프랑스법상 여행계약의 법적성질과 책임법리 -기획여행계약을 중심으로-

문성제,Moon seong jea 한국비교사법학회 2014 비교사법 Vol.21 No.4

여행계약이 실현되는 모습은 매우 다양하게 나타날 수 있으며, 여행계약이 체결되고 계약의 내용이 실현되기까지는 사안에 따라서는 장기간의 시간이 소요될 수 있다는 점, 여행계약 의 내용이 실현되는 과정에서 계약 당사자 이외에 많은 사람들이 관여하게 된다는 점 등을 고 려할 때 여행계약에서의 법률관계는 매우 복잡한 양상을 띠게 된다. 특히 여행업자가 운송인 및 숙박시설의 경영자 등과 같은 다수인에 의하여 제공되는 서비스 등과 함께 여행자에게 제 공되는 단체기획여행 내지 패키지투어와 같은 경우 여행과정에서 여행자에게 손해가 발생했 을 때에 여행업자에게 어떠한 법적원인으로 그 손해에 대한 책임을 물을 것인가는 매우 중요한 문제 가운데 하나이다. 책임론에서도 여행계약이 체결되는 법률관계의 법적성질도 다양하게 나타날 수 있으나 아직 우리나라에서는 그와 관련하여 구체적으로 논의된 예는 그리 많아 보이지 않는다. 이전에 논의되었던 대부분의 내용들은 주로 독일여행계약법의 내용과 판례⋅학설 등을 소개하고 있는 실정이다. 그러나 독일의 경우 여행계약에 관한 내용은 1978년 독일민법 개정에 의하여 관 련 규정을 마련하여 민법전에 포함시키고 있으나, 그 같은 규정을 민법규정으로 두어야 할 필요성 자체에 대해서도 비판이 가해지고 있는 가운데, 아직 우리의 경우 여행계약에 관한 입법 론의 대부분은 독일여행계약법을 중심으로 논의가 이루어지고 있는 실정을 감안할 때, 새로운 시각에서의 접근도 필요하다. 이 같은 문제의식을 가지고 본고에서는 프랑스법상 기획여행계약과 관련한 주요 내용과 여 행업자 책임의 법리를 중심으로 고찰하였다. 특히 프랑스 민법전과 상법전에는 오늘에 이르기 까지 여행업자가 체결하는 계약과 그 책임에 관한 특별한 규정이 없으며, 주로 특별법에 의하 여 여행업자의 책임을 묻고 있는 실정이며, 최근에는 여행업자 책임에 관한 판결례에서도 새 로운 해석이 시도되고 있다는 점에서 향후 우리나라에서 관련 법률문제의 해결과 관련법을 제정하는 경우에 참고가 될 수 있을 것이다. Tour contract is implemented in a wide variety of ways: On a case by case basis, it may take long period of time to see that a tour contract is implemented in reality after it is signed in written by both parties (travel agency and client). Moreover, many other concerned parties, except both parties of such contract, may get involved in the course of implementing the terms and conditions of tour contract. In this regard, legal relations become very sophisticated in tour contract. In particular, travel services are usually available from many parties like carrier and lodging facility's manager, and even planned group tour or package tour services are often available to tourists from tour operators. In these kinds of tour, it is a crucial issue to find out possible legal causes for which a tour operator may take responsibility for any damages incurred by tourists, if applicable, in the course of tourism. In terms of this responsibility, legal nature of such legal relations concerned with conclusion of tour contract may appear in various aspects, but South Korean jurisprudential world doesn't yet have so much discussed this matter in more details. In South Korea, most of existing discussions are limited to introducing contents, judicial precedents and theories of German Tour Contract Act. With regard to the matters of tour contract, however, Germany has developed relevant regulations under the revised German Civil Act (1978) and has incorporated those regulations in the German civil code. But there are increasing criticisms about why it would be necessary to keep those regulations under civil code, and most of South Korean legislative discussions about tour contract are still focused on the German Tour Contract Act in reality. That is why we need to take a new approach of comparative laws to those discussions. Based on such a critical mind, this study focused on examining major matters of package tour contract under French law system as well as judicial principles of tour operator's responsibility. Particularly, French civil and commercial code have no special provision up to date concerning any tour contract signed by tour operators and their responsibility, but rely primarily upon special laws to find tour operators responsible for any damages incurred by tourists under tour contract. Interestingly, recent judicial precedents about tour operator's responsibility also have tried to take any new construction of existing relevant laws. Hence, it is expected that such a recent trend of judicial precedents will be a good reference for resolving relevant legal issues and legislating relevant laws in South Korea.

