• The Journal of the Korea Contents Association
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• v.22 no.1
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• pp.292-309
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• 2022

Recently, with the development of interactive communication system, demands for video live streaming service has increased. Live streamers generate revenues from donations, but existing laws are inadequate to handle these donations. Problems arise when minors donate because they have the right of revocation. In the case of donations that request benefits in return, legal characteristics and results are different from unilateral donations. If minors exercise their right of revocation, live streamers must pay back without getting proper compensation for their services. In this paper, we detect the characteristics of bilateral contract in live streaming donation, indicate the harms that live streamers can get, examine precedents and donation processes focusing on cases when minors can not exercise the right of revocation due to deception, and propose revisions that can protect the streamers without invading minors' rights. Through academically identifying ambiguous legal situations and presenting dispute prevention procedures, this paper can bring positive impacts on the online industry.

• Journal of Auto-vehicle Safety Association
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• v.14 no.4
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• pp.106-112
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• 2022

The purpose of this study is to explore ways of improving the motor vehicles safety certification system in preparation for the deployment of Lv.4 or higher autonomous vehicles. In order to effectively achieve the objectives of this study, theoretical and empirical research methodologies were employed, including literature review of prior research, government-published data, etc.; comparative research on legislative cases of other countries regarding motor vehicles safety certification; historical and legal research on domestic systems; legal analysis to explore approaches for improvement, etc. Some argue that the type approval system is needed in preparation for deploying autonomous vehicles, but there are several limitations in moving to the type approval system from the self-certification system currently adopted in Korea. First, there is a possibility that the system may be in conflict with the Korea-U.S. MOU regarding Foreign Motor Vehicles (1988) and the Korea-U.S. FTA (2011); second, there is a risk of undermining the cause of the self-certification system, which is the autonomy of manufacturers; third, the boundary between autonomous vehicles and non-autonomous vehicles is unclear; and fourth, the type approval system may hinder technological competitiveness. On the other hand, considering that the Korea-U.S. FTA and the UNECE IWVTA recognize exceptions to deal with road safety and risks to human health or the environment, and have a pre-certification system for some auto parts such as pressure-resistant containers, it can be said that there is room to introduce the type approval system for supplementation purposes. To improve the motor vehicles safety certification system while ensuring the safety of autonomous vehicles of Lv.4 or higher, the targets of type approval should be defined and the criteria, procedures, etc. for type approval should be established. At the same time, the consistency between motor vehicle-related laws and harmonization with international standards need to be considered.

• Journal of the Korea Institute of Information Security & Cryptology
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• v.33 no.5
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• pp.801-811
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• 2023

With the cyber incidents increasing every year, opinions are being raised that legal system relating to incident reporting needs to be revised to improve the cyber incident reporting rate, etc. Accordingly, this paper suggests a legal improvement to enhance the effectiveness of cyber incident reporting. First, by analyzing domestic media coverage, this paper defines the problems which need to be improved regarding an incident reporting system as "unreported" and "not timely reporting". Then, this paper finds four requirements for legal improvement like "a reporting entity", "a starting point of reporting", "a reporting deadline" and "a protection of reporting information" by analyzing the relationship between reporting relating problems and issues published by overseas institutions and additionally by analyzing the need to revise the law. Finally, through an analysis of legislative cases, this paper suggests a legal improvement for the requirements.

• The Korean Society of Law and Medicine
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• v.10 no.2
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• pp.309-341
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• 2009

