• Korea Trade Review
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• v.42 no.5
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• pp.1-18
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• 2017

This study focuses on the recent case held as to control in franchising. On the basis of analysis of the recent case, it examines the validity of the decision and suggests practical advice. The extensive judicial precedent has held that the franchisor and the franchisee possess the independent contractor relationship. But Williams v. Jani-king of Philadelphia Inc. suggest the conversion of the franchisee's status to an employees instead of an independent contractor. Franchisees allege that they were wrongly classified as independent contractors instead of employees because Jani-King had the ability to control the manner in which franchisees perform their day-to-day tasks. The appeal court held that Pennsylvania law does not distinguish between controls put in place to protect a franchise's intellectual property and controls for other purposes, and a franchisee may be an employee or an independent contractor depending on the nature of the franchise system controls. However, some degree of controls by the franchisor over the franchisee is inherent in the franchise and may even be mandated by the federal and state laws. Moreover, the appeal court affirmed that the franchise agreement, policies manual, and training manual alone could be sufficient to resolve the employment status. But it seems appropriate that the right to control on the documents is considered with the actual control.

• The Korean Society of Law and Medicine
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• v.9 no.1
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• pp.319-382
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• 2008

As a withdrawing care's study, the purpose of this study is searching about withdrawing care's acceptance and circumstances through Bora-mae hospital case(chapter 1). Withdrawing life-sustaining treatment has various forms. Though the meaning of euthanasia, death with dignity, natural death, physician assisted suicide are duplicated, the meaning of those are different slightly. Firstly, this study looks about the difference of the those meaning and acceptance range(condition) by withdrawing care's forms(chapter 2). Bora-mae hospital case sentenced guilty about physician who discharged incompetent patient who was after surgery by patient's wife determination. This Bora-mae case that sentenced guilty about discharge against medical advise(DAMA) that is regarded to custom has brought intensive confliction of legal, social, medical aspect, Bora-mae hospital case has many legal problems. First, as to criminal law rule 250(murder), the problem is whether discharge and withdrawing life-sustaining treatment is commission or omission. this study concluded omission(district court: omission, appeal, supreme court: commission). Because legal denounce point of discharge and medical treatment withdrawing is omission that physician who is obligatory on patient to cure. If physician's act is regarded omission, it is necessary to determine whether he has guardian status and obligation. Without guardian status and obligation, omission crime can't exist. This study decided that physician had guardian status and obligation and foundation of guardian status was pre-action or acceptance of emergency patient. Physician's medical treatment duty finished when patient(or patient's guardian) demands discharge. But when patient death is foreseen and other possible treatment does not exist, his duty of life prolonging treatment does not finish. This originate from physician's social responsibility and public status that limits patient's private liberty. This study regarded physician's action as accomplice about whether physician's discharging action is accomplice or the principal offender(district court: the principal offender, appeal, supreme court: accomplice). Though the principal offender needs criminal determination and action, there is no this common determination and functional action control of physician in Bora-mae case(chapter 3). Bora-mae hospital case partly originated from deficiency of legal, institutive system including medical security system shortage, the instruction is 1. medical security system strengthening, 2. hospital ethical committee's activity strengthening, 3. institutionalization of withdrawing life-sustaining treatment, 4. acceptance of pre-decision making system, 5. sufficient persuasion of physician for patient and faithful writing of medical paper, 6. respect for patients' self-determination and rights, 7. consciousness's changing for withdrawing life-sustaining treatment and persistent education about medical ethics(chapter 4). Considering Bora-mae case, medical sector is not the dead ground of a criminal punishment. Intervention of criminal law in medical sector give rise to ill effect, that is, excess medical examination and treatment, safeguard treatment, delay of discharge from a hospital. Because sufficient guarantee of life becomes mere empty slogan under situation that impose a burden of heavy cost to family or hospital, public and systematic solution should be given(chapter 5).

