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이화여자대학교 법학연구소> 법학논집> 생명윤리에서 법, 도덕 및 윤리의 역할과 한계

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생명윤리에서 법, 도덕 및 윤리의 역할과 한계

The Roles and Limitations of Law, Ethics, and Morality in Bioethics

최경석 ( Kyungsuk Choi )
  • : 이화여자대학교 법학연구소
  • : 법학논집 15권4호
  • : 연속간행물
  • : 2011년 06월
  • : 143-166(24pages)

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This paper deals with similarity and dissimilarity among ethics, morality and law after pointing out misunderstanding of norms applied to subsystem of a society like professional ethics or Christian ethics. According to Gert, both of morality and law are a public system. Morality is informal while law is formal. Morality as am in formal public system depends on overwhelming ahreement for its function and, unlike law, does not have a decision procedure usually involving judges to resolve disagreement. Law does not fully reflect ethics and morality because it requires feasibility, effectiveness, and clarity. Yhus, it is wrong to identify law with morality or ethics. Each of ethics, morality, and law plays a different role in solving bioethical issues to often reveal the conflict of different ethical positions. Ethics justified within a comprehensive belief system produces ethical beliefs that will be reviewed as a candidate of morality or law by persons who have different comprehensive belief systems. When we try to solve bioethical issues through law or policy, we should appeal to public reason because law or policy are applied to all persons who have different comprehensive belief systems. All of bioethical issues, of course, do not have to be solved by law or policy. For such solution, however, necessity and urgency of solution must be recognized. Such solution often requires to produce, I suggest ``subdicision of issues.`` Finally, in bioethical issues claiming moral permissibility, law and policy cannot help allowing an action in debate within the scope where it does not conflict with values or beliefs public reason recognizes if there is no overlapping consensus on prohibiting or en forcing it. This is the virtue of toleration required in a pluralist society.

ECN


UCI

I410-ECN-0102-2013-360-002505624

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  • : 사회과학분야  > 법학
  • : KCI 등재
  • : -
  • : 계간
  • : 1226-2005
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  • : 학술지
  • : 연속간행물
  • : 1996-2018
  • : 762


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1로스쿨 실무교육의 현 주소와 발전 방향 -로스쿨생의 취업률 향상 방안과 관룐하여-

저자 : 서규영

발행기관 : 이화여자대학교 법학연구소 간행물 : 법학논집 15권 4호 발행 연도 : 2011 페이지 : pp. 1-14 (14 pages)

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2시효에 관한 2011년 민법개정안 연구

저자 : 송덕수 ( Tuck Soo Song )

발행기관 : 이화여자대학교 법학연구소 간행물 : 법학논집 15권 4호 발행 연도 : 2011 페이지 : pp. 15-58 (44 pages)

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Der 2011-Reformsantrag(zitiert 2011-RA) des Koreanische BGB(zitiert K-BEB) uber die Verjahrung und Ersitzung wurde in der Kabinettsizung am 14. Juni, 2011 beschloben. Nach dem 2011-RA ist die Verjahrungsfrist der Forderung 5 Jahre. Und Regelungen der verkurzte Verjahrungsfristen wurden gestichen. Femer der Beginn der Verjahrungsfrist wurde vom objektiven System geandert. 211-RA spricht statt von der Unterbrechung der Verjahrung von dem Neubeginn. Und die Vollendungsgemmung wurde neben der Unterbrechung und Hemmung der Verjahrung oder Ersitzung eingefugt. 2011-RA regelt die Hemmungstatbestande in 163, die Neubeginnstatbestande in 177, 178, die Vollendungshemmungstatbestande in 173-176. Daneben regelt 170-172 2011-RA die Vollendungshemmungstatbestande in Verbindung mit der Hemmungstatbestande. Im Hinblick auf die Wirkung der Verjahrung verlangt 2011-RA von Schuldnern die Gcltendmachung der Einrede der Verjahrung. 2011-RA hat die Vermutung des Eigenbesitzes in 197 gestrichen. Und er hat den guten Glauben und Unfahrlabigkeit als die Tatbestande der Ersizug des Grundstucksigentums eingefugt. 2011-RA verlangert die Verjahrungsfrust des Schadensersatzanspruch bei der unerlaubte Handlung vor 3 Jahre zur 5 jahre Und nach dem 2011-RA wird die Verjahrungsfrust des schadensersatzanspruch bei der unerlaubte Handlung fur der beschrankte Fahigkeite gehemmt, wahrend sie die beschrankte Fahigkeite ist. 2011-RA hat einerseits dem K-BEB die neuen europaischen Gesetze, wie beispielsweise das deitsche BGB, der franzosische code cibil anpabt. Aber er hat andererseits die eigentumlichen Punkte. 2011-RA ist grobartig.

