간행물

중앙법학회> 중앙법학

중앙법학

CHUNG-ANG LAW REVIEW

  • : 중앙법학회
  • : 사회과학분야  >  법학
  • : KCI등재
  • :
  • : 연속간행물
  • : 계간
  • : 1598-558x
  • :
  • :

수록정보
수록범위 : 1권0호(1999)~17권4호(2015) |수록논문 수 : 835
중앙법학
17권4호(2015년 12월) 수록논문
최근 권호 논문
| | | |

KCI등재

1빅데이터,사물인터넷 시대 개인정보보호법 제의 발전적 전환을 위한 연구

저자 : 최경진 ( Kyoung-jin Choi )

발행기관 : 중앙법학회 간행물 : 중앙법학 17권 4호 발행 연도 : 2015 페이지 : pp. 9-52 (44 pages)

다운로드

(기관인증 필요)

초록보기

A threshold of personal information protection law in Korea trace back to Act on the Protection of Personal Information Maintained by Public Institutions. According to the necessity of personal information protection on the internet, Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. was enacted. As online and offline have been converged since then, Personal Information Protection Act was newly enacted as a law to eliminate blind spot in personal information protection. It was already over four years after its legislation and there has been big change in our society that every people recognizes personal information as one of most important value in our society. Such change of understanding becomes very basic foundation for jumping to developed country. However, there have been some critical issues on personal information protection law system in this paper, such as lack of harmony among personal information protection laws, excessive regulation clauses in Personal Information Protection Act, and the issue of obstructing development of new technology and service like big data or internet of things. Meanwhile, big data or internet of things are emerging as a cutting-edge global competition power. So many developed countries are trying to promote such advanced industry. In this point, we need to pay attention to harmonize the use and protection of personal information. From such perspective, this paper deals with improvement direction of personal information protection law system in Korea. Our possible reform plan is as following: specification and rationalization of purpose of personal information protection law system, specification of personal information definition, emphasizing autonomy and responsibility, harmonization among personal information protection laws, limitation of excessive civil and penal liability, switch from formal regulation to substantial regulation in regulatory framework, guarantee of legitimate and non-infringing use of personal information, establishment of effective regulatory framework for cross-border transfer of personal information, etc. Now is the time to improve our personal information protection law system to promote protection of personal right and guarantee the use of personal information.

KCI등재

2인권법 측면에서 일본의 혐한 시위의 문제점 및 우리 사회에의 시사점 연구

저자 : 장민영 ( Min-young Jang )

발행기관 : 중앙법학회 간행물 : 중앙법학 17권 4호 발행 연도 : 2015 페이지 : pp. 51-88 (38 pages)

다운로드

(기관인증 필요)

초록보기

Japanese hate speech against Koreas cannot be allowed any more although it has been acquiesced under the pretext of respect of freedom of expression. Demonstrations and rallies with extreme hatred targeting Koreans have increased in Japan from last years. Japanese legal system has not regulated these demonstrations and rallies on the ground that the Constitution of Japan protects the right of freedom of speech, assembly and association. However, some efforts to prohibit Japanese hate speech against Koreas have been recently made but also the Supreme Court of Japan has judged illegality of Japanese hate speech against Koreans in a case regarding pro-Pyongyang elementary school. The important thing is that universal human rights regime has considered these demonstrations and rallies as a kind of hate speech and warned incompatibility of these demonstrations and rallies with international human rights law. Universal human rights norms ban hate speech. The International Covenant on Civil and Political Rights, ICCPR, prohibits any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. The International Covention on the Elimination of Racial Discrimination, ICERD, forbids all dissemination of ideas based on racial or ethnic superiority or hatred, expression of insults, ridicule or slander of persons or groups and participation in organizations and activities which promote and incite racial discrimination as well as hate speech under the ICCPR. Furthermore, the ICERD requires States Parties to criminalize these hate speech. International human rights bodies determine that States Parties must take all necessary measures to eradicate hate speech. Many hate speech against Koreans in Japan might constitute hate speech under the ICCPR and the ICERD which Japan ratified or accepted and, therefore, are legally binding in Japan. Consequently, Japanese hate speech against Koreas should not be permitted any longer and Japanese government needs to take appropriate measures to eliminate it. Research of Japanese hate speech against Koreans from the perspective of universal human rights law gives great implication into Korean society. Recent rapid increase of foreigners staying in Korea and naturalized Koreans might cause hate speech issues in Korea. Unfortunately, Korean law and policies do not properly regulate hate speech which has been unconsciously pervasive in Korea. Both of the ICCPR and the ICERD are legally binding in Korea which ratified or accepted them. Accordingly, Korean government must implement the duties of States Parties under those treaties. Moreover, it is interpreted that the government is obliged to protect any persons from hate speech under the Constitution of Korea. Therefor, legislative, administrative and judicial measures to ban and prevent hate speech in Korea need to be prepared and operated. First, Korean law must not only prescribe clear prohibition of hate speech but also criminalize actions regarding hate speech under the ICCPR and the ICERD. Second, national plans to eradicate hate speech must be established and managed periodically and systematically and awareness-raising programs against hate speech need to be run consistently. Third, judical procedures must be provided in regard to abolition of hate speech. Fair judicial system for victims of hate speech is indispensible and hate speech issues need to be considered during determination of punishment or calculation of damages. After criminalization of hate speech, offenders regarding hate speech should be investigated or prosecuted if necessary.

