• Journal of the Korea Society of Computer and Information
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• v.22 no.10
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• pp.151-157
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• 2017

In the case of uploading privacy information of an information owner in the Internet, the information owner may want to deliver the privacy information itself or remove such information from the search list in order to prevent third parties from accessing the privacy information of the information owner. Such a right to be forgotten may collide with the freedom of expression of a third party. The right to be forgotten, which originates from the self-determination right on privacy information based on Article 10 and 17 of the Constitution and the freedom of expression, which is based on Article 21 thereof are all relative basic rights and are both limited by Item 2 under Article 37 of the same law, which is the general limitation provision for the basic rights. Therefore, when the right to be forgotten and the freedom of expression collides, it is not possible to give priority to one of the those unilaterally. It depends on the nature of the case at hand to find a natural balance for the harmonious solution for both parties. The criteria can be the sensitivity to the privacy of the information owner caused by the disclose of the privacy information, the public benefits such information may serve, the social common good that could be expected by the disclosure of the privacy information and the damages suffered in terms of the personal interest caused by the disclosure of the information, in a comprehensive manner.

• The Journal of the Korea Contents Association
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• v.14 no.11
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• pp.732-742
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• 2014

The provision of welfare services to the disabled in Korea are still insufficient to meet the demand and the delivery system of the service is organized largely from the viewpoint of the suppliers. In order to guarantee the user right to choice, the shift of the policy paradigm supporting autonomy, self-directedness and the right to control of the users appears to be important. The present study explores the theoretical discussion in the field of the welfare of the disabled about user involvement. Then it investigates the German case of 'personal budgets' aimed to strengthen the user involvement and draws some policy implications for Korea. The study confirms that the introduction of 'personal budgets' aimed to realization of the self-determination of the disabled has contributed for the reinforcement of user involvement in welfare policies for the disabled. This new policy program 'personal budgets' based on the idea of the realization of the right to self-determination appears to transform the general nature of the welfare system for the disabled in Germany by transforming the payment methods.

• The Journal of the Korea Contents Association
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• v.20 no.11
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• pp.624-635
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• 2020

This study focuses on the right to self-determination, which has a higher possibility of infringement on rights, for people with developmental disabilities, who are more vulnerable to rights protection than other types of disabilities, and seeks to obtain implications of the basis for academic discussion and practical strategies. To this end, data were collected through a structured survey on 302 social workers in Seoul, Gyeonggi, and Gangwon area to identify the importance and execution degree of self-determination components of the developmental disabled, and descriptive analysis, differences. analysis, matrix analysis was applied. As a result of the analysis, the importance and performance degree were evaluated at an absolute level lower than the positive level, and the overall average standard execution degree was found to be applied relatively later, and the difference between the two levels was statistically significant. Meanwhile, goal setting and achievement, self-management and regulation, branch recognition and perception, etc. were identified as under-action elements as disparity between importance and performance. Therefore, in order to improve the balanced positivity of social workers and people with developmental disabilities in consideration of the reciprocity of human rights protection, applied behavior analysis, positive behavior support, and individualized service plan based on the application of a person-centered program and self-determination improvement program are applied. Suggestions were made on detailed strategies such as accounting.

• The Korean Society of Law and Medicine
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• v.16 no.2
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• pp.3-26
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• 2015

Recently, Practicing of ghost surgery and duty of informed consent of doctors have become a big issue in the medical dispute and lawsuits. The ground of admitting the informed consent and the agreement(self-determination of patients) can be based on the dignity of man and the right to pursue his happiness guaranteed under Article 10 of the constitution in theory. However there are no explicit legal regulations on the duty of the informed consent and there is no substantive legal enactment on the informed consent, but there is a collision between self-determination of patients and the discretionary power of doctors. If the discretionary power on the duty of the informed consent was extended it may result in the infringement of the right of surgical patients, so called arbitrary medical treatment. Relating to this issue, New Jersey Supreme Court held that a patient has the right to determine not only whether surgery is to be performed on him, but also who shall perform it. Moreover it held that a surgeon who operates without the patient's consent engages in the unauthorized touching of another and, thus, commits a battery'. But there are no ghost surgery cases adopting battery theory in Korea, and professional negligence has been considered rather than the battery, regarding an absence of hostile intent to injure patient. Supreme Court of Korea held that a doctor who operates a medical procedure without the patient's valid prior consent based on wrong diagnosis commits professional negligence resulting in injury, and the patient's invalid consent do not preclude wrongfulness'. However, if a health care provider conducts a completely non-consensual treatment or substitute surgeon without consent, the action should be plead in battery, not negligence, but if a health care provider violate his duty of care in obtaining the consent of the patient by failing to disclosure all relevant information (risks) that a reasonable person would deem significant in making a decision to have the procedure, the action should be plead in negligence, not battery. Therefore, the scope of patients' self-determination can be protected by stating clearly the scope of the duty of the informed consent and the exemption of the informed consent legislatively, it is considered that it is valid to legislate the limitation of the discretionary power.