e-health와 의료과오의 제 문제

문성제(Moon Seong Jea) 성균관대학교 법학연구소 2007 성균관법학 Vol.19 No.3S

  The term e-health has emerged since the late 1990s to keep up with current global trend. There isn"t yet a solid academic foundation for that term nor any brief definition of it. WTO(World Health Organization) defines e-health as a technology to apply a combination of different sorts of ICT to medicine for a clinical, educational or administrative purpose. That corresponds to e-commerce in health and medical industry, and aims at providing medical service as a sort of business whereas telemedicine focuses on selling medical equipment and could consequently be said hardware-centered service. So e-health refers to a paradigm of medical information and technology in multiple forms. which ranges from simple techniques like automated treatment reservation to a wide variety of systems geared toward ensuring patients" information accessibility and to clinical application technology for the sake of assisting medical treatment.<BR>  Thanks to its benefits, e-health comes into spotlight lately. That makes it unnecessary for patients to visit medical institutions in person or to wait to receive treatment. Even if they have to wait, it won"t be any long, and they can have efficient access to medical service night and day without being restricted by time. Furthermore, they can remain anonymous, and regional gap will be eliminated by letting everybody benefit from quality medicine regardless of their dwelling site. Patients can be provided enough information before they make any decision, and all the benefits of e-health predicts its growth potentiality in the future.<BR>  However, there may be so me disadvantages as weil. Patients are likely to get into troubles if they don"t properly understand or comply with the instructions of doctors. The relationship between doctors and patients might get weaken, and a lack of face-to-face treatment might provoke unfavorable consequences. Moreover, there"s no guarantee that information provided is trustworthy. Every medical institution should be linked to ensure the clinical practice of e-health, and their link might engender problems that are related to the civil liability of individuals concerned or couldn"t be resolved by administrative regulations. Legal problems might be triggered by treatment without medical examination, invasion of personal medical information. trusting inaccurate online information, medical malpractice or incompetence of medical personnels.<BR>  There were lots of limits to the past paper-based information due to time and spatial restrictions, but modern people in the 21st century are exposed to new information environments called a cyberspace that has no time and spatial limitations. Under the circumstances, the establishment of a relevant legal system that could respond to such environmental chances is very critical in that it could definitely affect the survival of humans, let alone a maintenance of public order. One way to make it happen seems to enact a special law on e-health.

개인정보의 제3자 제공으로 인한 피해에 대한 사법적 구제

문성제(Moon Seong-Jea) 성균관대학교 법학연구소 2005 성균관법학 Vol.17 No.2

The collection and utilization of information through cyberspace allow not only consumers but employers to have a successful communication with others. Users can benefit from cyberspace in many regards, including a reduction of cost and time, and they can apply for and be provided with all sorts of products, information and services. In contrary, there is much room for a misuse or abuse of personal information about users, since it could be gathered and disclosed without their consent. The focus of law has shifted from the protection of life and the body to that of reputation and privacy, as the advance in mass communication and information technology that has entailed sophisticated information- gathering technology has increasingly contributed to infringing on the reputation and privacy of individuals. Information is intangible, not being restricted by time and space. As one of intangible resources, that could be placed under the control of law. Owing to its unique characteristics, that can be circulated simultaneously in different and extensive geographic regions, and it's not an easy task to find out the appropriate and authentic legal principles that could be applicable to such a new object of law. This is the reason why that hasn't yet been placed under the reign of law, and why current law fails to determine how to approach the new object of law. So far, there is neither robust legal foundation for this field nor appropriate guidelines about the application and principles of relevant law. Now, it's required to discreetly study what types of remedies could be applicable in the area of the civil law in case anybody suffers loss just due to an exposure of information. There are two different remedies in the civil law. One is making financial reparation after one is damaged, and the other is preventing one from being damaged when it is anticipated. The first remedy is based on the tort law that specifies one who harms the body, freedom or fame of others or gives any mental pain to them are liable to make reparation for any losses other than property(the Para. 1 of Art. 751 of the Civil Law). One whose mental pain is rooted in another person's any intentional or unintentional illegal action can be remedied by the tort law. As for the second remedy, separate law is required instead of the tort law, since financial compensation or recovery of original state is necessary once after one is damaged. Korean precedents have applied the conception of 'personal rights' in order to remedy people whose fame or personal interests are infringed by the press or someone of publishing community. However, no specific efforts to approach the protection of privacy related to personal information from a perspective of the law of contract has yet been made, though there are much possibilities of solution for that approach. If the personal information of an individual gathered for a particular purpose is sold or provided to a third person without his or her consent, it seems possible to apply the law of contract to that. Therefore, it's attempted in this study to discuss civil remedies for damages triggered by the supply of personal information by a third person.

