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        도메인이름 이전청구권 부존재확인청구소송에 관한 판례의 비판적 고찰

        정진섭,김동균,최재원 法務部 商事法務課 2009 선진상사법률연구 Vol.- No.46

        ccTLD 즉 '.kr' 도메인이름의 등록과 사용에 관련된 분쟁의 조정을 원하는 자는 인터넷주소분쟁조정위원회의 도메인이름분쟁조정규정에 의하여 조정위원회에 조정을 신청할 수 있으며, gTLDs 즉 '.com' 도메인이름의 등록과 사용에 관련된 분쟁의 해결을 원하는 자는 ICANN의 공인을 받은 WIPO 중재센터 등의 조정결정을 신청할 수 있다. 도메인이름 등록자는 등록대행기관을 통해 도메인이름을 등록할 때 이러한 강제 조정 내용을 담은 약관에 동의하도록 되어 있다. 통상 상표권자는 도메인이름 등록자가 등록약관에 동의한 것에 기초하여 gTLDs에 대해서는 ICANN 공인 분쟁조정기관에, ccTLD인 '.kr' 에 대해서는 인터넷주소분쟁조정위원회에 분쟁대상 도메인이름에 관한 분쟁조정을 신청하고, 이 조정 절차에서 WIPO중재센터 혹은 인터넷조정위원회는 분쟁 대상 도메인이름들의 등록을 말소하라고 결정하고 있다. 물론 도메인이름 등록자는 위의 조정부 결정과 관련하여 gTLDs의 경우엔 UDRP, ccTLD인 '.kr' 에 대해서는 도메인이름분쟁조정규정에 따라 WIPO 중재센터 혹은 조정부의 결정에 불복하여 관할권 있는 법원에 소를 제기할 수 있으며, 이는 조정절차의 피신청인에게 주어지는 권리이다. 그러나 소권은 신의칙에 반하여 행사되어서는 안 된다. 사이버스쿼터 즉 부정한 도메인이름 등록자는 도메인이름을 등록하여 사용할 정당한 권원이 상표권자에게 있다는 점도 잘 알고 있으며, 도메인이름 등록자에게는 분쟁대상 도메인이름들을 부정경쟁목적으로 사용할 의사가 있으며, 상표로서 사용할 의사 역시 있다고 하겠다. 사이버스쿼터가 분쟁대상 도메인이름들을 등록한 유일한 목적은 상표권자가 사용할 필요가 있는 이 사건 도메인이름을 선점함으로써 상표권자가 분쟁대상 도메인이름을 등록하지 못하도록 방해하고, 그럼으로써 도메인이름의 양도 대가로 상표권자에게 거액을 요구하여 부당이득을 취하고, 나아가 소비자들에게 부정한 도메인이름 등록자가 오래전에 도메인을 등록했기때문에 도메인이름 등록자만이 합법적인 권리자라는 잘못된 정보를 제공하여 소비자들을 오인혼동케 하려는 목적을 가지고 있을 수도 있다 하겠다. 도메인이름 등록자가 이렇게, 분쟁대상 도메인이름에 대한 부정경쟁목적 혹은 상표권 침해 이외의 어떠한 정당한 사용의사도 없으면서, 상표권자에게 고액의 금전을 받아 낼 목적으로 도메인이름 이전청구권 부존재 확인소송을 제기하는 것은 소권을 남용하는 것으로서 신의칙에 반하는 행동이므로 부적법 각하하는 것이 최선의 해결책이라고 할 수 있다. People who want to settle disputes related to register and usage of '.com' domain name, generic top level domains (hereinafter 'gTLDs') can apply to mediate said disputes to World Intellectual Property Organization Arbitration Center and other organizations certified by Internet Corporation for Assigned Names and Numbers. Besides, a person who likes to mediate disputes with respect to register and use of '.kr' domain name, country code top level domains (hereinafter 'ccTLDs') can submit an application to Internet address Dispute Resolution Committee (hereinafter "IDRC"), complying the rules of mediating disputes related to domain name. A domain name registrant is supposed to agree with a contract, including provisions to force him or her to agree mandatory mediation when he or she enters into a contract with a registrar. Trademark holders generally apply to mediate disputes to WIPO Arbitration Center or other certified organization for gTLDs and IDRC for ccTLDs. Usually, WIPO Arbitration Center decides that a registrant must transfer domain name to Trademark holder, and IDRC decide that a registrar must remove the register of registrant's domain name. However, as a right, a registrant can bring a lawsuit to appeal the decision of WIPO Arbitration Center or IDRC to the applicable court. However, any person cannot bring a lawsuit against the principle of good faith. An unclean registrant, so-called cyber squatter, knows that trademark holder has a right to register domain name and use it as a trademark. What is more, a registrant has intent to use the domain name with the anti-competitive purpose and to use domain name by infringing trademark. The purpose for cyber squatter to register domain name is to hinder a trademark registrant from registering disputed domain name by squatting said domain name, and then said cyber squatter to take excessive profits by blackmailing of trademark holder's money. Moreover, a cyber squatter using domain name as trademark may confuse customers, and give potential clients wrong recognition since he or she had already registered domain name before trademark registrant use domain name. Without any intent to use domain name as appropriate way except anti-competitive purpose or trademark infringement, a domain name registrant's bringing a lawsuit to blackmail of trademark holder's money is to misuse a right to sue, and it is against the principle of good faith. If a registrant, who has a intent to squat, wants to reserve and delay the administrative process to transfer domain name for gTLDs and to remove said registrant's register for ccTLDs, and he or she sues a trademark holder to decide whether trademark holder has a right to claim for prohibition of the use of domain name and whether trademark registrant has a right to claim for transfer of domain name, the court should dismiss not only a claim related to the right to claim for ban of the usage of domain name, but a claim with respect to the right to claim for transfer of domain name as a defense of trademark holder before the merit as well. Dismissal for the claim related to the right to claim for transfer of domain name as a pretrial defense of trademark holder is the best resolution to settle domain name disputes now.