• The Journal of Information Systems
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• v.28 no.4
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• pp.65-103
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• 2019

Purpose The purpose of this study is to find out in extent to which the companies in Korea and oversea, which has been subjected by different laws of their country, have guaranteed the personal information rights and have provided proper 'right to access' to the information subjects. Design/methodology/approach This study compared Korean laws with 'General Data Protection Regulation (GDPR)' of EU and 'California Consumer Privacy Act (CCPA)' to check each of the level of 'right to access' guarantee. In terms of the difference in guaranteeing the right, this study compared Korean IT leading companies with US global leading IT companies to find out how much 'right to access' are properly implemented in their policies and functions they provide. Findings The result of the study shows that 'right to access' has not been well guaranteed by Korean law, as it does not provide the right to choose method and medium by information subjects and does not clarify the types of diverse information. This was clearly opposite with the other laws providing the right to choose what method and medium that subjects want with clarifying every types of personal information possible to be more. In addition, 'right to access' has not been well guaranteed by Korean companies in comparison with by the oversea companies which proactively guarantee the right by setting the function enabling subjects to browse their information through their websites or applications.

• The Korean Society of Law and Medicine
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• v.21 no.2
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• pp.37-73
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• 2020

Medical practice with medical adaptability is not illegal. Consent to medical practice is also not intended to exclude causes of Illegality. The patient's consent to medical practice is the exercise of the right to self-determination, and the patient's right to self-determination is take shape through the doctor's information. If a doctor violates his duty to inform, failure to inform or lack of inform constitutes an act of illegality of omission in itself. As a result, the legal interest of self-determination is violated. The patient has the right to know and make decisions on his or her own, even when it is not connected to the benefit of life and body as the subject of the body. If that infringed and lost, the non-property damage shall be recognized and the immaterial damage must be compensated. On the other hand, the violation of the duty of information does not belong to deny the compensation for physical damage. Which the legal interest violated by violation of the obligation to inform is the self-determination, and loss of opportunity of choice is recognized as ordinary damage. However, if the opportunity of choice was lost because of the infringement of the right to self-determination and the patient could not choice the better way, that dose not occur plainly bad results, under the prove of these causal relationship, that bad results could be compensated. But the unexpectable damage could not be compensated, because the physical damage is considered as the special damage due to the violation of the right of the self-determination.

• The Korean Society of Law and Medicine
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• v.18 no.2
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• pp.105-138
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• 2017

This is case comments of several representative legal cases regarding self- determination right of patient. In a case in which an intoxicated patient attempted suicide refusing treatment, the Supreme Court ruled that the medical team's respect for the patient's decision was an act of malpractice, and that in particular medical situations (medical emergencies) the physician's duty to preserve life supersedes the patient's rights to autonomy. Afterwards, at the request of the patient's family, and considering the patient's condition (irrecoverable death stage, etc.) consistent with a persistent vegetative state, the Supreme Court deduced the patient's intention and decide to withdraw life-sustaining treatment. More recently, regarding patients who refuse blood transfusions or other necessary treatment due to religious beliefs, the Supreme Court established a standard of judgment that can be seen as conferring equal value to the physician's duty to respect patient autonomy and to preserve life. An empirical study of legal precedent with regard to cases in which the physician's duty to preserve life conflicts with the patient's autonomy, grounded in respect for human dignity, can reveal how the Court's perspective has reflected the role of the patient as a decision-making subject and ways of respecting autonomy in Korean society, and how the Court's stance has changed alongside changing societal beliefs. The Court has shifted from judging the right to life as the foremost value and prioritizing this over the patient's autonomy, to beginning to at least consider the patient's formally stated or deducible wishes when withholding or withdrawing treatment, and to considering exercises of self determination right based on religious belief or certain other justifications with informed refusal. This will have a substantial impact on medical community going forward, and provide implicit and explicit guidance for physicians who are practicing medicine within this environment.