KCI등재

3노후산업단지의 경쟁력강화제도

저자 : 이종영 ( Jong-yeong Yi ) , 조우성 ( Woo-seong Cho )

발행기관 : 중앙법학회 간행물 : 중앙법학 17권 4호 발행 연도 : 2015 페이지 : pp. 89-131 (43 pages)

다운로드

(기관인증 필요)

초록보기

Law policy about industrial complex and management which made primary contribution to Korea``s economic development which is role model in world history, should change in accordance to the industrial structure and characteristics of the time. Industrial complex which was made in order to push forward the economic development since the 1960s had played a pivotal role of Korea``s manufacturing industry and had led economic growth as a major industries. As time goes by after the completion of construction, industrial structure had changed from the large-scale equipment industry to the small-scale and high-tech knowledge industry. Industrial complex needed change and response in accordance with this change, but because of the deterioration of infrastructure competitiveness of the complex is getting reduced. And it also raised urban problems like air-pollution, noise and traffic jam as industrial complex had incorporated into the city. Re-establishing an decrepit industrial complex to competitive industrial can be derived from one state``s industry promotion project. Current "INDUSTRIAL SITES AND DEVELOPMENT ACT", "INDUSTRIAL CLUSTER DEVELOPMENT AND FACTORY ESTABLISHMENT ACT" and "SPECIAL ACT ON VITALIZATION AND STRENGTHENING COMPETITIVENESS OF DECREPIT INDUSTRIAL COMPLEX"(hereinafter referred to as the "DECREPIT INDUSTRIAL COMPLEX ACT") involve Regeneration project system, Projects for upgrading structures of industrial complexs system, and Strengthening competitveness project system each, in order to revitalize decrepit industrial complex. But, Regeneration project and Projects for upgrading structures of industrial complexs deal with substantially same matter in different part of the system and legal basis, but in reality it shows similar way how to check and resolve the problem about decrepit industrial complex. During more than 20 years have elapsed after After ground was broken which decrepit industrial complex for strengthening competitiveness just as the industrial complex, The recently enacted DECREPIT INDUSTRIAL COMPLEX ACT is limeted national industrial complex and industrial complex in general to main role of development and a healthy national economic development. DECREPIT INDUSTRIAL COMPLEX ACT are looking to old age based industrial complex to concentrate the budget and the competence that the important role the reason for limiting the industrial complex as a target of strengthening competitiveness to the development of the national industry. In this respect Regeneration project and Projects for upgrading structures of industrial complexs due to “INDUSTRIAL SITES AND DEVELOPMENT ACT” and “INDUSTRIAL CLUSTER DEVELOPMENT AND FACTORY ESTABLISHMENT ACT” means in terms of the system that target the decrepit industrial complex that does not belong to the subject of DECREPIT INDUSTRIAL COMPLEX ACT. In the long run, projects for strengthening competitiveness of industrial complex suited in terms of reunification of system and aspects the effective budget that allows it to be promoted as a unified DECREPIT INDUSTRIAL COMPLEX ACT.