국제물품매매계약에 관한 유엔협약(CISG)과 매도인의 담보책임

문성제(Moon, Seong-Jea) 한국재산법학회 2011 재산법연구 Vol.28 No.3

2004년 2월 17일 우리나라는 국제물품매매계약에 관한 유엔협약(The United Nations Convention on Contracts for the International Sale of Goods: 이하 CISG라 함)에 가입하여 2005년 3월 1일부터 본 협약의 효력이 발효되었다. 따라서 국제물품매매계약에 관하여 합의에 의하여 CISG의 적용을 배제하기로 하지 아니한 체약국으로서 상이한 국가에 영업소를 개설한 때에는 달리 합의를 하지 않더라도 국제거래의 준거법으로서 민법ㆍ상법 이외에 CISG가 적용되게 되었다. 결과적으로 국제물품매매계약과 관련하여 우리나라의 민법과 상법 그리고 CISG에서 규정한 각기 다른 법체계를 통일적으로 해석하여 적용해야 하는 과제를 안게 되었다. 그러나 국제물품매매계약에 의하여 매도인이 인도한 물품에 하자가 있을 때에 야기되는 갈등을 어떻게 해결할 것인가 하는 문제가 제기될 수 있는데, 이때에 생각할 수 있는 책임론으로는 채무불이행책임과 하자담보책임이 있으며, 지금까지 이들 책임론의 관계와 기능에 대한 논의는 민법학에서 중요한 논의 가운데 하나였다. 그러나 CISG에서는 인도한 물품에 하자가 있더라도 하자담보책임에 관한 규정이 없으므로 매도인이 인도한 물품이 계약의 본지에 따라서 인도되지 않은 경우에 매수인이 받은 손해를 어떻게 구제 받을 수 있는가에 대하여 의문이 제기될 수 있다는 문제의식을 가지고 본고는 CISG에서의 국제물품매매계약에서 매도인이 인도한 물품의 하자로 인한 법적인 문제와 그 해결책에 대해서 고찰하였다. South Korea signed as a member on the United Nations Convention on Contracts for the International Sale of Goods (hereinafter referred to as ‘UNCISG’) on February 17, 2004, and the UNCISG came into effect from March 1, 2005. Therefore, South Korea became a contracting party that shall not exclude any application of UNCISG under its contractual agreement, so that UNCISG, apart from Civil Law and Commercial Law, became applied as a governing law to any contract for international sale of goods where a business office is opened in overseas country. As a result, the contract for international sale of goods has faced a challenge of consistently interpreting and applying different legal systems specified in Korean Civil Law, Korean Commercial Law and UNCISG. In general, any liabilities conceivable in case of a defect found from goods delivered after dealing can fall broadly into two categories, that is, liability for default and liability for warranty against defects. Traditional discussions about possible associations and functions of these two kinds of liability have been addressed as one of critical topics in the studies of Civil Law. However, the said UNCISG on which South Korea signed on February 27, 2004 contains no provision on any liability for warranty against defects. That is why there may be a controversy about how to resolve these problems appearing in contracts for the international sale of goods. Particularly, it will be necessary to present a favorable way to resolve any problem shown in international trades, since UNCISG shall be applied in advance of Korean Civil Law and Commercial Law to any case of defect found in goods delivered under contracts for the international sale of goods. In order to give any relief for damages due to such defect, the Korean Civil Law divides the relief broadly into 2 categories, i.e. relief based on liability for default and relief based on liability for warranty against defects respectively. But UNCISG uses an common concept called ‘breach of contract’ to make such a uniform provision that a seller who fails to implement his or her contractual obligation shall assume any resulting liability for buyer’s damages. In particular, in view of more or less differences between Korean statutory provisions and UNCISG in liability and relief when either of both parties violates any contract for the international sale of goods, there may be any unexpected risk resulting from inconsistency of legal system. Hence, it is necessary to review and examine major considerations of Korean relevant statutory provisions in comparison with relevant UNCISG provisions before developing a preventive safeguard measure.