3"아내"의 강간죄 객체성 인정에 대한 소고

저자 : 김은애 ( Eun Ae Kim )

발행기관 : 이화여자대학교 법학연구소 간행물 : 법학논집 15권 4호 발행 연도 : 2011 페이지 : pp. 59-97 (39 pages)

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The marital rape is a coerced intercourse that is done without consent and with a violence and a threat between husband and wife. Mostly the victim is a wife, so the marital rape means the wife rape by husband. It is violative of the right to sexual autonomy, the right to control ones won body and the human rights that are based on the constitutional law. But according to the common opinion in law, the wife is not to be the object of the rape. Because the assaulter and the victim are in conjugal relation, so they, so they has a buty to accept a sexual demand each other. The Supreme Court in 1970 judged that marital rape between husband and wife could not be a punishable conduct because of their special relation. The common opinion in law also has followed this view. Howerver, a recent judgment of the district court concluded that the wife rape has to be furnished as crime and showed the grounds of the penal sanction in the judgment paper. By the provision punishing rape in crimainal law, the object of the rape is specified a woman. So the wife can be recognized the object of the rape as a woman independent of her marital status. And it is very clear that the husband committed a rape made a trespass on a person`s human rights and constitutional value including the right to sexual autonomy, the right to control ones won body and so on. Also, the wife raped by her husband suffers the physical mental damage like a rape trauma syndrome from the experience that she was attacked from the spouse who has to love, trust and prospect each other. herefore there is no problem to recognize the rape by husband as the crime. Married woman should be able to control her own body and to be guaranteed her sexual autonomy. For these reasons, the wife rape is very obvious and serious crime. Consequently, to punish and to prevent it, the illegality of the wife rape have to be investigated and researched in law and women sphere closely and the countermeasure must be taken as soon as possible.

4징계의결요구의 법적 효력

저자 : 김유환 ( Yoo Hwan Kim )

발행기관 : 이화여자대학교 법학연구소 간행물 : 법학논집 15권 4호 발행 연도 : 2011 페이지 : pp. 99-117 (19 pages)

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As the State Public Officials Act, the Local Public Officials Act and their subordinate statutes do not have substantial rules about request for a bisciplinary decision, there are no effective guidelines which are to be applied to request for disciplinary decisions against Public offcials in the legal system of the Republic of Korea. In particular, it is not clear whether revocation of the request for a disciplianrv decision is to be allowed when the adminsitrative authority wants to withdraw its request for a disciplinary decision according to change of the situation. In addition, when the authority wants to change irs initial decision of leniency on a suspicious offender such as an admonition or warning and require a disciplinary decision of the disciplinary committee, it is not sure if the following requset for a disciplinary decision is valid in spite of Double Jeopardy Principle. In my opinion, we need new legislation dealing with this issue for resolving the consequent problems from vagueness of relevant Acrs and Statutes. For the mean time, we need well-balanced interpretative theories. For this reason, I propose new interpretative guidelines as follows. Firstly, the authority of personnel affairs is able to withdraw the request for a disciplinary decision. But, it does not mean that the disciplinary procedure must terminate by the withdrawal. Secondly, the disciplinary committee must decide if revocation of request fir a disciplinary decision should be allowed or not. Thirdly, the authority of personnel affairs cannot require a disciplinary decision after issuing an admonition or a warning. Fourthly, the authority of personnel affairs is able to require a disciplinary decision after withdrawing the admonition or a warning. This request does not violate Double Jeopardy Principle. [Key Words] Disciplinary Action, Request For a Disciplinary Decision, Revocation, Disciplinary Punishment, Non Bis In Idem, Double Jepardy, Protection of Trust, Admonition, Warning, Appeal Review.

5유럽법상 "기업의 사회적 책임"에 대 대한 고찰

저자 : 김유환 ( Dac In Kim )

발행기관 : 이화여자대학교 법학연구소 간행물 : 법학논집 15권 4호 발행 연도 : 2011 페이지 : pp. 119-142 (24 pages)

