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서울대학교 아시아태평양법연구소(구 서울대학교 법학연구소)> Journal of Korean Law> Reflections on the Movement for the Legalization of “Death with Dignity as Withdrawal of Futile Life-Sustaining Treatment” in South Korea

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Reflections on the Movement for the Legalization of “Death with Dignity as Withdrawal of Futile Life-Sustaining Treatment” in South Korea

Kyongjin Ahn , Hyuna Bae
  • : 서울대학교 아시아태평양법연구소(구 서울대학교 법학연구소)
  • : Journal of Korean Law 10권1호
  • : 연속간행물
  • : 2011년
  • : 43-64(22pages)

DOI


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초록 보기


						
In this article, we will introduce Korea’s medico-legal cases that are related to the withdrawal of life-sustaining treatment. This paper examines the issue of the legalization of “death with dignity” by investigating Korea’s leading cases on the withdrawal of life-sustaining treatments and the current medical and legal situation in Korea. This paper also examines several preconditions for drafting a bill for such legislation. Considering the complexity of medical circumstances, laws and policies on end-of-life decision-making may not address every possible scenario. Thus, the laws and the policies would have to reflect the differing views of people based on their social status, moral values, religious beliefs, and economic status. Therefore, it should be recognized that a public consensus is necessary for devising successful public policy and guidelines with respect to euthanasia and “death with dignity” in Korea. So proper guidelines and public debates that incorporate the views of the public, the government, and medical and legal professional associations will help create a firmer foundation for making better laws and policies regarding the end of life care issues.

ECN

ECN-0102-2016-360-000419681


UCI

I410-ECN-0102-2016-360-000419681

간행물정보

  • : 사회과학분야  > 법학
  • : KCI 등재
  • : -
  • : 반년간
  • : 1598-1681
  • :
  • : 학술지
  • : 연속간행물
  • : 2001-2018
  • : 237


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1Importing Hazardous Substances from the United States?: The Poison Pill in Japan and Korea

저자 : Hwa Jin Kim , Haruka Okihara , Stephen Woodcock

발행기관 : 서울대학교 아시아태평양법연구소(구 서울대학교 법학연구소) 간행물 : Journal of Korean Law 10권 1호 발행 연도 : 2011 페이지 : pp. 1-41 (41 pages)

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(기관인증 필요)

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The authors were motivated to write this article by South Korea's steps to amend its corporate law to permit the use of the shareholder rights plan (poison pill). Poison pills are permitted in some of the world's most sophisticated economies, and they have engendered strong opinions and changed the face of corporate law in the most well-established of jurisdictions. This article first looks back at the poison pill's history in the United States and Japan, highlighting the advances and setbacks that might have predictive value for Korea. To accomplish this, we borrow a framework from Ronald Gilson and then look at case law precedent, existing and proposed legislation, strategies for the regulation and deployment of poison pills, and parties available to police its use. This article goes on to consider how a transplant of the poison pill doctrine into Korean M&A law could play out; focusing less on predicting the outcome and more on identifying the key success factors and potential pitfalls, and highlighting the importance of ongoing corporate governance reform.

다운로드

(기관인증 필요)

초록보기

In this article, we will introduce Korea's medico-legal cases that are related to the withdrawal of life-sustaining treatment. This paper examines the issue of the legalization of “death with dignity” by investigating Korea's leading cases on the withdrawal of life-sustaining treatments and the current medical and legal situation in Korea. This paper also examines several preconditions for drafting a bill for such legislation. Considering the complexity of medical circumstances, laws and policies on end-of-life decision-making may not address every possible scenario. Thus, the laws and the policies would have to reflect the differing views of people based on their social status, moral values, religious beliefs, and economic status. Therefore, it should be recognized that a public consensus is necessary for devising successful public policy and guidelines with respect to euthanasia and “death with dignity” in Korea. So proper guidelines and public debates that incorporate the views of the public, the government, and medical and legal professional associations will help create a firmer foundation for making better laws and policies regarding the end of life care issues.

3Cost and Fee Allocation Rules in Korean Civil Procedure

저자 : Gyooho Lee

발행기관 : 서울대학교 아시아태평양법연구소(구 서울대학교 법학연구소) 간행물 : Journal of Korean Law 10권 1호 발행 연도 : 2011 페이지 : pp. 65-97 (33 pages)

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Korea is one of the most litigation-prone societies on earth. The overall increase of court filings in civil cases in Korea is the result of external costs which are borne by the parties from outside the courts and internal costs which the parties generate as they directly utilize the courts. The external costs may include the increase of the number of disputes resulting from the rapid growth of Korean economy and the increasing weakness of dispute resolution mechanisms such as families, churches, and neighborhoods. The internal costs may include litigation costs. In this regard, this Article will mainly explore costs and fees borne by both parties as an effort to improve Korean civil procedure by eliminating frivolous lawsuits and encouraging meritorious ones. At the outset, the Article explores the basic rules and their exceptions and modifications as to who pays fees and costs in a lawsuit. Secondly, the Article explains fee and cost allocation rules which encourage or discourage litigation. In the third place, the Article delves into the determination of fees and costs incurred by both parties to a lawsuit. Afterwards, the Article discusses special Issues including success-oriented fees, sale of claims, class actions, and litigation insurance in terms of fee and cost allocation rules. In Conclusion, I propose that Filing Fees Act in the context of civil procedure be incorporated to the Act on Costs for Civil Procedure, and Filing Fees Rules for civil procedure and Rules regarding Attorney Fees included in Litigation Costs be incorporated to Rules of Costs for Civil Procedure. Afterwards, I make some comments on contingent fee arrangements as follows: (i) that contingent fee arrangements should not be permitted in criminal cases in Korea because those cases are related to public interests; and (ii) that contingency fee arrangements for domestic relation cases should not be allowed because it can encourage the dissolution of family relation. In addition, the Article points out that pro se actions can encourage a court to heavily rely on appropriateness in the concrete rather than legal certainty. In other words, appropriateness in the concrete sometimes preempts legal certainty in Korea because applying law by the court is limited by pro se litigation. The Article goes on to mention that this problem will be somewhat solved by the legal aid, the increase of the number of attorneys, and legal service insurances.