KCI등재

4현행법상 원격의료의 허용범위에 관한 법적 고찰

저자 : 강의성 ( Eui-sung Kang ) , 최종권 ( Jong-kwon Choi )

발행기관 : 중앙법학회 간행물 : 중앙법학 17권 4호 발행 연도 : 2015 페이지 : pp. 133-165 (33 pages)

다운로드

(기관인증 필요)

초록보기

The Korea government is scrambling to several pilot projects for the activation of telemedicine services. In 2003, at the time of the first regulations relating to telemedicine on medical law, the purpose of legislation was only intended to take advantage of medical personnel's knowledge of the professional sector engaged in a large medical institutions from a distance. But information & communication technology and medical technology have developed rapidly over the past 10 years, to keep pace with development, the government aims to extend telemedicine services focused on a form that doctors can diagnose and prescribe through the patient's status directly via a variety of electronic devices in the patient's house or the outside, not medical institutions. Medical treatment is in a field required a high level of expertise to deal with human life and human body. Accordingly, the expansion of telemedicine has problems with that the medical non-specialist in remote locations are made through the parameters of medical care, so telemedicine policy should be necessarily required to a legal basis. However, it is still controversial in the medical law whether it is possible to care many patients outside medical institutions by using information and communication equipment with physicians in other regions. The government is not analyzing clearly each remote medical treatments, these attitudes are revealed in the process of pilot projects for telemedicine services. Since technology development and application of telemedicine services is done within legal permissible range, it is very important matter that setting a range of medical treatments which may be made remotely in the current law. But, in order to determine the permissible range of remote medical treatments, The prior review is needed whether in-person medical treatments between patients and physicians are the fundamental principle in the current law. After reviewing the significance and scope of in-person medical treatments, hence it will be considered whether to allow or deny remote monitoring, remote examination, remote diagnosis, remote prescription. Furthermore, the permissible range of telemedicine services under the proposed revision will be reviewed by each remote medical treatments through the review of currently promoting the Medical Service Act Revision.

KCI등재

5고령자 운전규제에 관한 법적 고찰 -운전면허제도를 중심으로-

저자 : 백옥선 ( Ok-sun Baek )

발행기관 : 중앙법학회 간행물 : 중앙법학 17권 4호 발행 연도 : 2015 페이지 : pp. 165-199 (35 pages)

다운로드

(기관인증 필요)

초록보기

The issues of elderly drivers in aging societies are growing as an area of interest not only in South Korea but also internationally. However, the current Road Traffic Act , including Passenger 「Transport Service Act」 and 「Trucking Transport Business Act」 regarding company vehicle laws, do not have a legislative system that allows for the early recognition and prevention of accidents due to elderly drivers' abilities. As many elderly drivers are behind the wheel without adequate testing of their physical and mental capacity to drive, it is crucial to review the drivers' license system to solve the issues of elderly drivers before the expected increase in elderly driver's problems with the aging of the baby boomer generation. It is important to carefully approach the issue of modifying driving restrictions on elderly drivers. The need for caution in approaching the issues of elderly drivers comes from the various aspects of the problem. While there is a need to maintain and strengthen driving restrictions of elderly drivers to secure road traffic safety, on the other hand, the restriction of elderly drivers may prevent the freedom of movement amongst the aging population and thus bring about issues regarding aging population problems. This research distinctly clarifies that as strong driving restrictions are not placed on the elderly as a direct response to their age, driving restrictions on elderly drivers should not only maintain a fundamental perspective of restricting high-risk drivers but also aim to establish rational restrictive criteria based on the age of the elderly driver. Through this approach, it can be consider socially acceptable. This paper aims to draw legislative measures for future modifications of driving restrictions on elderly drivers through reviewing and establishing the problems with current legislations and legal implementations of driving restrictions on the elderly. Research includes discussions on, the constitutional legitimacy of applying stronger restrictions on elderly drivers as compared to general drivers, and methods of restrictions and how the settings of restrictions should be established for elder drivers in the future. In addition, examples of legislation in other countries have been reviewed and proposals for methods of legislative improvement for the modification of elderly driver's driving license system are given.