• Journal of Korea Entertainment Industry Association
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• v.15 no.8
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• pp.63-74
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• 2021

This study focuses on the increasing supply and consumption of affair dramas on TV with the theme of unconventional 'infidelity', therefore, is an empirical study that reveals factors related to the problem consciousness of married men and women about infidelity dramas that can affect the sexual socialization of married men and women. This study investigates the effect of married men and women's right to sexual self-determination between couples, personal psychological characteristics (emotional maturity, emotional alienation, self-perception), surrounding environmental characteristics (prevalence of extramarital relationships), and demographic background (gender, age, educational background, economic level) on 'the presence or absence of critical consciousness of infidelity dramas'. For the data of this study, an online survey is conducted on married men and women(614 people), and binary logistic analysis is conducted using SPSS. As a result of this analysis, first, 46% of married men and women have a relatively good level of critical awareness of affair dramas, and overall, the level of critical thinking of married men and women about the infidelity dramas is rather low. Second, there is no significant difference between genders in the perception of problems such as 'excessive beautification of infidelity', 'incitement of infidelity' and 'damage of family values', however, married women are more critical than married men regarding 'explicit sexual description', indicating differences according to gender characteristics. Third, for married men, the level of 'self-perception' and 'marital sexual self-determination right' have a significant effect on the critical mind with infidelity dramas. In the case of married women, it is found that 'the right to sexual self-determination' between married couples and 'emotional alienation' have a significant effect on 'the presence or absence of critical consciousness of infidelity dramas'.

• Journal of Digital Convergence
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• v.11 no.9
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• pp.21-27
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• 2013

With the advent of digital media environment, distribution way of information changes, legalization of the right to be forgotten is becoming increasingly necessary. However, too much emphasis on protection of personal information to hinder the development of the Internet industry and constitutional rights, including freedom of speech and right to know might be infringed. Thus, the scope of the right to be forgotten there is a need to clarify the rules. First, the rights of personal information can be divided into two. Right to be forgotten can be applied to the right to self-determination of personal information, but the right to self-determination information about social personality cannot be applied to. Second, in the digital media environment, old news article over the internet repeatedly distribution as the new damage is generating. Because old news article is a historical record, the right to be forgotten can not be applied. Thus, appropriate for digital media environment must find new ways.

• The Korean Society of Law and Medicine
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• v.15 no.1
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• pp.211-237
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• 2014

Because of unpredictability and high possibility of abnormal results by clinical trials compared to general medical behaviors, a procedure for ensuring with sufficient explanations by investigators must be secured. Therefore, in a sequence of clinical trials, what kinds of scope, stage, and method of explanations provided by investigators, including doctors or researchers, to trial subjects are closely related to the compensation for damages by violation of liability for explanation. In case of application of clinical trials to patients who have critical illness such as cancer, issues of "Quality of Life" regarding trial subjects, cancer patients, should be discussed. Especially, in case of clinical trials for terminal cancer patients, the right of subjects' self-determination, which is a fundamental principle in medical behaviors, should be discussed. The right of self-determination includes participation in clinical trials for the possibility of life-sustaining even a little bit, or no participation in clinical trials in order to have a time for completing the rest of his life. Like this, if the extent and scope of explanations related to the issues of "Quality of Life" are raised as main issues, the evaluation of "Quality of Life", should be a prerequisite. In many occasions, realistically, despite bad results such as deaths or serious adverse drug reactions after clinical trials, it may not be easy for compensating to trial subjects or their survivors, who requested civil compensation for damage. Futhermore, in abnormal results after concealment of clinical trials or performance of clinical trials without permission, and in the case of trial subjects' failures of proving proximate cause between the clinical trials and abnormal results, problematic results such as no protection to the trial subjects could be occurred. In performing clinical trials, investigators should provide sufficient explanations for trial subjects and secure voluntary informed consents from the trial subjects. Therefore, clinical trials without trial subjects' permissions and the informed consent process violate trial subjects' rights of self-determination, and the investigators shall be liable for compensation for damages. Then, issues might be addressed are what are essential contents of patients' "rights of self-determination" infringed by clinical trials without subjects' permissions. Two perspectives about patients' rights of self-determination might be considered. One perspective regards physical distress of patients (subjects) from therapies without sufficient explanations as the crux of the matter. The other perspective regards infringement of human dignity caused by being subjects without permission as the crux of the matter irrespective of risks' big and small influences. This research follows perspective of the latter. Forming constant fiduciary relation between investigators (doctors) and subjects (patients) pursuant medical contracts, and in accordance with this fiduciary relation, subjects, who are patients, have expectations of explanations and treatments by the best ways. If doctors and patients set this forth as a premise, doctors should assume civil liability when doctors infringe patients' expectations.