• The Korean Society of Law and Medicine
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• v.10 no.1
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• pp.39-75
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• 2009

The development of the biomedical science and technology has extended an argument about a status in constitutional law of unborn human life and a protection of the potential human life to that of an embryo and a gamete beyond a fetus. This argument has been focused on whether we should provide unborn or potential human life with human dignity and the right to life that are guaranteed by the constitutional law altogether or separately. If the right to life is given to unborn or potential human life, on what grounds can we restrict this right. Those who argue for the unity of the right to life with human dignity and the inseparability of those two claims that the right to life in itself should be guaranteed absolutely. According to the constitutional law, however, any constitutional right of the human person within the protection of essential part of the right can be compared with each other and restricted with some valid reasons from the legal perspective. This measure is unavoidable in reality because one right can come into conflict with another right frequently. Since fetus and embryo are in a process of developing into the human person, it is difficult to think that they are the same with the human person. For that reason, it is hard to consider that the right to life of fetus or embryo is the same with that of the human person. However, since a fetus has a special status as a potential human person, and an embryo also has a special value as a potential fetus upon an implantation, the right to life of fetus or embryo should be judged differently according to the stage of their development. A study on a constitutional status and protection of a fetus and an embryo is essential because unborn or potential human life is the origin of human person. Therefore, we have to make much account of their right to life and seek the legal respect for their inherent value.

• The Korean Society of Law and Medicine
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• v.13 no.1
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• pp.11-40
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• 2012

National Health Insurance Act has been enforced all over the People as part of the effort to assure the minimum constitutional human worth and dignity in the aspect of the right to pursue health for preventing misfortune that comes to death without even a chance to be received treatment for illness or injury. Meanwhile auto insurance is compulsory in certain parts in order to promote benefits of everyday life and the rapid recovery of the damage caused by traffic accident when one have negligently driven a car which has become the necessities in daily life. Any injured driver in a traffic accident can be treated by National Health Insurance without getting an auto insurance in various circumstances, but Article 3 paragraph 2 of Traffic Accident Act don't allow exception of criminal punishment when he has driven a car without license, drunken, or tresspassing the centerline, etc. When the injury occured by his own certain negligence is judged to 'when he has intentionally or through gross negligence caused a criminal conduct or intentionally contributed to the occurrence of an accident' of National Health Insurance Act, insurance benefits can be restricted. Such a restriction could harm the right to pursue happiness and health of People by depriving the poor, who cannot afford to pay, of chances to get treatment. Here we will see benefit restriction by 'gross negligence' of National Health Insurance Act Article 48 paragraph 1, which has largest portion of such restriction. It is desirable to delete 'gross negligence' clause from above paragraph and to interpret 'when' clause restrictively for diminishing confusion of interpreting and guaranteeing the right of health.

• Journal of Information Science Theory and Practice
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• v.9 no.3
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• pp.31-41
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• 2021

The growing number of threats to society through the uncontrolled distribution of information is forcing library communities in many countries to reconsider their views on free access to collections. Based on the content of numerous documents of international importance, it can be concluded that in any democratic country access to information is one of the most important human rights, along with the right to life, liberty, and security of person. However, the state has the right to restrict citizens' access to information within the framework of existing legislation. Constantly, restrictions on access to information are established in order to protect the ethical foundations of the constitutional order, morality, health, rights, and legitimate interests of others, to ensure the country's defense and state security. It goes without saying that each country has the right to independently decide where the boundaries lie between permitted and prohibited information, including printed information, contained in library collections. This article describes three levels of access restriction: foreign, state, and regional. The authors have analyzed the legal and regulatory documents that govern libraries, as well as the reasons and methods of limitation. A comparative analysis of the restriction of access to information in the countries of Europe and Asia is presented.