KCI등재

6앱 마켓의 양면시장성과 마켓 운영의 투명성 제고에 관한 법정책적 연구

저자 : 김두원 ( Du-won Kim )

발행기관 : 중앙법학회 간행물 : 중앙법학 17권 4호 발행 연도 : 2015 페이지 : pp. 201-233 (33 pages)

다운로드

(기관인증 필요)

초록보기

App Market can be seen that it contain much the nature of platform when viewed under current competition law systems. App Market operators are in position as e-commerce vendors and market dominant operators at the same time. This means that App Market operators are lying in the strong position, in an independent position, to impose restrictions on both sides made any number of transactions. Settlement cancellation problems are being solved by a reasonable way, but these are in a situation which is made through app developers' constant problem-posing and communications about issues that may occur in the domestic market by communicating with app market operators. This, meanwhile, is a question of whether the App Market space that has complete freedom of entry & withdrawal as a perfect competition and contain the nature of public good equipped with the environment to be available for anyone is the basis for determining the behavior of the App Market. If the role of the App Market operators is only an offer of a completely free market space, their intervention will be banned as it possible, but App Market operators, by chance, are in the role as mediator who can impose necessary regulations for the smooth market operation, they can be justified that they will apply various sanctions against the market disorder acts. For that reason, App Market operators should be involved in regulating as a responsible post with the domestic legal position as well as pursuing profits. Blocking the App posts by App Market operators is recognized the rationality of block policy, however, because it would be able to give developers a feeling of being mistreated that the app with the enthusiasm of developers could be blocked without any explanation, so eventually the way to clear up the problems is only to communicate. As a matter of fact, cost-bearing by App Market operators is issued, but, if App Market operators block the App posts, they should maintain a posture that guides developers thoroughly to all the way to recognize and supplement for problems, that is the process of finding a balance between regulation and self-regulation. While constantly monitoring with respect to the terms and conditions of the companies in the Korea Fair Trade Commission, though regulations are not completely tied up companies, in a time of blocking the app posts, the authorities should amend the existing laws such as 'ACT ON THE REGULATION OF TERMS AND CONDITIONS' and etc. to impose the corresponding obligation to explain or respond to developers, or establish a new integrated global corporate law including provisions related to the corresponding obligation of App Market operators to developers and the settlement cancellation of App Purchase or In-App Purchase. Finally the authorities should consider the policy that can be predicted how the regulation apply and that developers & consumers can all be reasonably accommodated.

KCI등재

7분묘기지권의 재해석

저자 : 사동천 ( Dong-cheon Sha )

발행기관 : 중앙법학회 간행물 : 중앙법학 17권 4호 발행 연도 : 2015 페이지 : pp. 235-259 (25 pages)

다운로드

(기관인증 필요)