• Journal of the Korean Society for Aviation and Aeronautics
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• v.15 no.1
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• pp.38-53
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• 2007

In a seminal judgment of November 2002 (Case C-476/98) relating to the compatibility with Community laws of the 'nationality clause' in the 1996 amending protocol to the 1955 U.S.-German Air Services Agreement, the European Court of Justice(ECJ) decided that the provision constituted a measure of an intrinsically discriminatory nature and was thus contrary to the principle of national treatment established under Art. 52 of the EC Treaty. The Court, rejecting bluntly the German government' submissions relying on public policy grounds(Art. 56, EC Treaty), seemed content to declare and rule that the protocol provision requiring a contracting state party to ensure substantial ownership and effective control by its nationals of its designated airlines had violated the requirement of national treatment reserved for other Community Members under the salient Treaty provision. The German counterclaims against the Commission, although tantalizing not only from the perusal of the judgment but from the perspective of international air law, were nonetheless invariably correct and to the point. For such a clause has been justified to defend the 'fundamental interests of society from a serious threat' that may result from granting operating licenses or necessary technical authorizations to an airline company of a third country. Indeed, the nationality clause has been inserted in most of the liberal bilaterals to allow the parties to enforce their own national laws and regulations governing aviation safety and security. Such a clause is not targeted as a device for discriminating against the nationals of any third State. It simply acts as the minimum legal safeguards against aviation risk empowering a party to take legal control of the designated airlines. Unfortunately, the German call for the review of such a foremost objective and rationale underlying the nationality clause landed on the deaf ears of the Court which appeared quite happy not to take stock of the potential implications and consequences in its absence and of the legality under international law of the 'national treatment' requirement of Community laws. Again, while US law limits foreign shareholders to 24.9% of its airlines, the European Community limits non-EC ownership to 49%, precluding any ownership and effective control by foreign nationals of EC airlines, let alone any foreign takeover and merger. Given this, it appears inconsistent and unreasonable for the EC to demand, $vis-{\grave{a}}-vis$ a non-EC third State, national treatment for all of its Member States. The ECJ's decision was also wrongly premised on the precedence of Community laws over international law, and in particular, international air law. It simply is another form of asserting and enforcing de facto extraterritorial application of Community laws to a non-EC third country. Again, the ruling runs counter to an established rule of international law that a treaty does not, as a matter of principle, create either obligations or rights for a third State. Aside from the legal problems, the 'national treatment' may not be economically justified either, in light of the free-rider problem and resulting externalities or inefficiency. On the strength of international law and economics, therefore, airlines of Community Members other than the designated German and U.S. air carriers are neither eligible for traffic rights, nor entitled to operate between or 'free-ride' on the U.S. and German points. All in all and in all fairness, the European Court's ruling was nothing short of an outright condemnation of established rules and principles of international law and international air law. Nor is the national treatment requirement justified by the economic logic of deregulation or liberalization of aviation markets. Nor has the requirement much to do with fair competition and increased efficiency.

• The Korean Journal of Archival Studies
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• no.40
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• pp.95-130
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• 2014

Three frequently used documents by researchers on the Japanese colonial period-Classified Police Records of the Japanese Government-General of korea on the Anti-Japanese Movement 舊 朝鮮總督府 警務局 抗日獨立運 動關係 秘密記錄, Trial Records of Gyeongseong District Court 京城地方法院 裁判記錄 and Filed Documents of Gyeongseong District Court 京城地方法院 編綴文書(while the latter two were collected by the National Institute of Korean History, the former was collected by Asiatic Research Institute of Korea University)-are among the same records group that the Prosecutor's Office of Gyeongseong District Court produced through registration and compilation. As contents related to ideology suppression and thought control were numerous, it could be assumed that most of the materials were produced by the 'Department of Ideology' of the Prosecutor's Office. By examining the administrative records of the 1920's within this group, the process of how the 'Department of Ideology' was formed is clearly shown. As ideological movements for Korea's independence and revolution grew, execution of regulations was further expanded by the Prosecutor's Office. Since the mid-1920's, information on ideology had been separated from general information, was routinely collected heavily, and was considered more valuable than the general information. By the end of the 1920's, the term Ideology Prosecutor 思想係 檢事(meaning a prosecutor who specializes in ideology verification) and the named 'Department of Ideology'(思想部) emerged on the records.