According to a case of Supreme Court's Sentence No. 2009DA17417 (May 21, 2009), the Supreme Court judges that 'the right to life is the ultimate one of basic human rights stipulated in the Constitution, so it is required to very limitedly and conservatively determine whether to discontinue any medical practice on which patient's life depends directly.' In addition, the Supreme Court admits that 'only if a patient who comes to a fatal phase before death due to attack of any irreversible disease may execute his or her right of self-determination based on human respect and values and human right to pursue happiness, it is permissible to discontinue life-sustaining treatment for him or her, unless there is any special circumstance.' Furthermore, the Supreme Court finds that 'if a patient who is attacked by any irreversible disease informs medical personnel of his or her intention to agree on the refusal or discontinuance of life-sustaining treatment in advance of his or her potential irreversible loss of consciousness, it is justifiable that he or she already executes the right of self-determination according to prior medical instructions, unless there is any special circumstance where it is reasonably concluded that his or her physician is changed after prior medical instructions for him or her.' The Supreme Court also finds that 'if a patient remains at irreversible loss of consciousness without any prior medical instruction, he or she cannot express his or her intentions at all, so it is rational and complying with social norms to admit possibility of estimating his or her own intentions on withdrawal of life-sustaining treatment, provided that such a withdrawal of life-sustaining treatment meets his or her interests in view of his or her usual sense of values or beliefs and it is reasonably concluded that he or she could likely choose to discontinue life-sustaining treatment, even if he or she were given any chance to execute his or her right of self-determination.' This judgment is very significant in a sense that it suggests the reasonable orientation of solutions for issues posed concerning withdrawal of meaningless life-sustaining medical efforts. The issues concerning removal of medical instruments for meaningless life-sustaining treatment and discontinuance of such treatment in regard to medical treatment for terminal cases don't seem to be so much big deal when a patient has clear consciousness enough to express his or her intentions, but it counts that there is any issue regarding a patient who comes to irreversible loss of consciousness and cannot express his or her intentions. Therefore, it is required to develop an institutional instrument that allows relevant authority to estimate the scope of physician's medical duties for terminal patients as well as a patient's intentions to withdraw any meaningless treatment during his or her terminal phase involving loss of consciousness. However, Korean judicial authority has yet to clarify detailed cases where it is permissible to discontinue any life-sustaining treatment for a patient in accordance with his or her right of self-determination. In this context, it is inevitable and challenging to make better legislation to improve relevant systems concerning withdrawal of life-sustaining treatment. The State must assure the human basic rights for its citizens and needs to prepare a system to assure such basic rights through legislative efforts. In this sense, simply entrusting physician, patient or his or her family with any critical issue like the withdrawal of meaningless life-sustaining treatment, even without any reasonable standard established for such entrustment, means the neglect of official duties by the State. Nevertheless, this issue is not a matter that can be resolved simply by legislative efforts. In order for our society to accept judicial system for withdrawal of life-sustaining treatment, it is important to form a social consensus about this issue and also make proactive discussions on it from a variety of standpoints.

• Journal of Arbitration Studies
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• v.22 no.2
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• pp.53-77
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• 2012

Competence-competence refers to an arbitratorpower to determine whether he or she has jurisdiction to decide a controversy. Although arbitrators power to rule on their own jurisdiction is generally recognized throughout the world, in the United States, neither the courts nor legislative bodies have recognized its significance or the reasoning behind its widespread adoption. Section 3 of the Federal Arbitration Act (FAA) is notorious among arbitration statues for its failure to incorporate competence-competence. When courts rule on an issue of competence-competence, it is referred to as a question of who decides the arbitrability of the case. In the United States, the use of competence-competence as a term of art is still limited to scholarly writings. The answer to the competence-competence inquiry is found in an interpretation of section 3 of the FAA which empowers the courts to decide arbitrability issues. The cases of the Supreme Court and most commentators interpreted sections 2 and 3 of the FAA as conferring issues of arbitrability on the federal courts, including the ability to rule on the validity and scope of the arbitral agreement. Traditionally, United States courts have denied the competence-competence to arbitral tribunal. Recently, however, they have confounded the rules by placing primary importance on the arbitration agreement between the parties. The Supreme Court, in a series of cases, has underscored the necessity of giving full effect to the intentions of the parties as expressed in their agreement to arbitrate. The result of the Supreme Court's emphasis on contractualism in determining the issue of arbitrability is most evident in the Courtdecision in the First Options case. Under First Options, courts are to decide arbitrability issues unless there is a clear and unmistakable contractual assignment of these issues to the tribunal itself. The Court is appraised that it has attempted to compromise between contractual freedom in the arbitration setting and the rule of law that is necessary in a society that depends on the concept of ordered liberty. In the decision in Howsam, the Court clarified the definition of arbitrability by attempting to draw a clear line between questions of arbitrability that are to be decided by courts and those matters that bear on the allocation of decisions between courts and arbitrators but are not questions of arbitrability.

• Journal of Environmental Policy
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• v.10 no.2
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• pp.3-19
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• 2011

Nagoya Protocol designed to establish criteria about material trade of biological genetic resources(ABS) was adopted in the 10th conference of the Parties to the Convention on Biological Diversity. In the course of the negotiation for adoption of the protocol, there was conflict between developed and developing countries, resource-rich and poor countries, and multinational corporations and environmentalists. This study investigates conflict process, subjects, issues and major factors in the negotiation case, and analyzes the negotiation by using the Conflict Management Process. To develope conflict management strategies for various conflict cases, we examine previous studies and analyze the intersectional conflict factors of this case and general cases, such as Fundamental side, Resource-allocation side, and Communication/Information-sharing side. These analyses of conflict prevention/resolution of the ABS negotiation show the importance of building mutual trust among stakeholders, enhancing mediator training, and constructing appropriate legislative/policy systems for successful conflict management.