우리나라 장기이식의 현황과 법률문제

문성제 ( Moon Seong-jea ) 한국외국어대학교 법학연구소 2006 외법논집 Vol.24 No.-

Organ transplantation, the finest example of modem medicine, is based on respect for human life in that it can deliver patients from malignant diseases incurable in past. Since the first successful operation in 1969 as followed by successful transplantation of liver extracted from a person with brain death in 1988, organ transplantation has been already one of most crucial medical arts in Korean and global medicine. Here, organ transplantation consists of 2 processes; one is transplanting organs for medical treatment of patients, and the other is extracting necessary organs from organ donor. The organ transplantation includes auto-transplantation(organ recipient = organ donor), xenograft(replacement with animal organs), insertion of mechanical organs and more. These cases don't involve any special legal issue except general issues in surgical operation such as medical adaptation for such treatments, technical criteria about such medical behaviors and patient’s agreement. But in case of xenograft that needs different organ donor from organ recipient, any one party concerned faces inevitable issues like lost organs or damaged corpse, and the other party benefits from survival or recovered health via transplantation. Because of this contradiction, the organ transplantation involves a question about how to resolve relevant legal issues. As shown here, it is also necessary to discuss extra legal considerations about different interests in organ transplantation between organ donor and recipient. Although there are issues concerned with organ transplantation in terms of organ recipient, it may be construed as general medical behaviors in regard to the nature of medical cure. However, from the standpoint of organ donor, even though the extraction of organ is indispensable for the cure of organ recipient, such extraction itself is not inherent behaviors of medical cure, so it is necessary to build up a series of legal principles to legitimate such behaviors. Here, they depend on whether certain organ is extracted from living organism or dead one. Furthermore, the extraction of organ from living or dead body involves a series of questions like whether to follow the intent of person who has a disposition authority, who the person is, which legitimate effects the expression of his/her intent may have in force, and so forth. In addition, in terms of organ transplantation from living organism for successful transplantation, conflicts concerned with brain death related to beginning and end of person as principal with capacity of enjoyment of rights have been already controversial in discussions between legal and medical circles since long decades ago. Fortunately, the latest enactment and enforcement of “Organ and Equivalent Transplantation Act” gives a clue to resolve these conflicts, but there are still little reviews and studies about potential issues concerned with human respect. It is possibly expected that there will be a series of brisk academic discussions about these issues. From this viewpoint, this paper focuses on posing questions related to organ transplantation and suggesting corresponding solutions.