• The Korean Journal of Community Living Science
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• v.18 no.4
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• pp.539-553
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• 2007

The present study examined the effects of parent-education administered during divorce procedure on the perception of parent-education programs. The subjects were 60 couples who were in divorce procedure at the Seoul Family Court and had children under 20 Subjects were divided into three groups of 20 couples each: a control group, and experimental group 1 and experimental group 2 that were homogeneous in demographical and legal backgrounds. Experimental group 1 was shown pamphlets and videos on the role of divorced parents, and experimental group 2 was shown pamphlets and videos on the role of divorced parents as well as given explanations about the contents of the pamphlets and videos. No treatment was applied to the control group. According to the results of the experiment, the two experimental groups showed improvement in their perception of the necessity for parent-education programs. Demand for the number of sessions and hours, and the effect was higher in experimental group 2 than in experimental group 1. With regard to the necessity of parent-education programs, experimental group 2 was positive particularly to mandatory injunction, the payment of education fees and expectation of helpfulness. All three groups expected that parent-education programs would be helpful.

• Journal of Arbitration Studies
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• v.26 no.3
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• pp.121-147
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• 2016

Factual issues in most patent litigation are related to very complicated techniques. Thus, the courts has emphasised that the technology in dispute has to be read and understood through the eyes of a person to whom it is directed. Therefore, among the various processes in federal litigation, most litigation in the field of patent infringement relies on at least some expert evidence. This paper focuses on issues regarding patent dispute evidence, and explore whether there are unresolved issues in evidential rules and procedures of patent proceedings. Further, this paper seeks to demonstrate that both the parties and the courts in patent disputes generally benefit from the current evidence system. However, in a number of Australian cases, the scope of expert evidence in patent cases has been strictly limited. Australian Government identified uncertain issues associated with the present patent enforcement system, due to factors such as a low level of knowledge about what patent rights entail, the high degree of uncertainty of outcome in legal proceedings, etc. Arbitration shall be reviewed and suggested as an alternative to tackling the ongoing problems in the trial system.

• The Korean Journal of Air & Space Law and Policy
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• v.35 no.1
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• pp.3-32
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• 2020

With controlling Drones, although it was discussed in the previous study which showed a possibility. Which is personality and property rights of third parties could be violated while operating the drone with a video camera. But It's hard to find out precedents related to drones in Korea. In case of that someone try to control the drone which is equipped with a camera in a yard of neighborhood, the German District Court (Potsdam) considered an operator of drone has little bit of careless to do his duty and admit nonfeasance claim in the owner of the one's property for prevention to repetition of similar situation according to a nonfeasance claim for prevention to Section 1004 (1) sentence 2 of the German Civil Code(BGB). The drone which is equipped with a camera have possibilities to disrupt property and personal rights of the owner. Because a danger in repetition is getting larger regarding the violation of law. Moreover, there is a case that someone shot down the drone which is equipped with a camer. Because it has a risk to interrupt private life and cause some dangerous in our life. The German district court(Riesa) recently have considered that controlling the drone with a camera in private spaces is illegal as a violation of personal life. In addtion to, the action of property owner shot down drone is a legal according to § 228 of the German Civil Code(BGB) which is caleed "Necessity". Although it is difficult to apply to foreign cases directly to Korea, similar cases are likely to be occurred in Korea. The decision of the German District Court showed implications to Korea. As demand for the camera-equipped drone increases in Korea, it is time to discuss specific measures for drone violations.

