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홍익대학교 법학연구소> 홍익법학> 사전지시(Advance Directives) 제도의 윤리적,사회적 함의

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사전지시(Advance Directives) 제도의 윤리적,사회적 함의

Ethical and Social Implications of Advance Directives

최경석 ( Kyung Suk Choi )
  • : 홍익대학교 법학연구소
  • : 홍익법학 10권1호
  • : 연속간행물
  • : 2009년 02월
  • : 93-112(20pages)
피인용수 : 9건

(자료제공: 네이버학술정보)

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Living will or durable power of attorney are called by "advance directives." Living will has serious problems in the interpretation and abstractness of its content. Durable power of attorney cannot fully guarantee the reflection of a patient`s will. Thus, the introduction of advance directives into the Korean society is a societal decision that our society will accept them and respect a patient`s will in them despite the above problems. Advance directives invokes a fundamental philosophical and ethical question of an identity problem. Buchanan argues that a living will need not be respected in the case of an identity change such as that of a dementia patient because an identity is a psychological continuity. But this is not the only plausible view. Davis introduces the notions of "earlier preference," "latest preference," and "highest-order preference" and argues that earlier autonomy also should be respected. I argue that advance directives should be introduced after the following consideration is reviewed. First, we have to take into account an aspect of Korean culture that family members have played a key role in medical decision-making. Second, a regulation on a right to refuse a treatment should be built up. We have to decide if a feeding tube is a medical treatment that can be withdrawn. Third, there must be better accessibility to health care service than now. We can prevent the abuse and misuse of advance directives when we can respect right to receive treatments as much as right to refuse treatments

ECN


UCI

I410-ECN-0102-2012-360-002969311

간행물정보

  • : 사회과학분야  > 법학
  • : KCI 등재
  • : -
  • : 계간
  • : 1975-9576
  • :
  • : 학술지
  • : 연속간행물
  • : 2000-2018
  • : 928


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발행기관 : 홍익대학교 법학연구소 간행물 : 홍익법학 10권 1호 발행 연도 : 2009 페이지 : pp. 1-24 (24 pages)

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Art. 80 CISG formuliert den allgemeinen Gedanken, dass die Folgen selbstverursachter Vertragsstorungen nicht der anderen Vertragspartei angelastet werden konnen. Nemo auditur suam turpidinem allegans. Die Vorschrift ist ihrerseits Teil des generellen Gebots, die Grenzen von Treu und Glauben einzuhalten. Ihrem Grundgedanken nach schafft die Vorschrift eine Obliegenheit des Glaubigers, dem Schuldner die Erfullung nicht teilweise oder vollstandig unmoglich zu machen. Tut er es, erleidet er Rechtsnachteile. Der andere Vertragspartner hat seinerseits nur Anspruche, wenn die Verhinderung der Erfullung zugleich eine Vertragsverletzung ist. Art. 80 stellt neben Art. 79 einen weiteren eigenen Befreiungsgrund dar. In diesem Beitrag sollen die einzelnen Tatbestandsvoraussetzungen der Befreiung, Rechtsfolgen, Verhaltnis zu Art. 79, Beweisalst des Art. 80 CISG untersucht werden.

2부동산금융으로서의 이행인수 -대법원 2002. 5. 10. 선고 2000다18578판결을 중심으로-

저자 : 김연미 ( Yon Mi Kim ) , 이중기 ( Choong Kee Lee )

발행기관 : 홍익대학교 법학연구소 간행물 : 홍익법학 10권 1호 발행 연도 : 2009 페이지 : pp. 25-48 (24 pages)

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As a method of real estate financing, the buyer may borrow funds by providing security interest on the real estate to be acquired. Furthermore, if the seller has already borrowed money by establishing certain security interest over the real estate subject to the sale, the buyer may assume the seller`s obligation under the loan as part of the payment of the purchase price. In this situation, the interests of relevant parties may vary: the buyer wishes to assume the obligation so that she does not have to fund the purchase price through other channel; the seller wishes to get out of the obligation under the loan when she sells the real estate; and the creditor wishes not to jeopardize her interests by change of debtor even if she holds the same security interests. The Supreme Court of Korea, through a series of decisions including the "2000Da18578" Decision, has established that, (a) the true change of debtor occurs only with the consent of the creditor; (b) without the creditor`s consent, it is either (A) both the seller and the buyer are jointly liable for the loan, or (B) the seller is still the debtor under the loan, while the buyer has obligation towards the seller to perform the obligation under the loan on behalf of the seller. In case of a project of real estate development (with funding through Project Financing), the treatment of existing loans secured by the real estate is crucial. In this regard, the rules made by the Supreme Court should be re-visited.