온라인상에서의 개인정보보호에 관한 국제 동향 - 미국의 제도를 중심으로 -

문성제(Seong Jea Moon) 한국비교법학회 2004 비교법학연구 Vol.3 No.-

개인정보라 함은 사람의 인격과 관련하여 개인을 특정할 수 있는 모든 정보로서, 개인의 성명, 주소, 전화번호, 주민등록번호 등 기타 다양한 정보가 포함되는 개념으로, 이 같은 범위는 고정되어 있는 것이 아니라 지속적으로 확대되고 있는 개념이다. 이 같은 개인정보는 특히 현대사회에서의 전자상거래에서는 불가결한 요소로 등장하고 있으며, 이에 대한 적절한 보호가 이루어지지 않을 경우에는 전자상거래의 발전을 저해하는 주 요인으로서 작용하게 된다. 더 나아가 오늘 날 PC의 보급 발전으로 인터넷 이용이 일반화 되었으며, 이에 따른 문제점들이 속출하고 있다. 즉 회원가입 과정에서 제공된 이름, 주소, 주민등록번호, 미혼여부, 생년월일, 재산상태, 취미 등 개인에 관한 모든 정보가 인터넷상에 떠돌면서, 이 같은 정보가 상업적으로 악용되기도 하며, 더 나아가 불법 개인정보유출이 범죄로까지 이어지게 된다. 따라서 개인정보의 오·남용 등 개인정보침해에 따른 피해에 대한 구제책마련이 긴급하게 요구되고 있는 실정에 있다.<br/> 이와 같은 개인정보보호에 대한 관심은 오래전에 전 세계적으로 관심을 불러일으켜 왔는데, 유럽의 경우 1990년 9월부터 유럽 ED 집행위원회는 개인정보의 자유로운 유통을 촉진하는 지침마련에 착수하였고, 1995년 10월 24일에는 ED의회와 각료이사회가 개인정보보호지침을 채택하기에 이르렀다. ED 집행위원회는 1998 년 12 월「범세계적 네트워크상의 프라이버시보호에 관한 각료선언」(Ministerial Declaration on the Pritection of Privacy on Global Network)을 통하여 각국이 네트워크 환경에서 효율적인 프라이버시 보호조치를 취할 것을 촉구하였다. 그리하여 유럽연합은 개인정보에 관한 보호주의정책을 1998년 10월 25일 발효함으로써 유럽연합이외의 국가들도 이에 대한 적절한 시책을 실시하지 않는 한 유럽연합과 전자상거래를 통한 거래를 행할 수 없는 국제통상의 문제로 제기되었다.<br/> 특히 ED지침 제25조는 적절한 수준의 개인 Data 보호를 缺한 국가와는 Data교류를 금하는 규정을 함으로써, 특히 전자상거래의 강국이라 할 수 있는 미국은 이에 대하여 큰 충격을 받았다. 그러나 이 같은 문제점들을 극복하기 위하여 미국의 Data 보호 시책이 유럽연합으로서도 만족스럽게 양지역간의 전자상거래가 저해 받는 일이 없도록 하기 위한 합의를 목표로 정부 및 일반인을 포함하여 광범위한 협의가 이루어져 왔다.<br/> 결국 우리는 ED에서의 개인정보보호지침을 통해 일정 수준의 개인정보보호 기준을 충족하지 못할 경우, 국가간의 개인정보의 유통을 금지하는 등 개인정보 보호가 선진국 주도의 새로운 무역장벽으로 대두되고 있는 현실 속에 살아가고 있음을 감안할 때, 이에 대한 대책의 수립은 국제 경쟁 사회에서의 또 하나의 책임으로 떠오르고 있음을 否認할 수 없는 것이다.<br/> Individual information relates to all information capable of defining an individual connected with his or her personality, encompassing such various information as the individual's name, address, phone number and resident registration number and so on. Its range is not fixed, but continues to be expanded. Individual information has emerged as one of the most essential elements in today's e-trade, and will hurt the development of e-trade without the proper protection of individual information. In addition to this, the prevalence of PCs has led to the popularity of the Internet, bringing about a lot of problems. That is, such individual information as names, addresses, resident registration numbers, marriage status, birthday, property status and hobbies, etc. provided in the process of membership subscription is being leaked on the Internet and being badly used for the purpose of selfish commercialism. This illegal leakage of individual information has led to a crime. In this context, it is very important that specific measures should be worked out against the infringement of individual information including the misuse and abuse of individual information.<br/> Such individual information protection has attracted a lot of attention all over the world for a long time: The ED executive committee has launched the work of ironing out instructions as to the free distribution of individual information since September, 1990; The ED congress and ministerial council came to adopt the instructions on individual information protection on October 24, 1995. The ED executive committee urged each nation to take effective privacy-protecting measures in the network environment through 'Ministerial Declaration on the Protection of Privacy on Global Network' in December 1998. With the effectuation of protective policies about individual information by ED on December 25, 1998, other nations have to face e-trade friction unless they carry out proper policies related to individual information protection.<br/> Article 25 of ED instruction in particular stipulates that a nation shall not exchange data with other nations which fail to protect individual data at an appropriate level, dealing a serious blow to America where can be called a powerful nation of e-trade. Yet a wide range of consultations have been held among the governments and common people with a view to letting e-trade between ED and America not be infringed by American policies on data protection as a vehicle for overcoming these kinds of problems.<br/> Therefore it goes without saying that the establishment of countermeasures against the matter of individual information leakage should be regarded as responsibility for we are living in a condition where the protection of individual information including the prohibition of distributing individual information among nations may act as new tariff wall imposed by advanced nations in case a nation doesn't meet the standards of individual information protection established by ED.<br/> <br/> <br/>

