전자상거래의 국제재판관할 관련 판례변화에 관한 연구 (A Study on the Precedents Changing Related to International Jurisdiction in Electronic Commerce-Focused on U.S. Cases-)
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- 통상정보연구
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- 제13권3호
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- pp.3-29
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- 2011
인터넷을 통한 전자적 활동은 다수국의 관할영역에 걸쳐 발생할 수 있다. 즉 온라인상의 활동의 효과는 지리적으로 한정되지 않고, 특정한 지역의 사람에게만 영향을 미치는 것도 아니다. 인터넷상의 전자상거래는 초국경적으로 불특정다수를 상대로 거의 동시에 쌍방향 통신이 가능하다. 이러한 특정은 국제재판관할과 준거법 결정에 어려움을 발생시키기 때문에 국제사법상으로 처리하는 데 문제로 된다. 이 문제를 해결하기 위해서는 오늘날 존재하는 각국의 법 차이를 고려하여 국제사법의 정신에 준하여 어떻게 법의 충돌을 해결하고, 바람직한 국제재판관할에 관한 적용규범의 전개방향을 눈여겨봐야 한다. 이런 차원에서 전자상거래 관련 국제재판관할 문제에 관하여는 세계적으로 전자상거래 주도국인 미국의 판례변화를 분석하는 것은 그 의의가 있다. 전자상거래의 국제재판관할과 관련한 미국의 최근 판례를 분석해 보면, 대인재판관할권 관련한 판례 법리는 아직 완전하게 확립된 단계까지는 이르지 못하였고 변화 발전하고 있는 것으로 판단된다. 미국연방법원이 전자상거래의 국제재판관할 문제를 해결하기 위하여 여러 접근방법을 적용하여 왔다. 즉 영역별 분석법 (sliding scale test), 효과분석법 (effect test) 등을 적용하여 왔지만, 최근에는 타켓팅 분석법 (targeting test)을 적용하는 경향을 보이고 있다. 현재 우리나라에서는 국제재판관할 관련 규칙을 국제사법에서 규정하고 있지만, 이들 규칙이 전자상거래에도 그대로 적용될 지는 의문이 있다. 따라서 우리나라에서도 국제재판관할의 유무를 논함에 있어서는 구체적인 사정을 고려하여 개별사안의 타당한 해결에 중점을 두고 있는 현상을 근거로 삼아야 할 것이다. 따라서 구체적 사안처리의 개별타당성을 추구하는 미국판례의 동향을 분석하는 것은 적어도 실무상 어느 정도 중요한 위치를 차지하는 것이라 할 수 있다. 특히 최근의 미국판례나 학설의 동향을 분석하는 것은 앞으로 국제재판관할에 관한 규정을 우리나라 민사소송법에 포함시킬 때 소비자와 사업자의 요청을 수용하는 타당한 규정을 마련하는데 도움을 제공할 수 있다고 판단된다.