4IPTV between Competition and Regulation in Korea

저자 : Bong Eui Lee

발행기관 : 서울대학교 아시아태평양법연구소(구 서울대학교 법학연구소) 간행물 : Journal of Korean Law 10권 1호 발행 연도 : 2011 페이지 : pp. 99-110 (12 pages)

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Technological convergence in the fields of telecommunications and broadcasting needs regulatory convergence, which requires as its prerequisite overarching regulatory principles between different regulatory authorities. The integration of separate regulatory regimes for telecommunications, broadcasting and IPTV entails a complicated process of balancing between market principle and public interest. In this context, the current regulatory framework of IPTV seems to be far away from such a balanced perspective in that the new hybrid service is regulated much stricter than traditional telecommunications or broadcasting services. Key issues concerning access to premium network and killer contents have just begun. In order to set up sound competition policy concerning IPTV, the KCC as a relevant sectoral regulator, should focus its interest and resources on the establishment of level playing field between telecommunications and broadcasting companies regardless of technologies or networks. It is the very reason why intermodal competition should be given priority practicing sectoral competition policy.

5Sentencing Guidelines in South Korea: Lessons from the American Experience

저자 : Daniel Fiedler

발행기관 : 서울대학교 아시아태평양법연구소(구 서울대학교 법학연구소) 간행물 : Journal of Korean Law 10권 1호 발행 연도 : 2011 페이지 : pp. 111-141 (31 pages)

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This article discusses the enactment of the Sentencing Reform Act by the United States Congress, the enactment of sentencing guidelines by the South Korean legislature, and the effects of these enactments on the U.S. and on South Korea. The Sentencing Reform Act in the U.S. was the culmination of almost a decade of hearings, committee mark-ups and floor consideration in the U.S. Congress which begun in 1976 with the introduction of a bill by Senator Edward M. Kennedy authorizing the appointment of a commission for the purpose of promulgating sentencing guidelines for court consideration. After enactment in 1984, for over twenty years sentencing power was gradually consolidated into the federal prosecutor's office until in 2005 the United States Supreme Court in a landmark decision deemed unconstitutional the mandatory nature of the sentencing guidelines. However, as the United States Supreme Court was ending the twenty year legislative experiment in mandatory sentencing, the South Korean legislature was beginning the process of enacting legislation that would lead to strict sentencing guidelines for South Korea. The historical background and current approaches of South Korea and the United States in the sentencing guideline area are of interest to prosecutors, the judiciary and public defenders in South Korea. The bulk of the article focuses on the U.S. experience as a guide for the South Korean judiciary, especially due to the current divergence between the U.S. and South Korea in this area. While the United States judicial system is moving decisively towards a system giving greater discretion to the judiciary, South Korea is moving decisively towards a sentencing system giving greater power to the prosecution. In analyzing this divergence, this article presents the original reasons behind mandatory sentencing in the United States, the long debate in the United States as to the efficacy of mandatory sentencing and the current course charted by the U.S. Supreme Court. The article also briefly presents and discusses the history of sentencing guidelines in South Korea, and discusses whether the U.S. experience can be informative in the debate as to whether sentencing guidelines are suitable for the issues currently facing South Korea.

6The Korean Hearsay Rule and the Protocol

저자 : Heekyoon Kim

발행기관 : 서울대학교 아시아태평양법연구소(구 서울대학교 법학연구소) 간행물 : Journal of Korean Law 10권 1호 발행 연도 : 2011 페이지 : pp. 143-169 (27 pages)

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Later in the course of the democratic reformation of the justice system, the Judiciary, supported by the civil rights groups and a majority of the legislators, tried to limit prosecutorial and police power. More precisely, they opposed the “dossier-building” practice in the pre-trial stage that the prosecutor dominates. Thus they decided to control it. The best way would be to deny protocols' admissibility and to encourage the parties to offer more live testimonies. The rule against hearsay basically guarantees this paradigm shift. The amendment also opened the way for calling those who heard the suspects' statements'. But trial judges prefer to read protocols in office in preparation for trials. The videotape is not even in the list of substantial evidence. Certainly, the protocols containing PIS have lost their authoritative voice. They must have been prepared properly, be reliable, genuine, correct, and made in a particularly reliable situation. Furthermore, the testifier must be available for cross-examination from a defense counsel. All these requirements make the prosecution increasingly more dependent on protocols made with suspect parties' admissions. The most popular evidence still seems to be a protocol with party admission. Videotapes are prepared for supporting its admissibility not for substantial evidence. In the Korean criminal process, this sort of protocol itself flows as if it is something that reveals the truth. Roughly speaking, the Korean criminal process is similar to that of the French one of which Professor Langbein has given an interesting description.

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