• 해양환경안전학회지
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• 제2권1호
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• pp.14-14
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• 1996

In general, a source of international law comes out of either treaties or customs. Process of forming treaty law is relatively clear as it is created by both negotiations of legal experts in issue and express of states concerned in the international conferences. However, this process does not apply to the creation of customary international law. Rather the process to customary law depends on legal inference from or reasoning on states' practices in fact so that there is no definite process or procedures for establishing customary international law and objective criteria to identify it. It is more difficult to prove when and what states' practices have been recognized customary law that turns to bind on all members of world community. This paper is to explore, through theories and findings of ICJ, how the customary international law is formed to be effective as a binding norm of law.

• 해양환경안전학회지
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• 제2권1호
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• pp.107-120
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• 1996

In general, a source of international law comes out of either treaties or customs. Process of forming treaty law is relatively clear as it is created by both negotiations of legal experts in issue and express of sttes concerned in the international conferences. However, this process does not apply to the creation of customary international law. Rather the process to customary law depends on legal inference from or reasoning states' practices in fact so that there is no definite process or procedures for establishing customary international law and objective criteria to identify it. It is more difficult to prove when and what states' practices have been recognized customary law that turns to bind on all members of world community. This paper is to explore, through theories and findings of ICJ, how the customary international law is formed to be effective as a binding norm of law.

• 대한가정학회지
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• 제38권4호
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• pp.85-98
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• 2000

PL law seeks consumers'just compensation and effective deterrence through shirting liability principle from negligence to strict liability. Impact analysis of Product Liability(PL) Low requires consumers' perspectives. This paper performed a policy delphi to predict the impact of PL law on consumers. The study surveyed the opinions of 30 specialists in PL area, ranging from government, officials, professors, researchers, consumer activists, to business executives, for three times. The consumer are as follows: first of all, PL law can contribute to damage compensation significantly in that it stimulates consumer complaints through non- court procedures. It is very unlikely that suits will be increased rapidly due to PL because of the current law environment. The degree of influence of PL law on damage compensation will very according to the content of PL law. Secondly, PL law can contribute to deterrence in that it encourages companies' efforts for product safety while it doesn't undermine consumers' attentions to safety. The influence on companies' efforts will vary according to the content of PL law.

• 항공우주정책ㆍ법학회지
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• 제8권
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• pp.97-131
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• 1996

• 무역상무연구
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• 제17권
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• pp.251-293
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• 2002

The study is a comparative and analytical study which comprises of the analysis of the rules of the buyer's right to withhold performance where the seller delivers defective goods or documents of three legal systems; the CISG, English law and Korean law. The purposes underlying this study are twofold. The first is to clarify the current position as to the right of withholding performance in the event of the seller's tender of defective goods or documents in Korean law, CISG and English law so that it may assist the parties in drafting the buyer's right to withhold performance in their own contract. The second is to compare the rules of one jurisdiction with those of other jurisdictions and to evaluate the rules in light of the practical functions and benefits of the right to withhold performance and the discipline of comparative law the basic question of which is whether a solution from one jurisdiction may facilitate the systematic development and reform of another jurisdiction. It shows that each jurisdiction does not have any provision or case law specifically dealing with the buyer's right to withhold performance where the seller delivers the goods which are defective in terms of quality or quantity. The absence of such provision or case in each jurisdiction has resulted in either disputes or uncertainty. However, the study executed in light of the primary functions and benefits of the right in practice and the discipline of comparative law reveals that, first, the view in English law which is against recognizing the right may not be justified when one considers the practical importance of having the right and the position taken by the CISG as a well developed and modernized law, second, the view in Korean law which argues that the principle of specific goods dogma on which it is based is extended even to substitutable or repairable goods cannot be also justified on the ground of one's ordinary expectation and the position under the CISG and English law which imposes a contractual duty to deliver non-defective goods on the seller insofar as the buyer's payment is deemed to be made in exchange for the seller's delivery of non-defective goods and they are substitutable or repairable. Regarding the right to withhold performance in the event of the seller's tender of defective documents, the study shows that the relatively detailed rules in English law may be utilized as a guideline to fill the gap in the CISG and Korean law in terms of the practicability and appropriateness to govern documentary sales. Furthermore, it is found that the position in English law which confers on the buyer the right to withhold performance for a trivial defect in documents may be unreasonable in terms of one's need to enable justice to be done in individual cases.

• 한국병원경영학회지
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• 제1권1호
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• pp.56-82
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• 1996

The objectives of this research are (i) to review the legal nature of medicine & medical affairs law, (ii) to identify legal defects in terms of the adequacy and feasibility of its provisions and in terms of the structural order among related laws and acts, and (iii) to find out a rational way for revision of the law. Major findings of this research are as follows: 1) The main defects of the Medicine & Medical Affairs Law of Korea are shortcomings of provisions necessary for securing people's right as well as medical practitioner's responsibility and in adequacy to its post as a mother-law in medical fields. 2) Some provisions of the law are inconsistent with other laws and acts, especially with Health Insurance Law. 3) Medicine & Medical Affairs Law of Korea is required to be totally revised in order to keep up with situational changes and to function as a mother-law in its field. On the basis of these findings this study suggests that all the concerned parties would cooperate to renew the law into very sound feature of the mother-law in health field.