제조물책임의 이론적 기초

문성제(Seong Jea Moon) 한국비교법학회 2005 비교법학연구 Vol.5 No.-

Today's product circulation structure is that the products from mass-production are sold with images through advertisement in TV, newspapers, and magazines and consumed in mass. As these uniformed products are sold in mass throughout the country and the selling places are such easily accessible ones as retailers, supermarkets, and agencies. customers generally don't directly purchase the products from the company which produces, manufactures, or distributes, but do just with trust in the company or the product.<br/> Under this structure of mass production, mass sales, and mass consumption, those products of reduced cost through mass production and standardized quality are sold in large scale distribution channels. and so it is not likely that all products are perfect. In case a customer is damaged from the defect in a product, he/she can rightfully demand a damage compensation to the manufacturer. Especially, damage by a defect good is such a damage to life, body, and asset, and the range is broad and severe, thus the best way is to prevent it in advance. Nevertheless, when a damage happens ex post facto, it is necessary to seek for a remedy.<br/> But, under today's product distribution structure, customers generally purchase goods without direct contract with the manufacturer. In this case, if the distributor/seller is called to account for the damage and the compensation is smoothly processed, there might not be a big trouble. but if the damaged customer is not enough and satisfactorily compensated, or the seller/agent evades or denies the responsibility on the event on the ground that they do only selling of the product, the customer can not help thinking over the problems and the method of damage compensation. Like this, when a customer calls the manufacturer or the seller who is not in a direct contract relation with the customer, remedy action for illegal behavior was first considered in the past, but now, with the enactment of Products Liability Act (Law Number 6109, newly legislated on January 12, 2000), overall problems resident in the present civil laws can be overcome to speculate manufacturer's compensation responsibility for the damage by the defect of good manufactured, and thus an institutional tool to secure the protection of victim, improve people's living stability, and contribute to a healthy development of economy was prepared.<br/> This Product Responsibility Act has been rooted as a global standard that many countries over the world are already implementing. In the present circumstance that the world is integrating into a market named global village, domestic enterprises are experiencing huge amount of compensation lawsuits under the application of overseas strict Product responsibility act, while domestic customers have not been rescued from damages because of no preparation of domestic law when they were damaged to life and body by the overflowing overseas defect goods. Considering these problems, this Product Responsibility Act is expected to have some positive effects including i) strengthening of product safety, ii) intensification of customer protection, iii) buildup of the competitiveness of enterprises. For the enterprises, product safety plans become the major concern in adminstration, which will lead the enterprises to perform stable production and sales competition, while customers get to select and use safe products, which drives the enterprises in product responsibility to strengthen their competitiveness. Recall system protects in advance the customers from any likely damage from defect goods, while Product Responsibility plays the function of indirectly securing customer safety through rescue of ex post facto customer damage.<br/> As the result, Product Responsibility Act allows to faithfully perform customer protection in case there is any customer damage from defect goods, make the criteria of dispute settlement explicit by taking defect as the responsibility requirement, and provide

부동산명의신탁과 재산권의 인정 - 대상판결 : 서울지방법원 2003. 11. 28 제20 민사부 2003가합49028 -

문성제(Moon Seong-Jea) 한국재산법학회 2004 재산법연구 Vol.21 No.1

The registration of realty relates to the entry of rights about certain real estate and fluctuations in reality in a register book in accordance with a certain form. Its purpose is to inform the public of the possession of realty relatively more valuable than movable estate so that the security of transaction and the protection of private property may be realized. Originally the holders of realty can decide on whether they will register it or not, which has led to many illegitimate activities such as the evasion of taxes including the real property acquisition tax and a transfer income tax, etc. With a view to keeping this from happening, the special measure act on realty(No. 4244 August 1st, 1990) was enacted, which made it obligatory to register the contract statement with a seal of approval from mayors and county governors within 60 days after the acquisition of realty and which made sure that negligence fines are imposed upon those who fail to stick to it. It is registration based on titular trust that doesn't accord with its substantial relationship. This kind of titular trust registration has been approved through judicial precedents only in Korea. Realty titular trust is based on the relationship where the trustee acts as a nominal holder on the register and the truster is still regarded as a holder holding real estate in the relation between the truster and the trustee. Contrary to the real purport of nominal trust, malicious persons frequently exploit this system as a means of a slip from the grip of the law such as the evasion of taxes including inheritance tax, illegal donation of real estate to their offspring, the purchase of farmland by non-farmers under the name of farmers, the avoidance of distrain and property registry by public servants, or the avoidance of tax inspection. These acts run counter to the law and are nullified. And an agreement of titular trust becomes null. So do fluctuations in a real riight. The violators shall be fined and punished. This study works on the general issues of taday's realty titular trust, covering the future application of the law and its problems.