• Journal of Environmental Health Sciences
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• v.43 no.1
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• pp.1-22
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• 2017

'The worstest environment disaster', 'World's first biocide massacre', 'Home-based Sewol ferry disaster' are all phrases attached to the recent humidifier disinfectant disaster. In the spring of 2011, four of 8 pregnant women including 1 adult man passed away at a university hospital in Seoul due to breathing failure. Epidemiologic investigation conducted by the Korean CDC soon revealed the inhalation of humidifier disinfectant, which had been widely used in Korea during the winter, to be responsible for the disease. As well as lung fibrosis hardening of the lungs, other diseases including asthma, rhinitis, skin disease, liver disease, fetal disease or cancers have been researched for their relation with exposure to the products. By February 9, 2017, 5,342 cases had registered for health problems and 1,131 of them were already dead (20.8% mortality rate). Based on studies by government agencies and a telephone survey of the general population by Seoul National University and civic groups, around 20% of the general public of Korea has used these products. Since the market release of the first product by SK Chemical in 1994, over 7.1 million items from around 20 brands were sold up to 2011. Most of the products were manufactured by well-known large conglomerates such as SK, Lotte, Samsung, Shinsegye, LG, and GS, as well as some European companies including UK-based Reckitt Benckiser and TESCO, the German firm Henkel, the Danish firm KeTox, and an Irish company. Even though this disaster was unveiled in 2011 by the Korean government, the issue of the victims was neglected for over five years. In 2016, an unexpected but intensive investigation by prosecutors found that Reckitt Benckiser manipulated and concealed animal tests for its own brand and brought several university experts and company employees to court. The matter was an intense social issue in Korea from May to June with a surge in media coverage. The prosecutor's investigation and a nationwide boycott campaign organized by victims and environmental groups against Reckitt Benckiser, whose product had been used by more than 70% of victims, led to the producer's official apology and a compensation scheme. A legislative investigation organized after the April 2016 national election revealed the producers' faults and the government's responsibility, but failed to meet expectations. A special law for the victims passed the National Assembly in January 2017 and a punitive system together with a massive environmental epidemiology investigation are expected to be the only solutions for this tragedy. Sciences of medicine, toxicology and environmental health have provided decisive evidence so far, but for the remaining problems the perspectives of social sciences such as sociology and jurisprudence are highly necessary, similar to with the Minamata disease and Wonjin Rayon events. It may not be easy to follow this issue using unfamiliar terminology from medical and chemical science and the long, complicated history of the event. For these reasons the author has attempted to write this article in a question and answer format to render it easier to follow. The 17 questions are: Q1 What is humidifier disinfectant? Q2 What kind of health problems are caused by humidifier disinfectant? Q3 How many victims are there? Q4 What is the analysis of the 1,112 cases of death? Q5 What is the problem with the government's diagnostic criteria and the solution? Q6 Who made what brands? Q7 Has there been a recall? What is still on sale? Q8 Was safety not checked by any producers? Q9 What are the government's responsibilities? Q10 Is it true that these products were sold only in Korea? Q11 Why and how was it unveiled only in 2011 after 17 years of sales? Q12 What delayed the resolution of the victim issue? Q13 What is the background of the prosecutor's investigation in early 2016? Q14 Is it possible to report new victim cases without evidence of product purchase? Q15 What is happening with the victim issue? Q16 How does it compare with the cases of Minamata disease and Wonjin Rayon? Q17 Are there prevention measures and lessons?

• The Korean Society of Law and Medicine
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• v.16 no.2
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• pp.159-193
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• 2015