• Korean Security Journal
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• no.10
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• pp.215-242
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• 2005

As CCTV can be an effective tool to prevent or suppress crime at low cost, they have been widesoread in developed countries. In spite of their effectiveness, they infringe some constitutional rights such as the right to privacy, the right of likeness and the right to control over personal information. The police and ward offices install CCTV in public areas to prevent crimes without a legal basis or standard. When information obtained in such a way is used as investigation data for the police or as an evidence in a court, it can cause serious trouble. To solve this problem, legal restriction on the installation of CCTV as should be clearer. Since current laws on public agencies' protection of personal information are too general, they are not effective enough to protect personal information. Therefore, Personal Information Protection Organic Act should be enacted to make a legal basis for protecting comprehensive personal information. It should be obvious who installs CCTVs, who pay for the cost and how they are managed. Before installation, the police and ward offices should obtain residents' consent through a public hearing or voting (on the range and purpose of installation), or conduct an impact assessment. During installation, CCTVs should be limited to prevent or suppress crimes, keep public order and void dangers. In case of making a sign of installation, it must specify its rights. After installation(operation/management phase), they should abide by principles of information protection and try not to infringe constitutional right. In the cognitive aspect, the police should constitutional rights must be secured although it is important to carry out their missions. The police should serve citizens and change to the police of communities. Citizens should understand that constitutional right can be infringed if public order is not maintained. When citizens cooperate with the police, they fear of crimes will decrease.

• Journal of the Korea Institute of Information Security & Cryptology
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• v.20 no.6
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• pp.271-288
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• 2010

In this paper, we study the dysfunctions of cryptography as dual-use goods and national domestic encryption control policies like key recovery system and decryption order. And we examine risks of the breach of the peoples' constitutional rights like the right to privacy in these policies and analyze these policies by applying the principle of the ban on the over-restriction. Finally, we propose the direction and requirements of our national domestic encryption control policy that maintains the balance of peoples' constitutional rights and investigatory powers.

• Korean journal of communication and information
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• v.39
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• pp.69-101
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• 2007

Some clauses of the prior review rules for broadcasting commercials, which are enforced by the Broadcasting Act violate the right to free speech guaranteed by the Constitution. The range of prohibited expression under the clauses are too vague and overbroad to distinguish between permissible and impermissible broadcasting commercials. The clauses also fail to pass the constitutional principle that restrict government from excessive regulation on constitutional rights. The principle has a four-pronged test on the government action; 1) the validity of its goal; 2) availability of appropriate means; 3) necessity of infringement; 4) and balancing test of interests. Some clauses of the prior review rules that forbid expressions on sensitive political and cultural issues fail to pass none of the four-pronged standards.

• Korean Security Journal
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• no.46
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• pp.113-140
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• 2016

Right to counsel means a defendant has a right to have the assistance of counsel (i.e., lawyers), and if the defendant cannot afford a lawyer, requires that the government appoint one or pay the defendant's legal expenses. The right to counsel is generally regarded as a constituent of the right to a fair trial. Historically, however, not all countries have always recognized the right to counsel. The right is often included in criminal law and constitutional law etc. First, any person who is arrested or detained shall have the right to prompt assistance of counsel. When a criminal defendant is unable to secure counsel by his own efforts, the State shall assign counsel for the defendant as prescribed by act in article 12(4) of the constitutional law. Second, the defense counsel or a person who desires to be a defense counsel may have an interview with the defendant or the suspect who is placed under physical restraint, deliver or receive any documents or things and have any doctor examine and treat the defendant or the suspect in article 34 of the criminal law. Nonetheless, problems about guarantee of the rights to counsel to the national security violators like spy terrorist and etc will be important for Koreans to consider. That is because national security violators's cases are qualitatively different from general criminal offense's cases and historically, lawyer obstruct a investigation in the process of examination of a suspect for national security violators. Therefore, this study suggest a way that a restriction the rights to counsel with an attorney in cases of the national security violators. To this end, in this paper, I touch on restriction of right to counsel during interrogation in the England and Germany etc in comparison to that of Korea and review Korea's Supreme Court decision and Constitution Court decision to understand the prospective and trends for Korean investigation procedure improvement.