• The Korean Society of Law and Medicine
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• v.22 no.1
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• pp.57-90
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• 2021

Telehealth has been a hotly debated health policy issue in South Korea, mostly because the medical community - especially primary care practitioners - have strongly opposed it. As a result, telehealth has remained forbidden under law. However, the temporary permission of telehealth in Korea, as well as its exploding use in other countries, all in response to COVID-19, is re-igniting the discussion on telehealth in Korea. This article explores general legal issues that may arise if and when telehealth is fully implemented in Korea. The article's analysis shows that legislative changes are necessary to allow reimbursement of telehealth as well as remote purchase of medicine. The article also advocates introducing new evidentiary rules to curtail covert recording of telehealth sessions. On the other hand, additional legislation is probably not necessary to address the medical liability of physicians practicing telehealth or to adress much-discussed privacy issues. The existing laws in those domains are already robust enough to operate without much difficulty in the context of telehealth too.

• International Journal of Computer Science & Network Security
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• v.22 no.10
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• pp.400-405
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• 2022

Legislative approaches to regulating the digital sex industry are increasingly being debated at the international and national levels. There is a trend showing an increased interest in the decriminalization of sex work. At the same time, in many countries, activities related to digital prostitution remain criminalized. In this regard, it is important to analyze the international legal experience of the criminalization and decriminalization of digital prostitution, as well as to pay attention to the key problematic issues that arise during the criminalization and decriminalization of such an issue. The object of the study is the international experience of criminalization and decriminalization of digital prostitution. The subject of the study is social relations that arise, change, and cease during the criminalization and decriminalization of digital prostitution. The research methodology consists of such methods as philosophical, logical, special-legal, system analysis methods, and formal-dogmatic methods. Research results. As a result of the study of the international legal experience of criminalization and decriminalization of digital prostitution, it was concluded that the criminalization and/or decriminalization of digital prostitution is treated differently in different countries. Workers in this industry advocate decriminalization, not legalization, because decriminalization puts power directly in the hands of sex workers and creates no legal barriers. Countries that have decriminalized digital prostitution believe that sex work is real work and should be treated respectfully, and banning resources such as OnlyFans is not in favor of such workers. Regarding positions on the criminalization of prostitution, countries use different models of such criminalization, including the model of legalization of digital prostitution, which, on the one hand, allows prostitution, but establishes criminal liability for deviations from the rules established by the state.

• The Korean Journal of Air & Space Law and Policy
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• v.27 no.1
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• pp.75-101
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• 2012