• 의료법학
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• 제19권1호
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• pp.81-111
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• 2018

최근 우리나라에서는 연속적으로 발생한 환자안전사건으로 인해 환자안전에 대한 사회적 관심이 높아졌다. 더불어 환자안전사건 발생 후 의료인 및 의료기관의 대응방식이 논란이 되면서, 사과법 및 디스클로져법 도입의 필요성이 제기되고 있다. 본 연구에서는 미국의 사과법과 디스클로져법 내용을 분석하고, 우리나라의 입법 움직임에 대하여 비판적으로 검토하고자 한다. 먼저 사과법은 의료인 등이 환자측에게 불편감, 통증, 손상, 사망 등에 대해 사과나 위로, 공감 등을 표하는 경우, 사과 등의 표현은 민사재판 및 행정절차에서 법적인 증거로 사용할 수 없도록 하는 것을 그 주요 내용으로 한다. 사과법은 실수, 오류, 잘못, 책임, 법적 책임의 표현과 같은 규범적 평가요소를 증거법의 보호 범위에 포함하는지 여부에 따라 '완전한 사과법'과 '부분적 사과법'으로 구분된다. 한편, 디스클로져법은 의료기관이 심각한 위해가 발생한 사건 등에 있어 사건의 공개, 발생원인, 보상계획, 재발방지대책 등에 관하여 환자 측과 소통하는 것을 법률상 강제하거나 자율적으로 유도하는 것을 그 주요 내용으로 한다. 한편, 최근 우리나라에서도 환자안전사고에 관한 관심이 증폭되고, 의료인 측과 환자측의 의사소통의 중요성이 인식되면서, 위와 같은 미국의 사과법 또는 디스클로져법을 수용한 "환자안전법" 개정법률안이 국회에 제출되기도 하였다. 본 연구에서는 미국의 사과법 및 디스클로져법의 분석을 토대로 위 개정법률안의 내용을 비판적으로 검토함으로써 향후의 입법방향에 시사점을 제시하고자 한다.

• Journal of Korea Trade
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• 제24권6호
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• pp.19-36
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• 2020

Purpose - This paper analyzes how to interpret the legal view of the precedents to the UK Insurance Act 2015, comparing it to the UK Marine Insurance Act (MIA) 1906 with a focus on the relationship between the duty of uberrimae fidei and the duty of disclosure. Furthermore, this study focuses on the judgment of the Korean Supreme Court in a case, that examined whether the legal nature of the duty of disclosure or duty of uberrimae fidei in insurance law can be considered as a matter related to the insurer's liability when the applicable terms of English law are incorporated under the insurance contract. Design/methodology - This paper belongs to the field of explanatory legal study, which aims to explain and test whether the choice of law is linked to the conditions that occur in the reality of judicial practice. The approach that is used toward this problem is the legal analytical normative approach. The juridical approach involves studying and examining theories, concepts, legal doctrines and legislation that are related to the problem. Findings - Regarding the requirements and effects of breach of the duty of disclosure, if English law and the Korean Commercial Act are handled differently from each other and Korean law is recognized as the applicable law outside of the insurer's liability, it may be whether the insurer's immunity under English law is contrary to s.633 of the Korean Commercial Act. In considering the breach of the duty of disclosure as a matter of the insurer's liability, even if English law is applied as a governing law, the question of how to interpret the agreement of the governing law in this case may also be raised in the interpretation of Korean International Private Law in relation to the applicable law that applies to the rest of the matter, excluding the matters of liability. Originality/value - According to the Korean Supreme Court judgement under the governing law of the MIA 1906, the basis for recognizing the assured's pre-and post-contractual duty of disclosure is separate, and the only important matters to be notified by the assured after the conclusion of the insurance contract are those that are "relevant" and "material circumstances" that are "relevant" to the matter in question after the conclusion of the insurance contract.

• 의료법학
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• 제11권1호
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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.

• 한국문헌정보학회지
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• 제45권4호
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• pp.103-122
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• 2011

법률 전문인력을 양성하기 위한 법학전문대학원 교육과정은 개설되어야 할 교과목과 교과내용을 규정한 관련 법률에 근거하여 개발된다. 이 연구의 목적은 법학전문대학원 및 법학도서관에서 정규교과목인 '법정보조사론' 교육과정에 대한 운영 실태를 조사하여 법학도서관이 법학전문대학원 교육이념의 취지에 부합하고 교육과정과 연계된 법률정보서비스 방안을 제시하는 것이다. 25개 법학전문대학원 중 22개 대학원을 대상으로 조사한 결과, 첫째, 22개 법률전문대학원이 법률정보조사 교과목을 필수나 기초교과목으로 편성하여 운영하고 있었다. 둘째, 법률정보조사론과 같은 교과목에 사서가 참여하는 대학원이 14개 대학원(63.6%)으로 나타났으며 사서가 전혀 관여하지 않는 경우는 3개 대학원(13.6%), 외부강사의 참여형태가 3개 대학원(13.6%)으로 나타났다. 셋째, 법률정보조사 교과목에 참여한 사서의 주제전문성은 문헌정보학(33.3%)이 가장 많았고 행정학(25%)과 법학(25%)이 다음으로 많았다. 바람직한 법학전문대학원의 법률정보활용교육이 이루어지기 위해서는 법학도서관의 특성화, 담당사서와 담당교수의 협력관계 형성(팀티칭), 법학도서관에 대한 행정적 지원, 그리고 법학도서관 관련 단체의 역할이 강화되어야 할 것이다.