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The recent debate on the mandatory adoption of compliance system to listed companies in Korea shows the need for research on "Corporate Social Responsibility (CSR)" from the legislation theory perspective. The core of this debate is whether ``volintary initiative`` or ``legally binding regulation`` is desirable in realizing CSR, and this is the typical subject of legislation theory, In thiseintext, EU`s debates on CSR can be a good research topic. European Commission published Green Paper on CSR in 2001. This paper has the purpose of vitalizing the debate on CSR within EU rather than giving suggestions for concrete action. In this paper, CSR is described as "a concept whereby companies integrate social and environmental concerns in their business operations and in their interaction with their stakeholders on a voluntary basis". This definition shows that European Commission is emphasizing voluntary nature of CSR. However, some criticize that European Commission is emphasizing voluntary nature of CSR, However, some criticize that European Commission understands CSR from a accessively narrow perspective, and adopts CEO`s opinion only. European Commission is also focusing on voluntary nature of CSR in ``Communication 2006`` in ``Better Regulation`` context. However, ``Better Regulation`` concept was adopted because ``Deregulation`` concept is not enough in this complex and high risk society. In ``Better Regulation`` system, smart regulation rather that de regulation can be beneficial according to each situation, From this understanding of ``Better Regulation`` concept, European Commission`s emphasis on voluntary nature of CSR is not balanced. From the legal nature of each fundamental right should be considered in realizing complementary relationship between ``voluntary initiative`` and ``legally binding regulation``. On top of that, guaranteeing efficient enforcement system of CSR is also crucial. Efforts should be made on integrating ``International Development Cooperation`` and CSR.

6생명윤리에서 법, 도덕 및 윤리의 역할과 한계

저자 : 최경석 ( Kyungsuk Choi )

발행기관 : 이화여자대학교 법학연구소 간행물 : 법학논집 15권 4호 발행 연도 : 2011 페이지 : pp. 143-166 (24 pages)

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This paper deals with similarity and dissimilarity among ethics, morality and law after pointing out misunderstanding of norms applied to subsystem of a society like professional ethics or Christian ethics. According to Gert, both of morality and law are a public system. Morality is informal while law is formal. Morality as am in formal public system depends on overwhelming ahreement for its function and, unlike law, does not have a decision procedure usually involving judges to resolve disagreement. Law does not fully reflect ethics and morality because it requires feasibility, effectiveness, and clarity. Yhus, it is wrong to identify law with morality or ethics. Each of ethics, morality, and law plays a different role in solving bioethical issues to often reveal the conflict of different ethical positions. Ethics justified within a comprehensive belief system produces ethical beliefs that will be reviewed as a candidate of morality or law by persons who have different comprehensive belief systems. When we try to solve bioethical issues through law or policy, we should appeal to public reason because law or policy are applied to all persons who have different comprehensive belief systems. All of bioethical issues, of course, do not have to be solved by law or policy. For such solution, however, necessity and urgency of solution must be recognized. Such solution often requires to produce, I suggest ``subdicision of issues.`` Finally, in bioethical issues claiming moral permissibility, law and policy cannot help allowing an action in debate within the scope where it does not conflict with values or beliefs public reason recognizes if there is no overlapping consensus on prohibiting or en forcing it. This is the virtue of toleration required in a pluralist society.

7내시경 시술과 관련된 의료법학적 문게

저자 : 김유환 ( Hyuna Bae )

발행기관 : 이화여자대학교 법학연구소 간행물 : 법학논집 15권 4호 발행 연도 : 2011 페이지 : pp. 167-187 (21 pages)

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The practice of endoscopic procedure procedure entails risk that could be unavoidable. Even the most careful and skillful endoscopist will likely have complications and that can create a situation that is a potential cause for a malpractice action. Physicians want to take steps to avoid potential litigation or at least to improve the chances that they will win a suit. Understanding the elements of malpractice actions can minimize exposure and improve the chances the they will win a suit. In malpractice cases, the plaintiff`s attorney must understand what is the medico legal problems related with the specific procedures. There are seberal medico legal aspects of endoscopic procedure. The most important element is to establish communication with the patient that allows for open and free exchange of information. That is the so called informed consent. Patients have the right to determine the care that they are given. Understand the process of in formed consent is very important to both physicians and lawyers. Consent is not simply a document and is an agreement between the physician and the patient to perform some action or procedure including indication fo that procedure. Consent is authorized through discussion that allows the patient to understand the nature of the proposed action, the reason the action should be taken, the altcmatives to the proposed action, the risk associated with the action, and the benefits of the action, as well as the consequences of not having that procedure. And physicians should know the limits of their abilitry and training, that is, to take on only the duty for which they have been trained and in which they can support their expertise.