As the Reublic of Korea revised the Commercial Code including 40 articles of air transport enacted newly on May 23, 2011, so Korea became first legislative examples in the Commercial Code of the developed and developing countries. I would like to explain briefly the main contents of my paper such as (1) history of enacting newly Part VI (air transport) in the Korea's revised commercial law, (2) legal background enacting newly Part VI (air transport) in the Korea's revised commercial law and the problems on the conditions of air transport, (3) every countries' legislative examples on the civil liability of aircraft's operator, (4) unlawful Interference Convention and general risk convention of 2009, (5) main contents and prospects of the revised Commercial Code for the liability of aircraft's operator etc as the followings. Meanwhile as the Aviation Act, Commercial Code and Civil Code in Korea and Japan did not regulated at all the legal basis of solution on the disputes between victims and offender for the amount of compensation for damage due to personal or property damage caused by aircraft accidents in Korea and Japan, so it has been raised many legal problems such as protection of victims, standard of decision in trial in the event of aircraft accident's lawsuit case. But the Korean Revised Commercial Code including Part VI, air transport regulations was passed by the majority resolution of the Korean National Assembly on April 29, 2011 and then the South Korean government proclaimed it on May 23 same year. The Revised Commercial Code enforced into tothe territory of the South Korea from November 24, 2011 after six month of the proclaimed date by the Korean Government. Thus, though Korean Commercial Code regulated concretely and respectively the legal relations on the liability of compensation for damage in the contract of transport by land in it's Part II (commercial activities) and in the contract of transport by sea in its Part V (marine commerce), but the Amended Commercial Act regulated newly 40 articles in it's Part VI (air transport) relating to the air carrier's contract liability on the compensation for damage caused by aircraft accidents in the air passengers and goods transport and aircraft operator's tort liability on compensation for damage caused by the sudden falling or collision of aircraft to third parties on the surface and so it was equipped with reasonable and unified system among the transport by land, marine and air. The ICAO adopted two new air law conventions setting out international compensation and liability rules for damage caused by aircraft to third parties at a diplomatic conference hosted by it from April 20 to May 2, 2009. The fight against the effects of terrorism and the improvement of the status of victims in the event of damage to third parties that may result either from acts of unlawful interference involving aircraft or caused by ordinary operation of aircraft, forms the cornerstone of the two conventions. One legal instrument adopted by the Conference is "the Convention on Compensation for Damage to Third Parties, Resulting from Acts of Unlawful Interference Involving Aircraft" (Unlawful Interference Convention). The other instrument, "the Convention on Compensation for Damage Caused by Aircraft to Third Parties" (General Risk Convention), modernizes the current legal framework provided for under the 1952 Rome Convention and related Protocol of 1978. It is desirable for us to ratify quickly the abovementioned two conventions such as Unlawful Interference Convention and General Risk Convention in order to settle reasonably and justly as well as the protection of the South Korean peoples.

• Journal of Legislation Research
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• no.53
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• pp.593-631
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• 2017

Like the technological competition of each country around commercialization of Autonomous Vehicles(the rest is 'AV'), legalizations are also in a competition. However, in the midst of this competition, the Ethik-Kommission Automatisiertes und vernetztes Fahren of Germany has recently introduced 20 guidelines. This guideline is expected to serve as a milestone for future AV legislations. In this paper, I have formulated a new legislative proposal that will incorporate the main content presented by the Ethik-Kommission. The structure is largely divided into general rules of purpose and definition, chapter on types of AV and safety standards, registration and inspection, maintenance, licenses for AV, driver's obligations, insurance and accident responsibilities, roads and facilities, traffic system, and chapter on penalties. The commercialization of AV in Korea seems to be in a distant future, and it is possible to pretend that it is not necessary to prepare legal systems. But considering our reality, leading legislation may be necessary. In this paper, I have prepared individual legislative proposals based on the essential matters based on the criminal responsibility in case of AV car accidents. To assure the safety of AV, AV and mode of operation were defined for more clear interpretation and application of law, and basic safety standards for AV were presented. In addition, the obligation of insurance and the liability for damages were defined, and the possibility of immunity from the criminal responsibility was examined. Furthermore, I have examined the penalties for penalties such as hacking in order to secure the effectiveness of the Act. Based on these discussions, I have attempted the 'Autonomous Vehicles Act', which aims to provide a basis for new discussions to be held on the basis of various academic fields related to the operation of AV and related industries in the future. Although there may be a sense of unurgency in time, the automobile industry needs time to prepare for the regulation of the AV ahead of time. And a process of public debate is also needed for the ecosystem of healthy AV industry.

• Journal of the Daesoon Academy of Sciences
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• v.40
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• pp.77-114
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• 2022