• The Korean Journal of Air & Space Law and Policy
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• v.23 no.2
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• pp.115-136
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• 2008

The development of the aviation technology is beyond the people's imagination. For example, with some exaggeration, If the autopilot engage upon take off, You will realize that you are on the centerline of the foggy JFK runway 13R after 15 hours with only once or twice of intervention. But the more aviation technology develops, the more responsible the pilot will be who has the final authority of the aviation safety. In the JAL 706 accident caused by unidentified reason, the pilot increased pitch abruptly and overrode the control from the autopilot. The result of this process made the death of a flight attendant and some injuries of a few passengers. The district court found the pilot not guilty at the first trial on the ground that the control override was not connected to the possibility of foresight and avoidance of the human death. The pilot was proved to be innocent through the analysis of the DFDR and ADAS that the override did not precede the unidentified pitch up motion. The judicial precedent related to aviation accidents in Korea requires pilots' absolute and extended care compared to the ordinarily prudent or reasonably careful behaviors in the vehicle and medical accidents. Although there is some controversy about the standard care, the care required in the actual operation of high tech aircraft by a pilot should include objective and standard care and be judged by analysis of the scientific data. Although the pilot maintained the unusual hi speed that doesn't have safety margin and descended under turbulence in case of the JAL 706 accident, the court negatived its relation to the cause of pitch up. Also, the override of the control after initial pitch up might have caused the possibility of the death and injury, but the court denied it. Because of this complex cause of the aviation accidents, it is important for a court to figure out the core reason of the event and casual relationship with the pilot Now, It is required that the judgement of negligence in the aviation accidents should include an objective care with scientific data from simulated circumstances(or a simulator) as the Japanese court not from the theory of vehicle's negligence.

• Ocean and Polar Research
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• v.35 no.4
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• pp.313-322
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• 2013

The concept of effective control is a crucial element for the acquisition as well as maintenance of territorial title. The general meaning of the concept has been described as 'an intentional display of power and authority over the territory, by the exercise of jurisdiction and State functions, on a continuous and peaceful basis'. The concept has been developed through some significant international cases such as the Island of Palmas case (1928), Legal Status of Eastern Greenland (1933), Minquiers and Ecrehos case (1953), Burkina Faso/Mali case (1986) and Nicaragua/Colombia case (2012). In relation to Dokdo, the concept has an important bearing in regard to Korea's claims of territorial sovereignty over the island. This paper reviews the definition, components and ramifications of the effective control with regard to the acquisition and maintenance of territorial title through analyzing the relevant judgements of international courts and tribunals. Furthermore, it exams the legal ramifications of the current effective control on Dokdo and makes some suggestions for the strengthening of Korea's position on the island.

• Strategy21
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• s.31
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• pp.164-189
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• 2013

Last December, the Abe government came back, and it is critical core of Northeast Asia. They visited to Yasukuni Shrine, denied to Korea's invasion and they are denying all of their invasion history. I'm afraid they want to take Dokdo. Dokdo is Korean territory, but Japan politics assert it belongs to them. To make matters worse, they are waiting an opportunity to invade. Ministry of Foreign Affair blue paper and Ministry of Defense white paper have claimed Dokdo as Japanese territory, and many right wing politicians are taking part in the Cabinet. Liberal Democratic Party of Japan is becoming more right wing politicians than before by Japan Restoration Party, and the others also have more right wing ideologies. It can't control Japan right wing political parties. They finally aim to take Dokdo. In this situation, we have to defend Dokdo. Japan must be very important partner for our nation's development. But it is necessary to trust between two countries. Dokdo is effective controlled by Korea. It is the best way how to keep Dokdo. During Dokdo is effective controlled by Korea, the Japanese Government has limited Dokdo's ownership. Now we don't have any way to keep Dokdo except more effective control. We have strategies about Japanese claim of Dokdo's ownership as follows. First, we can overpower Japan right wing politics as Japan conscientious force's ideology. Second, Japan politics say to Dokdo's ownership is based on The San Francisco Treaty. But it is not right. Third, we have to exchange a lot of local government and civic society in Japan. Finally, we must prepare thoroughly to bring the matter to the International Court of Justice.