3계약체결상의 과실

저자 : 강봉석 ( Bong Seok Kang )

발행기관 : 홍익대학교 법학연구소 간행물 : 홍익법학 10권 1호 발행 연도 : 2009 페이지 : pp. 49-68 (20 pages)

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In dem deutschen Deliktsrecht gibt es keine haftungsrechtliche Generalklausel, die jedermann zur Einhaltung eines recht- und sozialethischen Minimums auch fur zufallige verursachte Schaden zum Schadensausgleich verpflichtet. Daran fehlt der Schutz des Vermogensinteresses. Des weiteren ist im Hinblick auf die Haftung fur die bestellte Person ist dem Geschaftsherrn die Exkulpationsmoglichkeit im Deliktsrecht gewahrleistet, wahrend die Einstandspflicht fur das Berschulden des Erfullungsgehilfen dem Schuldner zur Last fallt. So hat die deutsche Rechtspraxis seit dem Inkrafttreten des deutschen Burgerlichen Gesetzbuchs Rechtsinstitute hervorgebracht, die die Lucken schliessen. So ist etwa beim Institut der culpa in contrahendo, bei dem es um die Haftung fur Verschulden bei Vertragsschluss geht, das das Schuldverhaltnis in den Raum vor dem Vertragsschluss ausdehnt. Das koreanische Burgerliche Recht hat aber ein differenziertes Haftungssystem im Deliktsrecht, in dem eine Generalklausel besteht. Trotzdem ist die Schadensersatzverpflichtung bei der Schliessung eines Vertrages, der auf eine anfangliche unmogliche Leistung gerichtet ist, in dem §535 KBGB(Koreanisches Burgerlichen Gesetzbuch) geregelt, der den Titel der culpa in contrahendo hat. Das Institut der culpa in contrahendo ist aber unnotig im koreanischen Hatungssystem, denn die rechtliche Natur der culpa in contrahendon ist grundsatzlich nicht die Vertragshaftung sondern die Deliktshaftung. Daher ist es notwending und vordringlich, bei nachster Bearbeitung des KBGB den §535 zu streichen.

4중개계약

저자 : 이승길 ( Seung Kil Lee )

발행기관 : 홍익대학교 법학연구소 간행물 : 홍익법학 10권 1호 발행 연도 : 2009 페이지 : pp. 69-92 (24 pages)

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The intermediation system in Korea has been adopted from Japan and succeeded to that of the Federal Republic of Germany. So, the system is also similar to the system of broker based on the laws of the Great Britain and the United States of America. The system has some possibilities of legal problems between an intermediary and a client. Thus, with the view to the problems, we need to review the legal theory on the system in order to eliminate the problems. We should also provide legal solutions or theories for legal enactment in case of the conflict. Through the publicity of the tasks of civil law revision in November, 2004, the Department of Justice has already provided the total four provisions followed by the 692th act of the 13th clause in civil law after commission contract for a previous announcement of the civil law revision. The contents of civil revision law constitutes the intermediation contract as an independent type of contract, but it follows a lot of regulations of commission contract. The main contents of payment responsibility which consists of basic elements is somewhat similar to that of commission contract. In this regard, they criticize the contents of the contract because it only includes a symbolic meaning for the provision of the contract in civil law and it ignores the legal solution for the conflict. This study focuses on the theory on the interpretation of the intermediation contract and analyzes precedent cases in the Federal Republic of Germany. Based on the systems, this paper reviews the interpretation and legal problems of the intermediation contract in the view of the civil law revision. This study, as a result, may contribute the participants to discuss and review the topic of intermediation contract.

5사전지시(Advance Directives) 제도의 윤리적,사회적 함의

저자 : 최경석 ( Kyung Suk Choi )

발행기관 : 홍익대학교 법학연구소 간행물 : 홍익법학 10권 1호 발행 연도 : 2009 페이지 : pp. 93-112 (20 pages)

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(기관인증 필요)