The purpose of this study is to analyze the ideological background, legal composition, and separation of powers contained within the institutional devices of The Dao Constitution based on the basic principles of the legal system, which would be embodied in The Constitution of the Republic of Korea. The ideological background of The Dao Constitution is that of the religion, Daesoon Jinrihoe. In Daesoon Jinrihoe, it is held that the Supreme God, Sangje, determined that Mutual Contention, the ruling pattern of the Former World, ran contrary to His divine will and this endangered the world as nature and humans had also fallen into Mutual Contention. As an act of divine intervention, Sangje established Mutual Beneficence so that nature and humanity could follow Mutual Beneficence as a paradigm shift culminating in a Great Opening of the universe. Sangje, the agent behind the paradigm shift, revealed His divine will that humans transform into mutually beneficent humans. Therefore, The Dao Constitution was written to be a set of fundamental norms based on the 'rights and obligations of the members of Daesoon Jinrihoe' to accept and implement the will of Sangje as it applies to each member's mission. The legal composition of The Dao Constitution consists of the body and supplementary provisions. The text consists of general rules, moral rights and obligations, origins, and institutional devices. Institutional devices include the Central Council, the Institute of Propagation and Edition, the Institute of Religious Services, Works, Financial Management, and the Institute of Audit and Inspection. The legal composition of The Dao Constitution is similar to that of the Constitution. The difference is that while the Constitution applies a 'principle of maximum rights and minimum obligations,' The Dao Constitution stipulates more obligations than rights in order to complete the mission of the members. The principle of separation of powers is applied to the institutional devices in The Dao Constitution. In The Dao Constitution, the organizational form of the central headquarters has been divided into a 'before and after' scheme surrounding the death of Dojeon. The organizational form of the central headquarters prior to Dojeon's death was similar to a Constitutional Monarchy. After the death of Dojeon, the central headquarters' organizational form became similar to a parliamentary cabinet system. The separation of powers at central headquarters is divided among a legislative power (the Central Council), an executive power (the Institute of Religious Services), and a judicial power (the Institute of Audit and Inspection). The separation of powers within the functions of the central government first occurs between the Central Council and its employees, then between the Central Council and the Institute of Auditing and Inspection, and also between the Legislative Government and the Institute of Religious Services. Furthermore, the principle of a vertical separation of powers exists between the central headquarters and the local organization.

• The Journal of the Korea Contents Association
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• v.17 no.12
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• pp.180-190
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• 2017

This is Kangwon Land casino case due to the damages of betting money, which is likely to affect the contents industry in the future. The reason why the gambler and his family's suit is that why the manager did not control their own access or did not supervise the wagering rules. The provisions of the "Restriction on the amount of money to be paid to the casino" in the Article 14 of the Enforcement Decree of the Act on the Support for the Development of the Abandoned Mine Area are not intended to increase the duty of the casino managers. It is just one of many public regulations imposed. No matter what legislation is made for public interest, it can not be considered equally in the private duty. If so, too much effort will be required to enact or amend the public law and this makes the legislative activity impossible. The Act on the Restriction on Access to the Casino shall be construed accordingly. From the point of view of economic efficiency theory, if we overestimate statutory duties (liability for compensation) excessively, the price goes up on the market, and the volume of transaction decreases drastically. This reduces the economic utility of resources in the society as a whole (total output, foreign currency acquisition amount, etc.).

• 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 the Korean Society of Marine Environment & Safety
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• v.22 no.5
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• pp.430-443
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• 2016

This paper involves the constitutionality of the restrictive by-laws established by the 'College of Maritime Science' at the 'Korea Maritime and Ocean University' when they affect the cadet's fundamental rights, particularly, in connection with the training system of the 'Merchant Cadet Dormitory.' The issue in question is whether the school regulations may fall within a judicially permissible boundary in light of the general principles of constitutional rights in that the rules are enacted by the school itself in accordance with the Article 31, Section 4 of the Constitution and largely regulate the cadets' living conditions on a campus. However, the general scrutiny standard the courts apply requires the school enactments to pass three tests to be justified: (1) legislative authorization, (2) proportionality and (3) non-infringement on the essential elements of the fundamental rights as articulated under Article 37, Section 2 of the Constitution. The review in this paper shows that, first, the by-laws at issue find themselves statutorily authorized by the 'Higher Education Act' and the 'Decree of the Establishment of National Schools', with the proportionality as a second part observed within a justifiable scope and the essential elements of the fundamental rights as the third point not being marred. In conclusion, the school's dormitory training system is not found to cross the line and, however, the school authorities still need to keep overseeing the overall training course to secure the constitutional proportionality.