8일본에서의 위장도급문제에 관한 논의에 대한 검토

저자 : 김유환 ( Eun Jcong Park )

발행기관 : 이화여자대학교 법학연구소 간행물 : 법학논집 15권 4호 발행 연도 : 2011 페이지 : pp. 189-231 (43 pages)

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By ``disguised subcontract``, we mean a subcontract which is regulated by the Civil Law in appearance, but is effectively concluded for a labor procurement service prohibited by the Employment Security Law or for Workers dispatch service provided in the act on the Protection, Etc, of Dispatched workers. This study examines discussions about ``disguised subcontract`` issues in Japan, as the ``disguised subcontract`` problems have been discussed earlier in Japn than Korea. For this purpose, this paper reviews the related studies about ``disguised subcontract`` issues along with the legislation of the Employment Security Law and the Disparched Workers Act of Japan as well as the administrative efforts to deal with ``disguised subcontract`` issues. In addition, this paper organizes Japanese researchers on labor law decide that there are labor contract relations between workers employed by a subcontractor and an original contractor in the disguised subcontract relations.

9직장내 성희롱에서의 사업주 책임

저자 : 김유환 ( Hyangmi Sohn )

발행기관 : 이화여자대학교 법학연구소 간행물 : 법학논집 15권 4호 발행 연도 : 2011 페이지 : pp. 233-264 (32 pages)

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This study examined disciplinary liability on a sexual harasser as responsibility of a business owner and protection plans for a victim related with sexual harassment in the workplace. The thing that practically matters the most for a business owner to gibe a disciplinary measure on a sexual harasser who conducted sexual harasser who con ducted sexual harassmenr in the workplace is proving sexual harassment and what lecel of disciplinary can be given to a sexual harasser. However, is sexually charged behaviors or languages between a sexual harasser and a worker who was affected sexual harassment can`t be declared clearly when giving a disciplinary measure forsexual harassment in the workplace, the it should be judged in a perspective of a victim. Drinking or wrong practices in the work place of a sexual harasser can`t be the reason for reducing a disciplinary decision when judging validity of a disciplinary decision on a sexual harasser, and reducing a disciplinary measure due to the past contributions must be considerd carefully. In addition, what processes and dispute settlement procedures that a business owner had went through in the perspective of a victim must be considered in judging validity of disciplinary measures Meanwhile, the most important yhing in disputes related with sexual harassment in the workplace is to solve a conflict situation that a victim (sometimes a sexual harasser according to a case) can return to work field quickly and amicably. In order to do this, it is also important to supplement and improve legal problems relating to sexual harassment in the workplace, but creation of autonomous standard within the workplace and the Autonomous Settlement procedures of Disputes system must be invigorated actively.

10채권자대위소송에서 피보전채권의 소멸시효완성과 제3채무자의 항변

저자 : 김유환 ( Byugsun Kim )

발행기관 : 이화여자대학교 법학연구소 간행물 : 법학논집 15권 4호 발행 연도 : 2011 페이지 : pp. 265-299 (35 pages)

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Nach dem koreanischen Burgeriche Gesetzbuch ist ein glaubiger dazu berechtigt , dass ervon dem Drittschuldner verlangt, dem Schuldner(dem Glaubiger des Drittschuldners) die Schuld zuerfullen, wenn es notig ist, um seiner Firderun zu sachem. Man spricht dabei von materiellrechtlicher action oblique des glaubigers. Bei der prozessualen action oblique kann nach der herrschenden Lehre und der Rechrsprechung Drittschuldner sich auf die Wirkung der Verjahrunf ziehen, nicht betreffen. Nach der relativen Erloschenstheorie ist es selbstverstandlich, daB Drittschuldner sich auf das Erloschen der Fordeung des Glaubigers also das Fehlen an Prezessfuhrungsbefugis bei der prozessualen action oblique berufen kann, wenn der Schuldner selbst sich aufdie Verjahrung beruft. Der Urteil Koreanischen Hochsten Gerichts am 1.31.2008 (2007da64471)) sheibt, sdlcheb Standpunkt qberndmmen zu haben. Meiner Ansicht nach ist die Entscheidung richtig.

12
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경영법률
29권 1호 ~ 29권 1호

연세 의료·과학기술과 법
9권 2호 ~ 9권 2호

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일감법학
41권 0호 ~ 41권 0호

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법학연구
26권 4호 ~ 26권 4호

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민주법학
68권 0호 ~ 68권 0호

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비교형사법연구
20권 3호 ~ 20권 3호

연세 공공거버넌스와 법
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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법학연구
71권 0호 ~ 71권 0호

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법학논집
23권 1호 ~ 23권 1호

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법과 사회
32권 0호 ~ 32권 0호

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법과 사회
31권 0호 ~ 31권 0호

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법과 사회
29권 0호 ~ 29권 0호

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환경법연구
27권 4호 ~ 27권 4호

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환경법연구
27권 4호 ~ 27권 4호

연세 공공거버넌스와 법
9권 2호 ~ 9권 2호
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