초록보기

When interpreting paragraph 3, Article 27 of the Funeral Law, the Right of Graveyards is not affected before and after the enforcement despite of the enforcement of the Funeral Law. However, it is interpreted that all 3 types of acquiring the Right of Graveyards are accepted after the enforcement of the Funeral Law, but the one who acquired the Right of Graveyards in those ways cannot resist to the owner of the land and so on. In other words, this policy only ruled whether one can resist to the owner of the land; it did not directly mention the judicial right. The Right of Graveyards is a real right to purpose the use and the profit so that holder of the right can claim anyone the right and nobody can arrogate it; however, when the Right of Graveyards is installed after the enforcement of this law, if he did not receive the consent of the landowner, the one who has the Right of Graveyards cannot resist to the owner of the land. Thus, it is interpreted that an acquisitive prescription of the Right of Graveyards after legislation of the Funeral Law is accepted, the grave owner acquires the Right of Graveyards when transferring land without the settlement related to the grave, and the Right of Graveyards can be acquired when installing the grave by use approval of the land. Only by this interpretation, the grave owner can ask for responsibility of tort liability when a third person, not land owner, invade the grave. Also since only the grave owner can enjoy the possession of the grave, it can be interpreted that even the grave that is installed illegally without a right title does not accord with the land. It is because that the grave is interpreted to the component of the land, so it cannot be considered as the possession of land owner. Naturally, it can be thought that only corpse or remains is possessed by the grave owner and the grave itself is accorded with the land, but since the grave is meaningful when the corpse, remains, burial mound, and graveyards are all gathered together, this possibility of interpretation can be blocked. On Article 19, paragraph 1 of the Funeral Law, when considering installed the installation time period of the graves and the enforcement date of the law, the installation time period of the graves that is installed before the enforcement date of the law means the enforcement date of the law, and it can be considerable when interpreting the installation time period to 15 years from the enforcement date of the Funeral Law. When the installation time period of 15 years elapses, despite of the Funeral Law, Article 19, paragraph 2, there is no permission of land owner; thus, by the Funeral Law, Article 27, paragraph 3, the grave owner cannot claim the Right of Graveyards to the land owner. The surface rights is valid regardless of the existence of the things on the ground, and expires when the installation time period terminates; however, the Right of Graveyards demand about requirement for establishment and requirement for continuity to exist the grave. Thus, the Right of Graveyards does not lapse only when the installation time period terminates; it should be printed that it lapses when actually tearing down the things installed in the grave. (refer to the Funeral Law, Article 19, paragraph 2). When interpreting the Funeral Law, Article 19, paragraph 2, the law only provides the rule that the installation time period of the grave should be extended when related party to the grave requests to do so; however, it overlooks that the ownership of the land owner can be invaded. According to the fact that it is a mandatory provision, it is an important legislative defect. Therefore, it should be restrictively interpreted that when the period of the Funeral Law, Article 19, paragraph 1 expires, one who occupies the land by the Right of Graveyards cannot affect the land owner despite of the permission of extension, unless the land owner agrees with it. In this case there is no permission of the land owner, so it should be considered that the grave owner cannot claim the right to the land owner by the Funeral Law, Article 19, paragraph 1.

KCI등재

82013년 「채무불이행법 개정안」에 관한 약간의 검토 -특히 불완전이행에 관한 규정을 중심으로-

저자 : 김대정 ( Dae-jeong Kim )

발행기관 : 중앙법학회 간행물 : 중앙법학 17권 4호 발행 연도 : 2015 페이지 : pp. 261-300 (40 pages)

다운로드

(기관인증 필요)

초록보기

This paper is focused on my opinion that aims to investigate problems in the provisions on the Non-performance especially Incomplete-Performance in the Draft 2013 of the Korean Civil Code, and to present a alternative proposal for this issue. To achieve the aim of this paper, in the first place I have analyzed the phase of the theory of Incomplete-Performance by investigating the system of regulations of the current Korean Civil Code on the Non-Performance, and by investigating whether or not the theory of Incomplete-Performance(it means an incomplete-performance or a positive violation of the obligatory right that provokes the expanded prejudice to creditor) is approved as a resonable theory of interpretation of the current Korean Civil Code, and by investigating whether the theory that insist the §390 of the current Korean Civil Code is a positive legal basis of the theory is right or not. Through these investigations I have arrived at the conclusion that while we admit the §390 of the current Korean Civil Code covers incomplete-performance, from this it is not necessarily drawn the conclusion that the concept of the Incomplete-Performance of this provision covers a positive violation of an obligatory right that provokes the expanded prejudice to the creditor that means primarily a tort liability, it should be regarded that whether the §390 of the current Korean Civil Code covers a positive violation of an obligatory right that provokes the expanded prejudice to the creditor or not is entrusted the theory and the judicial precedents. The Draft 2013 of the Korean Civil Code propose to stipulate the claim rights of “nacherfullung”(it means a right of creditor to demand making subsequent completion) that has been dicussed for a long time in lecturing theory as an effect of incomplete- performance. However under the present circumstances that the theory and the judicial precedents about the claim rights of “nacherfullung” is not yet clearly established, and what``s more, the endeavor to revise the Law of Seller's Warranty has been aborted, the revision of the §390 of the Korean Civil Code by stipulating the claim rights of “nacherfullung” as a general effct of the Incomplete-Performance might provoke a serious disoder in the interpretation of the legal conditions and effect of the claim rights of “nacherfullung” in relation with the Seller's Warranty. Therefore I think that it is desirable to delete temporarily the provisions about the claim rights of “nacherfullung” in the Draft 2013 of the Korean Civil Code, and to stipulate it after ending full discussion about the claim rights of “nacherfullung” and when the Law of Seller's Warranty will be revised.