• The Korean Society of Law and Medicine
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• v.14 no.1
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• pp.355-401
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• 2013

The first legislation for terminal health-care decision was California's Natural Death Act (NDA) of 1976 that permitted any adult person to execute a directive directing the withholding or withdrawal of life-sustaining procedures. Advance directive legislation has subsequently progressed on a state-by-state basis. By 1992, all 50 states, as well as the District of Columbia, had passed legislation to legalize some form of advance directive. This state legislation, however, has resulted in an often fragmented, incomplete, and sometimes inconsistent set of rules. Statutes enacted within a state often conflict and conflicts between statutes of different states are common. In an increasingly mobile society where an advance health-care directive given in one state must frequently be implemented in another, there is a need for greater uniformity. In 1993, the Uniform Law Commissioners approved the Uniform Health-Care Decisions Act (UHCDA) in order to bring order to the existing chaos. Unfortunately, the Commissioners waited too long to act. By the time the UHCDA was approved, nearly all states had passed legislation governing advance directives. Consequently, the UHCDA has achieved only a limited success, picking up but one or two enactments a year. The UHCDA is currently in effect in around 10 states: Alabama, Alaska, California, Delaware, Hawaii, Kansas, Maine, Mississippi, New Mexico, Tennessee, Wyoming. In these states the previous laws related to the subjects have been all repealed. The overall objective of the UHCDA is to encourage the making and enforcement of advance health care directives including living will or individual instruction, power of health-care attorney and to provide a means for making health care decisions for those who have failed to plan. The U. S. House of Representatives in 1991 enacted the Patient Self-Determination Act (PSDA). The Act stipulates that all hospitals receiving Medicaid or Medicare reimbursement must ascertain whether patients have or wish to have advance directives. The Patient Self- Determination Act does not create or legalize advance directives; rather it validates their existence in each of the states. Now in America, terminal health-care decision or advance directive for health care is common and universal system. The problem, however, is how to let more people use these good tools to make their lives more beautiful and honorable.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.31
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• pp.3-25
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• 2006

This study focus on interest for arrears and filling of the gaps left in Article 78 of CISG. In the case of CISG, Article 78 provides for interest any time a payment under a contract is untimely, but does not specify a particular rate of interest or a method to determine such a rate. This issue did not cause any uncertainty under ULIS, the CISG's antecedent, since Article 83 of ULIS provided for 1%p above the official discount rate in the creditor's country. Lacking any CISG general principle as well as any indication by the very same CISG, one can only conclude that the matter must be deferred to the domestic rule of private international law. Actually, resorting to private international law is not only admissible, but expressly required by Article 7(2). In the interpretation and filling of the gaps left in Article 78, there is a considerable difference of opinion especially amongst commentators on whether the gap is a lacuna praeter legem, i.e., one being governed by, but not expressly settled in the CISG, or whether it is an issue falling outside the scope of application of the CISG, i.e. a lacuna intra legem. The protagonists of the former view lay emphasis on the overall objective of the CISG, namely to create a uniform law, whereas the supporters of the latter view refer to the legislative history of Article 78 as the dominant principle in interpreting Article 78. Some authors believe that the issue of determining the rate of interest is not dealt with by CISG and it is, therefore, governed by the applicable domestic law, which is the subsidiary law applicable to the sales contract, since "no special connecting points seem to have developed for the entitlement to interest." In the light of the relevant case law, it seems correct to conclude that the interest rate is not determined by CISG and that courts normally determine it according to their own rules of private international law. While CISG Article 78 expressly does not deal with this issue, PICC Article 7.4.9 and PECL Article 9.508, on the other hand, set forth a precise method for computing interest. Although a method like the one set by PICC may be useful and may encourage uniformity, it still cannot be used under the CISG. The PICC or PECL formula may, however, be a very good starting point in a de jure condendum analysis when a new Article 78 will be drafted, if an interest rate method will ever be embodied in the text of an international convention.