Owing to causes such as population aging, increased use of various medical devices, long-term hospitalization of various patients with reduced immune function such as cancer, diabetes, and organ transplant patients, and the growing size of hospitals, hospital infections are continuing to increase. As seen in the MERS crisis of 2015, hospital infections have become a social and national problem. In order to prevent damage due to such hospital infections, it is necessary to first strictly implement measures to prevent hospital infections, while, on the other hand, providing proper relief of damage suffered due to hospital infections. However, the mainstream attitude of judicial precedents relating to hospital infection cases has been judged to in fact shift responsibility over damages due to hospital infections on the patient. In light of the philosophy of the damage compensation system, whose guiding principle if the fair and proper apportionment of damages, there is a need to seek means of drastically relaxing the burden of proof on the patient's side relative to conventional legal principles for relaxing the burden of proof, or the theory of de facto estimation. In relation to such need, the German civil code (Burgerliches Gesetzbuch), which defines contracts of medical treatment as typical contracts under the civil code, and has presumption of negligence provisions stipulating that, in cases such as hospital infections which were completely under the control of the medical care providers, if risks in general medical treatment have been realized which cause violations of the life, body, or health of patients, error on the part of the person providing medical care is presumed, was examined. Contracts of medical treatment are entered into very frequently and broadly in the everyday lives of the general public, with various disputes owing thereto arising. Therefore, it is necessary to, by defining contracts of medical treatment as typical contracts under the civil code, regulate the content of said contracts, as well as the proof of burden when disputes arise. If stipulations in the civil code are premature as of yet, an option may be to regulate through a special act, as is the case with France. In the case of hospital infection cases, it is thought that 'legal presumption of negligence' relating to 'negligence in the occurrence of hospital infections,' which will create a state close to equality of arms, will aid the resolution of the realistic issue of the de facto impossibility of remedying damages occurring due to negligence in the process of occurrence of hospital infections. Also, even if negligence is presumed by law, as the patient side is burdened with proving the causal relationships, such drastic confusion as would occur if the medical care provider side is found fully liable if a hospital infection occurs may be avoided. It is thought that, alongside such efforts, social insurance policy must be improved so as to cover the expenses of medical institutions having strictly implemented efforts to prevent hospital infections in the event that they have suffered damages due to a hospital infection accident, and that close future research and examination into this matter will be required.

• The Korean Journal of Air & Space Law and Policy
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• v.26 no.1
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• pp.147-176
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• 2011

China is experiencing rapid economic development and the volume of air passengers and cargo transportation has increased significantly in recent years. To the contray, the regulations on liability of air carrier in china fall behind and are not sufficiently applicable in disputes. Their lack of sufficient protection for air passenger's interests became obstructive factor for further developments of Chinese air transportation industry. The legal system of air carrier's liability mainly consists of the contents as followed. The liability period, the scope of liability, amount of compensation for damage, limitation of liability, liability exemption of air carrier, jurisdiction, limitation of action, applicable law etc. Laws and rules concerning these issues are regulated in Civil Aviation Law and regulations published by Civil Aviation Administration of China. This article described the main contents of air carrier's liability and examined the legislative problems in their applications in real cases. In order to solve the legal problems on the air carrier's liability and disputes between wrongdoers and survivors etc, it is necessary and desirable for china to amend revelvant provisions. One of my proposals is to raise the amount of compensation limitation for damage. And I also would like to suggest that Civil Aviation Law should treat international and domestic transportation equally on the limitation of compensation for air carrier's liability. China has also acceded to the Montreal Convention of 1999 on July 31, 2005. This is an effort to make the law of air carriage unified worldwide through various international conventions to achieve conformity between rules of international air carriage and that of Chinese domestic aircarriage. Furthermore, there should be additional detailed implementation rules for air carrier to assume liability for the losses to passengers, baggage or cargoes caused by delays in the air transport. Significant clarifications are also needed for provisions concerning whether and how air carrier assume liability for moral damage caused by accident.

• Korean Journal of Legislative Studies
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• v.24 no.1
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• pp.67-101
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• 2018

The purpose of this study is to examine the significant factors having an effect on voting behavior of legislators in the FTA ratification votes of the 18th and 19th National Assembly. The previous studies show that the ideology and party affiliation of lawmakers are the most important factors influencing voting decisions of legislators. The study investigates whether these factors plays a significant role in voting on the FTA ratification. Statistical results show three important findings. First of all, we expected that the influence of the party variable be the most important factor due to the strong discipline of the Korean party. However, the results show that the constituency-interest variable is the most influential factor in the all analyses. Likewise, the results show that the influence of ideology variables on voting behaviors is very strong even though its impact is different by cases and models. This indicates that in the analysis of the voting behaviors of legislators, it is necessary to examine the effect of ideological variables in depth and in various ways. In addition, the results reasonably suggest that the party variable be consistently important even though its statistical significance is not shown in some models. Because the study analyzes the voting on the free trade agreement(FTA) bill, the results may not be commonly applicable to other voting behavior of legislator. Likewise, there is a limit to discussing the general characteristics of lawmakers based on the analysis on the 5 FTA ratifications. Nevertheless, the finding of the study is very significant. This is because it comprehensively analyzed the factors having an influence on the voting behavior of the legislators on FTA ratifications submitted to the National Assembly steadily since the 16th National Assembly. In addition, the study is very meaningful because it analyzed the ideological variables of the legislators in various perspectives considering that it is not easy in measuring the ideology of the lawmakers.