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朱仁 건국대학교 1989 論文集 Vol.29 No.2
The modern spirit of the Law of torts which was born on the basis of a liberal and individualistic thought in the 18th century has demanded a wrongdoer's intention or negligence as a necessary condition of a compensation for damage in the accident. But it has not become easy to prove the condition because of the increase of the industrialization which contains much risk. Moreover a certain project authorized by a Goverment such as an atomic power station may cause fearful damage without any negligence. And terrible accidents used to occur in an instant through minor carelessness of the injured. In these cases, the injured person has to account for the whole loss of himself according to the traditional principle of the Law of Torts which has demanded a wrongdoer's negligence. We don't think it is reasonable. None the less there's an obvious limit to extend a range of liability for the positive law, Article 750 of the Civil Law, which insists a wrongdoer's intention or negligence for a compensation. Therefore we should try to find a proper classification of torts by dividing a different kind of accidents on which are not blamed for wrongdoers' intention or negligence from all. And then the foundation of liability for the accidents is to be defined. And it's contributions to the principle of the Law of Torts and it's amendment will be great.
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주인 韓國仲裁學會 2004 중재연구 Vol.13 No.2
Conciliation is one of the most effective ADR(alternative dispute resolution) which takes the place of civil procedure. It is achieved with disputants' independent will. The disputants negotiate each other, and make peaceful settlement. If a compromise is effected between the two, it regards the compromise as a judgement of the Supreme Court. This effect on the conciliation is afford a basis for the private autonomies. But nowadays, the practical use of the private autonomies is not thoroughgoing enough in our country. It is a matter of no uncommon occurrence for the member of a conciliation commission to form a conclusion about the dispute and to persuade the disputants to accept the conclusion. Even the judges have a tendency to conduct a conciliation like civil procedure. Under these circumstances, it's harsh to the disputants that a compromise in the conciliation has an effect like the judgement of the Supreme Court. So you should reconsider carefully the role or service of a conciliation commission. The role of a conciliation commission must be to guarantee an atmosphere of freedom, and for disputants to negotiate without restraint. So the members of a conciliation commission should make an offer the disputants the information on the members and proceedings of the conciliation. It will make the disputants have a firm belief that the members are fair and conciliation will be progressed in a fair. Moreover they have to notify the disputants of the estimated norms which is concerned in the dispute, too. It will facilitate the negotiation and compromise, and will justify claim preclusion(res judicata) which is based on Korean Civil Conciliation Law(Article 29) says that conciliation has the full force and effect of a civil judgement of the Supreme Court.
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주인 목원대학교 사회과학연구소 2004 産經硏究 Vol.18 No.-
IMF 체제 이후 채권의 만족을 위한 강제집행이 빈번해지고 있다 그러나 강제집행은 채무자의 재산이 있는 경우에 가능한 것이므로 채무자가 자력이 없거나 재산을 은닉한 경우에는 강제집행이 실효를 거둘 수 없게 된다. 채권자취소권이란 채무자가 강제집행을 피하기 위하여 재산을 은닉하는 행위를 한 경우에 채권자가 그 채무자의 사해행위를 소송을 통하여 취소시키는 제도를 말한다. 채무자의 사해행위를 취소시켜 재산을 채무자에게 복귀시킨 후 채권자가 그 재산에 대하여 강제집행을 하기 위해 밟는 절차이다. 이러한 채권자취소권은 채권자보호를 위한 제도이기는 하지만, 일단 유효하게 성립된 타인간의 법률행위를 제3자인 채권자가 취소시킨다는 점에서 또한 민법이라는 실체법에 규정된 제도이지만 민사소송이라는 절차법을 통하여 실현된다는 점에서 그 법적 성질과 채권자취소권 행사의 효과에 대한 논리적인 정비가 필요하다. 이를 해결하기 위하여 채권자취소권의 본질에 관한 이해가 우선 되어야 할 것이다.
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朱仁 건국대학교 1991 論文集 Vol.32 No.1
Material Preclusion is occurred upon a regular range when civil judgement was settled. And repetition and reassertion of the object of a lawsuit are not allowed both the parties concerned and the court. The code of Civil Procedure § 202 I defines 「Material Preclusion comes up to the only object of a lawsuit in the text of a decision.」, therefore the decision in reasons for judgement is beyond the Material Preclusion. This priciple allows the following unreasonableresult. A defendant who lost a suit to be demanded to turn his building over a complainant can bring a case before the court again for the same building, because the text of a decision doesn't contain a valid sales contract which was a basis of the decision. This case shows that a decision of the court could not settle a practical dispute perfectly at one time. The result like this conflicts with the aim of Civil Procedure. So it is considered reasonable to give a preclusion to the decision in reasons for judgement. The problem is what its foundation is and what its condition is. When the decision in reasons for judgement was made in the former court upon a point at issue, and then the parties. concerned had argued about the point, and the court also had made a material inquiry, the decision in reasons for judgement has to have a legal binding force in the tatter court.
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