This project was a service-cum-research effort with a quasi-experimental study design to examine the health benefits of an integrated Family Planning (FP)/Maternal & Child health (MCH) Service approach that provides crucial factors missing in the present on-going programs. The specific objectives were: 1) To test the effectiveness of trained nurse/midwives (MW) assigned as change agents in the Health Sub-Center (HSC) to bring about the changes in the eight FP/MCH indicators, namely; (i)FP/MCH contacts between field workers and their clients (ii) the use of effective FP methods, (iii) the inter-birth interval and/or open interval, (iv) prenatal care by medically qualified personnel, (v) medically supervised deliveries, (vi) the rate of induced abortion, (vii) maternal and infant morbidity, and (viii) preinatal & infant mortality. 2) To measure the integrative linkage (contacts) between MW & HSC workers and between HSC and clients. 3) To examine the organizational or administrative factors influencing integrative linkage between health workers. Study design; The above objectives called for quasi-experimental design setting up a study and control area with and without a midwife. An active intervention program (FP/MCH minimum 'package' program) was conducted for a 2 year period from June 1982-July 1984 in Seosan County and 'before and after' surveys were conducted to measure the change. Service input; This study was undertaken by the Soonchunhyang University in collaboration with WHO. After a baseline survery in 1981, trained nurses/midwives were introduced into two health sub-centers in a rural setting (Seosan county) for a 2 year period from 1982 to 1984. A major service input was the establishment of midwifery services in the existing health delivery system with emphasis on nurse/midwife's role as the link between health workers (nurse aids) and village health workers, and the referral of risk patients to the private physician (OBGY specialist). An evaluation survey was made in August 1984 to assess the effectiveness of this alternative integrated approach in the study areas in comparison with the control area which had normal government services. Method of evaluation; a. In this study, the primary objective was first to examine to what extent the FP/MCH package program brought about changes in the pre-determined eight indicators (outcome and impact measures) and the following relationship was first analyzed; b. Nevertheless, this project did not automatically accept the assumption that if two or more activities were integrated, the results would automatically be better than a non-integrated or categorical program. There is a need to assess the 'integration process' itself within the package program. The process of integration was measured in terms of interactive linkages, or the quantity & quality of contacts between workers & clients and among workers. Intergrative linkages were hypothesized to be influenced by organizational factors at the HSC clinic level including HSC goals, sltrurture, authority, leadership style, resources, and personal characteristics of HSC staff. The extent or degree of integration, as measured by the intensity of integrative linkages, was in turn presumed to influence programme performance. Thus as indicated diagrammatically below, organizational factors constituted the independent variables, integration as the intervening variable and programme performance with respect to family planning and health services as the dependent variable: Concerning organizational factors, however, due to the limited number of HSCs (2 in the study area and 3 in the control area), they were studied by participatory observation of an anthropologist who was independent of the project. In this observation, we examined whether the assumed integration process actually occurred or not. If not, what were the constraints in producing an effective integration process. Summary of Findings; A) Program effects and impact 1. Effects on FP use: During this 2 year action period, FP acceptance increased from 58% in 1981 to 78% in 1984 in both the study and control areas. This increase in both areas was mainly due to the new family planning campaign driven by the Government for the same study period. Therefore, there was no increment of FP acceptance rate due to additional input of MW to the on-going FP program. But in the study area, quality aspects of FP were somewhat improved, having a better continuation rate of IUDs & pills and more use of effective Contraceptive methods in comparison with the control area. 2. Effects of use of MCH services: Between the study and control areas, however, there was a significant difference in maternal and child health care. For example, the coverage of prenatal care was increased from 53% for 1981 birth cohort to 75% for 1984 birth cohort in the study area. In the control area, the same increased from 41% (1981) to 65% (1984). It is noteworthy that almost two thirds of the recent birth cohort received prenatal care even in the control area, indicating that there is a growing demand of MCH care as the size of family norm becomes smaller 3. There has been a substantive increase in delivery care by medical professions in the study area, with an annual increase rate of 10% due to midwives input in the study areas. The project had about two times greater effect on postnatal care (68% vs. 33%) at delivery care(45.2% vs. 26.1%). 4. The study area had better reproductive efficiency (wanted pregancies with FP practice & healthy live births survived by one year old) than the control area, especially among women under 30 (14.1% vs. 9.6%). The proportion of women who preferred the 1st trimester for their first prenatal care rose significantly in the study area as compared to the control area (24% vs 13%). B) Effects on Interactive Linkage 1. This project made a contribution in making several useful steps in the direction of service integration, namely; i) The health workers have become familiar with procedures on how to work together with each other (especially with a midwife) in carrying out their work in FP/MCH and, ii) The health workers have gotten a feeling of the usefulness of family health records (statistical integration) in identifying targets in their own work and their usefulness in caring for family health. 2. On the other hand, because of a lack of required organizational factors, complete linkage was not obtained as the project intended. i) In regards to the government health worker's activities in terms of home visiting there was not much difference between the study & control areas though the MW did more home visiting than Government health workers. ii) In assessing the service performance of MW & health workers, the midwives balanced their workload between 40% FP, 40% MCH & 20% other activities (mainly immunization). However,