초록보기

Living will or durable power of attorney are called by "advance directives." Living will has serious problems in the interpretation and abstractness of its content. Durable power of attorney cannot fully guarantee the reflection of a patient`s will. Thus, the introduction of advance directives into the Korean society is a societal decision that our society will accept them and respect a patient`s will in them despite the above problems. Advance directives invokes a fundamental philosophical and ethical question of an identity problem. Buchanan argues that a living will need not be respected in the case of an identity change such as that of a dementia patient because an identity is a psychological continuity. But this is not the only plausible view. Davis introduces the notions of "earlier preference," "latest preference," and "highest-order preference" and argues that earlier autonomy also should be respected. I argue that advance directives should be introduced after the following consideration is reviewed. First, we have to take into account an aspect of Korean culture that family members have played a key role in medical decision-making. Second, a regulation on a right to refuse a treatment should be built up. We have to decide if a feeding tube is a medical treatment that can be withdrawn. Third, there must be better accessibility to health care service than now. We can prevent the abuse and misuse of advance directives when we can respect right to receive treatments as much as right to refuse treatments

6미국 신문산업규제와 수정헌법 제1조

저자 : 이노홍 ( Noh Hong Lee )

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A vigorous press is main source feeding the flow of democratic expression and controversy which maintains the institutions of a free society and democracy. Also a free press has a function of interpreting government policy and checking the abuse of power by public officials. It is sure that a free speech is protected by eliminating the risk of government censorship and intrusion, but the monopoly by the private media powers also threatens the marketplace of ideas and interferes the free flow of ideas and widest possible dissemination of information. The U.S. has tried the restriction of press monopoly and media concentration by Antitrust Law and FCC regulation on the ground of diversity of view points and it has occurred First Amendment suits and controversies. This article will examine the press control policies focused on the application of the Antitrust law to the press, newspaper/broadcast cross ownership regulation by FCC and Supreme Court decisions. And it also review the Constitutional Court Decision about newspaper regulation laws and try to reset the judicial review standard on newspaper laws for diversity of the view points.

7변호사업무정지명령제도의 제도적 개선방안

저자 : 이재방 ( Jae Bang Lee )

발행기관 : 홍익대학교 법학연구소 간행물 : 홍익법학 10권 1호 발행 연도 : 2009 페이지 : pp. 143-164 (22 pages)

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According to the Constitutional Court`s decision on unconstitutionality in 1990, Attorney-at-Law Act was revised in 1993 to specify conditions for interim suspension. However, considering that the revised provision still has the problem of ambiguity, this paper suggests four legal improvements. First, the authority for ordering interim suspension should be given to the court in which a lawyer is convicted. Second, requirements for interim suspension should be differentiated in order to limit the scope of the lawyers suspended. Third, instead of suspending all practice of law, the scope of suspending cases should be appropriately limited, in order to exclude cases that clients do not want to change their lawyer, and so on. And finally, in order to protect public and client`s interests, the interim suspension should be informed not only in the Korean bar Association`s gazette and homepage but also to clients.

8건물의 소유자와 점유자가 다른 경우에 있어서 대지의 점유관계

저자 : 김병진 ( Byung Jin Kim )

발행기관 : 홍익대학교 법학연구소 간행물 : 홍익법학 10권 1호 발행 연도 : 2009 페이지 : pp. 165-194 (30 pages)

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The common social idea is that a building cannot exist apart from the plot it stands on, but in Korea, buildings are separate real estate from the land they occupy. The precedents have long been that land upon which a building stands is occupied by the building owner, and even if the building owner is not actually occupying the building or the land, the land is his to occupy because of his building ownership. However, regarding a situation in which a person`s building exists on another person`s land, and a third party occupies that building without title, it needs to be determined whether the building occupant can be seen as occupying the plot separately from the building owner. Specifically this problem involves i) the status of landowner`s claim to repossess as a holder of real rights against the building occupant, ii) the scope of building occupant`s restitution against unfair profit and the opposite party, and iii) the status of building occupant`s acquisitive prescription of land. Scholarship is divided between i) the view that a person who occupies and uses a building is naturally occupying and using the accompanying land, and ii) the view that, although the person is doubtlessly using the land, it is merely a reflex of the fact that the person is occupying and using the building located on the land, and the person is not occupying the land separately and independently from the building owner. On this point, the precedents are inconsistent. When a building owner has the right to use the land, it must be said that the building occupant is not occupying the land separately from the building owner. Accordingly, the land owner cannot request directly for the building occupant to vacate the building. The building occupant must restitute a large portion of rental fee as unfair profit to the building owner and not to the land owner, and at such time, the rental fee is not calculated separately for the building and the land. Instead, a large portion of the building`s rental fee can be calculated with consideration to the land usage relationship. If a building owner does not have the right to use the land, the building occupant and owner must be seen as occupying the land separately. Accordingly, the land owner can directly request the building occupant to vacate the building. The building owner and occupant both must be seen as illegally occupying the land in their relationship to the land owner, and thus the land owner can claim restitution for a large portion of the rental fee for the land to either the building owner or the occupant. The building owner can have acquisitive prescription of land ownership under a certain set of conditions. According to precedents, a person who is not the building title holder cannot be seen as occupying the land even if he actually occupies the building, and the building occupant cannot have acquisitive possession of the land. However, regardless of a building owner`s right to use the land, the building occupant`s occupation and acquisitive possession of the land must also be recognized.