KCI등재

9일방적(一方的) 상행위주의(商行爲主義)에 관한 상법 제3조 소윤(小輪)

저자 : 임중호 ( Joong-ho Lim )

발행기관 : 중앙법학회 간행물 : 중앙법학 17권 4호 발행 연도 : 2015 페이지 : pp. 301-330 (30 pages)

다운로드

(기관인증 필요)

초록보기

Nach § 3 KHGB kommen die Vorschriften uber Handelsgeschafte fur beide Parteien auch dann zur Anwendung, wenn das Geschaft nur fur eine Partei ein Handelsgeschaft ist. Grundsatzlich ist es unerheblich, welcher Beteiligte des Geschafts ein Kaufmann ist. Dies hat zur Konsequenz, dass eine ganze Reihe handelsrechtlicher Vorschriften auch auf Nichtkaufleute Anwendung findet. Das Gesetz verlangt ausnahmsweise ein beiderseitiges Handelsgeschaft. Die Einbeziehung der Nichtkaufleuten in das Handelsrecht wird kritisiert. § 3 KHGB stellt eine Abweichung von dem subjektiven System des Handelsgesetzbuches dar. § 3 KHGB stammt geschichtlich aus dem Art. 277 ADHGB von 1861, dessen Funktion darin lag, die unter dem Namen des Handelsrechts normierte schuld- und sachenrechtliche Vorschriften moglichst weiten Anwendungsbereich zu sichern. Insoweit ist das Prinzip des einseitigen Handelsgeschafts nur in der historischen Ruckschau verstandlich. Daher ist § 3 KHGB rechtspolitisch und rechtsdogmatisch bedenklich.

KCI등재

10불법다단계,유사수신과 사기죄에 대한 연구

저자 : 박상진 ( Sang-jin Park )

발행기관 : 중앙법학회 간행물 : 중앙법학 17권 4호 발행 연도 : 2015 페이지 : pp. 331-351 (21 pages)

다운로드

(기관인증 필요)

초록보기

The Criminal Code is obligated to maintain the principle of the benefit and protection of law for the Korean society. It is true that the Commercial Code needs to be mobilized as ultima ratio among various legal remedies. Nonetheless, it is not right to overlook prevailing illegal activities and spread of damage. Effectiveness of the Criminal Code is guaranteed by public trust. As ultra-low interest rates persist for a long time, the Korean society is gradually vulnerable to vicious financial crimes inciting high interest rates. Financial frauds that prey on ordinary people with high interest rates are serious crimes with various negative effects. Furthermore, problems become more serious when the crimes are committed against the elderly, Koreans residing in China or housewives who do not have vast amount of knowledge about economic conditions. In order to prevent these financial crimes, a series of special laws were enacted, but they ceaselessly cause great damage. In particular, the special laws have limited effects, so severe punishment has yet to be meted out, and it resulted in weak crime prevention power. That is why the Commercial Code is requested. In this regard, the study was focused on examining how to interpret frauds based on methods of contract established by illegal multilevel fund-raising business operators. In particular, the study delved into how Korea and Japan recognize 'deceit' and 'premeditation' through the use of two important cases. In order to avoid conducting investigations, bringing a prosecution and winning a series of meaningless suits at a brink of going bankruptcy with regard to these kinds of criminal cases, frauds need to be understood as abstract endangerment offenses so that the judicial authority can intervene at an earlier stage to maintain the principle of the benefit and protection of law.

12
권호별 보기
가장 많이 인용된 논문

(자료제공: 네이버학술정보)

가장 많이 인용된 논문
| | | |
1연안해역에서 석유오염물질의 세균학적 분해에 관한 연구

(2006)홍길동 외 1명심리학41회 피인용

다운로드

2미국의 비트코인 규제

(2006)홍길동심리학41회 피인용

다운로드

가장 많이 참고한 논문

(자료제공: 네이버학술정보)

가장 많이 참고한 논문

다운로드

2미국의 비트코인 규제

(2006)홍길동41회 피인용

다운로드

해당 간행물 관심 구독기관

경북대학교
 1
  • 1 경북대학교 (1건)

내가 찾은 최근 검색어

최근 열람 자료

맞춤 논문

보관함

내 보관함
공유한 보관함

1:1문의

닫기