의약품에서의 결함의 개념과 그 증명

문성제(Moon Seong-Jea),이경환(Lee Kyung- Hwan) 성균관대학교 법학연구소 2004 성균관법학 Vol.16 No.3

All matters concerning ethical drug was not recent ones but already began to occur as pharmaceutical drugs became commercialized on large scale and thereby administered to patients owing to the advancement of pharmaceutical technology. There are some critical harmful aspects behind ethical drugs, although they consist of synthetic chemical substances to induce chemical reactions in our body so that they can help heal certain diseases and keep health. In other words, ethical drugs may still have any unknown side effect, and resulting harms may bring considerable damages even within shorter time than we think, because the drugs are often widely used among many populations around the nation or world. In the inherent characteristics of pharmaceutical drugs, they are generally approved as ethical drug mainly by the judgment of pharmaceutical values about the final result of comparing their effectiveness for certain diseases and the properties or extent of accompanying side effects respectively. However, there are still some limitations in perfectly estimating any side effect after marketing mainly through preclinical(physiochemical and animal experiment) and clinical study(human experiment). Besides, ethical drugs are typically subject to strict regulations throughout all relevant processes including preclinical and post-marketing process. Medical drugs are often used by practitioners and generic drugs are sold under the control of apothecary around pharmacy, drugstore, etc. On the other hand, the existence of ethical drug is approved with a combination of commodity and information in one. In particular, some information such as directions and warning is essential above all. Here, any pharmaceutical effectiveness and safety are confirmed and approved on the basis of certain conditions such as dosage, duration or method of administration and the like. Yet, if any violation of these prerequisites causes more or less damages in health care, it is unavoidable to bear any damage resulting from medical malpractice and pharmaceutical side effects. Therefore, we cannot help considering legal liabilities of pharmaceutical manufacturer that produces drugs causing any harmful side effects. Unfortunately, in Korea, there has been not yet any case of directly uncovering and pointing out the liabilities of pharmaceutical manufacturer in terms of pharmaceutical defect of ethical drugs, although there are a few literatures referring to the harmful risks inherent m pharmaceutical manufacturing. In the regard of these considerations, this study focuses on the necessity of suggesting any alternative or solutions for domestic pharmaceutical administration and relevant social problems even somewhat lately - in terms of latest marketing of cold remedy or tablets that contain phenylpropanolamine.

간호업무와 법적책임

문성제 대한간호협회 2005 대한간호 Vol.44 No.6

Medical services aren't done by doctors only but by different medical personnels. If any medical accident takes place, to what extent doctors, nurses and other personnels should respectively be liable for that should be determined. And when an employed doctor does any illegal medical act, his or her employer also should be responsible for that as a user. If a medical accident occurs, the victim or patient usually claims against the employer of the doctor who causes the accident for compensation. And those who assist medical treatment, including nurses, should be liable for their own acts, but in case their doctor doesn't give any appropriate directions, the doctor should shoulder the liability. This indicates that nurses are also professional medical personnels, and that they should share the liability as well. There are lots of different medical personnels, but doctors and nurses are the pivot of team treatment, and nurses should also take responsibility for their services. Doctors and nurses are equal, as they are in pursuit of the same, namely, helping patients recover their health. Only their roles are different, If they respect each other and see each other as being responsible for their own roles, they will be able to consult together. Medical information on patients and nursing information should be shared by both of them, and patients should be provided accurate treatment and nursing services. If those who offer nursing services are unaware of required information due to conflicts with doctors, it might result in threatening the safety of patients. And in case any important information isn't properly conveyed between them, it might trigger a medical accident. Sophisticated and complex medical science requires medical personnels to be professional, and nurses as well as doctors need to be an expert. The fact treatment-related accidents take place often indicates that treatment is basically attended with danger. Furthermore, patients respond to all sorts of investigation and medicine in a different manner. They should be professional and knowledgeable to predict how they might respond and prevent any possible hazardous situations, and they are expected to have more knowledge in the future. Nonetheless, there aren't yet enough studies on the legal liability of nurses, and this study is expected to pave the way for future research on nurse liability against medical accidents.