9사이버범죄의 실태와 동향 및 대응책

저자 : 정완 ( Wan Choung )

발행기관 : 홍익대학교 법학연구소 간행물 : 홍익법학 10권 1호 발행 연도 : 2009 페이지 : pp. 195-224 (30 pages)

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We are living in the digital age. Lots of people in the world are using the Internet and so we are spending our lifetime in the Cyberspace through the Internet. The Internet has a lot of good functions, for example, internet searching, internet commercial transaction, internet shopping mall, email sending, playing internet game, operating the bulletin board system etc. On the other hand, the Internet has a lot of bad functions, for example, cybercrime, like cyber hacking and virus spread, cyber contempt, cyber libel, cyber pornography, cyber gambling, cyber violence, cyber fraud etc. Today the situation of cybercrimes in cyberspace is very serious. A lot of cyberpornography has given the children so bad affect that they fell into abnormal addiction and could not live normally. And people who fell into internet gambling run through all their money. We have many laws and regulations about internet crimes. But a lot of cybercrimes are not reduced any longer. Why ? We should make a lot of efforts to reduce cybercrimes like as new lawmaking of cyber contempt, enforcement of real name using system in cyberspace, strengthening of self regulation against cybercrimes, international cooperation in field of cybercrime etc. This research has read in the Korean Association of Criminology at the Fall Seminar 2008. Contents of this article are as follows; Chap1. Introduction Chap2. Concept and Actual State of Cybercrime Chap3. Recent Situation and Causes of Cybercrime Chap4. Regulation against Cybercrime and Freedom of Expression Chap5. Some Measurements against Cybercrime Chap6. Conclusion

10법인격부인이론(法人格否認理論)의 적용에 있어서 법인격(法人格)의 형해화(形骸化)내지 남용(濫用)을 인정하기 위한 요건(要件)

저자 : 김동민 ( Dong Min Kim )

발행기관 : 홍익대학교 법학연구소 간행물 : 홍익법학 10권 1호 발행 연도 : 2009 페이지 : pp. 225-252 (28 pages)

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In general a corporation may exist and act as an entity or legal unit separate and apart from its shareholders. When a corporation acquires property, the title vests in it as a distinct legal person and if it incurs liability, this must be paid out of the corporate assets. But when the corporate form has been used for an illegal or inequitable purpose, the courts will place limitations upon the privilege and regard the corporation as a mere collection of person. Generally speaking, the doctrine of disregard of the corporate entity is to disregard the independent personality of the corporation when the members of the corporation abuse the corporate entity. This is not to deprive the corporation of the corporate personality, but to ignore it in limited cases. This doctrine purports to prevent the abuse of the corporate form. In Germany it is generally recognized that corporate personality can be disregarded in particular circumstances, and the shareholders can be held personally liable for corporate obligations. This legal process is called "Haftungsdurchgriff" and the theory is referred to as "Durchgriffslehre". There is not even any agreement as to the relevance of the corporate personality concept to this doctrine. However, all scholars agree that this theory circumscribes the concept of corporate personality and amounts to a non-application of the separation principle between the corporation and its members.

12
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한국해법학회지
40권 2호 ~ 40권 2호

KCI등재

경영법률
29권 1호 ~ 29권 1호

연세 의료·과학기술과 법
9권 2호 ~ 9권 2호

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일감법학
41권 0호 ~ 41권 0호

KCI등재

법학연구
26권 4호 ~ 26권 4호

KCI등재

민주법학
68권 0호 ~ 68권 0호

KCI등재

비교형사법연구
20권 3호 ~ 20권 3호

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1권 1호 ~ 1권 2호

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과학기술법연구
24권 3호 ~ 24권 3호

연세법학
30권 0호 ~ 31권 0호

최신판례분석
67권 5호 ~ 67권 5호

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법조
67권 5호 ~ 67권 5호

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법학논총
35권 3호 ~ 35권 3호

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71권 0호 ~ 71권 0호

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법학논집
23권 1호 ~ 23권 1호

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32권 0호 ~ 32권 0호

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31권 0호 ~ 31권 0호

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29권 0호 ~ 29권 0호

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환경법연구
27권 4호 ~ 27권 4호

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환경법연구
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