theory and practice of the China indeed have the academic ideas, value position and path model differences, which will delay the Chinese constitutional development, but also is the necessary pain in the process of moving towards the rule of law in China. Indeed, how to the development and where to go in the future of Chinese constitutionalism itself has sample value, which deserves rational attention and in-depth inquiry from Chinese and Western academics.

• The Korean Society of Law and Medicine
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• v.11 no.1
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• pp.243-270
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• 2010

Under the existing law, an act included in medical practice by medical personnel seems to be irrelevant to whether the act concerned in the "Life World" is in the category of medical practice. In spite of the act having been done according to the custom for a long time, and generally done by individuals in the "Life World", these kinds of acts have been banned by law, because if these acts were done by the general individuals, it would be considered as harmful behavior to human life and body. And it is not sure that individuals know such a ban or notification. This cause a "Mistake of Law". Also it is happened if someone knows the existence of law but believes that his/her act is not included. For treating the problem of "Mistake of Law" of unlicensed medical act, in this study I inquired thoroughly into the category and regulation of unlicensed medical act, uncertainty of the Medical Services Law the first Section of Article 27, the prohibition of unlicensed medical act. The "Composition Condition" of the first Section of Article 27 of the Medical Services Law is not certain, it doesn't meet the "Doctrine of Clearance", and it cause the "Mistake of Law". Also it doesn't meet standardization of constitutional state. An exceptional decision of Pusan District Court, the debate about unlicensed medical practice, constitutional decision on unlicensed medical practice of the Constitutional Court of Republic of Korea and point of view of support of regulation. Also I examined the problem of "Mistake of Law" that the regulation of unlicensed medical practice has. I tried to solve uncertainty of "Composition Condition" and proposed a direction of regulation for solving the "Mistake of Law" and the use of existing law.

• Analyses & Alternatives
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• v.1 no.1
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• pp.3-16
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• 2017

This paper aims to emphasize the necessity of beginning and developing judicial politics in Korea. Law is constitutive of politics, and judicial politics is vital in understanding how politics is influenced by law. Disappointingly, social science in Korea has not recognized the importance of judicial politics. Judicial branch in Korea does not have the capacity to constrain the executive or other government agencies governed by elected officials. The rule of law does not work. Judicial politics has not yet been introduced in Korea, despite its enormous importance in shaping political economy. The rule of law and courts are believed to be the institutional foundation for economic growth. Law embodied in "no one is above the law" is recognized to provide fairness and stability with a democracy. Little attention to judicial politics results in leaving behind a missing link in a polity. The fortification of the rule of law is necessary to make democracy consolidated in Korea, as shown in impeachment of former president Park Geunhae. A new scholarship in Korea on judicial politics is in need to discuss what conditions under which the rule of law is possible and how to make it sustainable.

• The Korean Society of Law and Medicine
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• v.10 no.1
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• pp.77-116
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• 2009

Owing to the development of Biotechnology, the involvement of humans in life before birth has been increasing. This means the need for the protection of unborn life takes on new importance. The respect for life and human beings which is based on fundamental constitutional principle should still be respected under civil law. This study examines how methods of respect for life are embodied in civil liability law. In particular, it enunciates the protection of unborn life within time-flow. Lastly, it studies the instruments of the civil liability law and the extent of protection for a fetus from the process of fertilization of an ovum by a sperm, development into an embryo and implantation. Especially, it looks into when and how the subject of the right changes. Besides, it critically scrutinizes the opinions of leading case lawyers and the Constitutional Court which conclude that, in order for a fetus to become the subject of Damage law, it is required to be born alive to comply with precedent. Furthermore, it suggests an alternative interpretation theory.

• The Korean Society of Law and Medicine
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• v.13 no.1
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• pp.295-329
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• 2012

A medical malpractice case requires special legal protection, considering its characteristics, such as seriousness and long term effects of its damages, medical information asymmetry between practitioners and patients, and difficulties in realization of liability. Taking the points above into consideration, Medical Malpractice Arbitration Act of 2012(MAA) has legislative intent to protect the rights of the injured from medical malpractice, while protecting the stability of medical practice by providing arbitration as an alternative dispute resolution. However, constitutional review is required for one new scheme of compensation for medical injuries during delivery, which is implemented in MAA of 2012, especially with regard to freedom to exercise occupation, property, equality under the Constitution. Two important aspects are 1. according to the law, absolute liability applies to compensation for damages during delivery without negligence of practitioners; and 2. the practitioner bears some portion of the cost, 30% in the law above. This article aims to analyze this new institution in various aspects of the Constitution, and, as a result, it does not comply with constitutional criteria.

• Korean journal of communication and information
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• v.33
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• pp.227-251
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• 2006

The Law Ensuring the Freedom and the Functions of Liability of the Newspapers ("The Newspaper Law") which was passed in the National Assembly on January 1, 2005 is considered as a tremendous setback compared to "the Newspaper Bill" of civil press organizations. Of the two instruments to ensure the editorial freedom, the regulation on the newspaper company ownership share distribution was eliminated and the editorial committee (editorial codes of ethics) became an arbitrary system. That is, the Newspaper Law was criticized as a law of "half-success." However, the Newspaper Law has its own benefit by institutionalizing the establishment of the Korea Commission for the Press, the Press Fund, and the Korea Newspaper Circulation Service for Promoting Newspaper Businesses and by strengthening the criteria to estimate market dominant businesspeople in newspaper market than general markets to ensure the diversity of public opinions. As the Newspaper Law was promulgated, Donga-Ilbo and Chosun-Ilbo submitted the Constitutional Petition against "the Newspaper Law" and the Constitutional Court is expected to give the decision soon. Based on the "Supplements on the Grounds of the Constitutional Petition against the Newspaper Law" ("the Petition"), this paper will examine the main issues of the debates over the Constitutionality of the Newspaper Law.