      • 成功農家와 不成功農家의 營農實態 比較硏究 : 特히 農業所得決定要因의 比較部析을 中心으로

        張東燮 全南大學校 農漁村開發硏究所 1975 農業科學技術硏究 Vol.10 No.-

        This study is based on the hypothesis that the farm income situaton might be improved significantly if the farmers could utilize the resources on their own farms more efficiently. As a matter of fact, under a capitalist economy, the end purpose of farming in to earn income from the business; large incomes yielding greater satisfaction for the farmers. Characteristically, the agricultural iudustry is greatly influenced by a given environment. That the type of farming certainly differs from region to region is granted. However, the question arises as to why, for similar farms with about the same resources in the same region, farmers' income should vary so greatly. The main purpose of this paper is to answer this question. Possible answers may be many depending on points of view. In this respect, the results obtained from the study should represent a partial, rather than a complete, answer to the question. However, the author hopefully expects that the results of this study can more easily and practically be utilized as a guidance for farm management by farmers themselves as well as by the people who want to help farmers to improve their business. To accomplish the purpose mentioned above, the necessary date were collected, based on the 1973 management year, from 185 crop farms which were selected as samples from the farming areas of southern Korea covering Choongchungnam-do, Chollabuk-do, Chollanam-do, Kyungsangbuk-do and Kyungsangnam-do. The level of farm income per farm was used as a standard measure of success in business. Thirty eight business factors, representing the size of the business, organization of farming, intensity of farming, efficiency of labor, efficiency of land and efficiency of capital were used in analyzing the factors affecting the level of farm income. In comparing the business factors affecting farm income among the individual businesses, the farms that achieved the top 20 percent level of farm income were classified as successful farms, and those farms which made the bottom 20 percent level of farm income were defined as unsuccessful farms. The study was started by identifying the resources available on the two groups of farms classified. Second, the levels of farm income per farm between successful and unsuccessful farms were compared. Finally, a tentative management guideline was drawn by comparatively analyzing the business factors between the farms that achieved the top 20 percent and the bottom 20 percent levels of farm income. In spite of the efforts consumed, however, the results still have many problems to be solved. As yet, having confidence that the findings from the study will be very helpful for the farmers who desire to improve their own business and for the people who want to help farmers to improve their farming, the author is going to summarize the study as follows: 1. First, the total value of the physical assets on the succssful farms were 62 percent greater than the average of 185 farms selected, whereas, the total value of the physical assets on the unsuccessful farms were about 66 percent of the average of all farms, and 40 percent of the successful farms respectively. Second, the total acreage on the successful farms were about 36 percent greater than the average of all farms studied, while, the total acreage on the unsuccessful farms was about 83 percent of the average level of 185 farms, and about 63 percent of the successful ones. 2. The human resources on the farms were compared. First, it was found that the total man equivalent on all farms selected averaged about 2.7, However, there were no significant differences in the number of men on the farms between successful and unsuccessful ones. Second, there were neither differences in the level of education non the level of age of the operators on the farms classified as successful and unsuccessful ones. 3. The differences in the levels of farm income for the successful ones and the unsuccessful ones were more outstanding than the differences in the resources on those two groups of farms. The level of farm income for the farms that achieved the upper 20 percent level of income accounted for about 1,212,000 Won, or 71.1 percent higher than the average level of about 707,000 Won, whereas the level of farm income for the farms that made the lower 20 percent level of income accounted for about 385,000 Won, or 54.4 percent of the average level of income of all farms. Consequently, the level of farm income for the successful farms was about 3.2 times as much as that for the unsuccessful farms. 4. As the size of the business increased, the level of farm income increased but it was not necessarily proportional. Contrasting the total arable land on the successful farms of 7,001 pyong to that on the unsuccessful farms of 4,293 pyong, the one is only 63.1 percent larger than the other. Nevertheless, the level of farm income for the one is about 3.2 times higher than the other. 5. Moreover, as the size of land increased, the level of farm income also increased, but the size of land was not the only factor which affected the level of income. Even for the farms with same size of land, the level of income for the successful farms was significantly greater than that for the unsuccessful ones. 6. In order to see the differences in farm organization between two groups of farms, gross farm income and total farm expenses were studied by items. The study proved that the farms defined as successful ones allocated their resources more properly and utilized them more effectivly than the farms labeled as unsuccessful ones. As a consequence, the amount of gross farm income per farm and per man other than rice products wes drastically greater on the successful farms than on the unsuccessful farms. Especially, the rates of production per acre of upland for the successful farms were significantly higher than those for the unsuccessful farms. 7. The level of inputs per unit of land for the successful farms, however, was greatly higher than that of unsuccessful farms. 8. In addition, the amount of average capital per man for the farms that were classified as successful was considerably greater than that of the farms that were labeled as unsuccessful. The amount of fixed capita per man, eqipment per man and farm expenses per man for the farms that accomplished the top 20 percent level of farm income was greater than those for the farms that realized only the bottom 20 percent level of farm income. 9. Under the strong influences of such differences as farm organization, levels of inputs per unit of land and the amounts of capital per man, the efficiency of labor as well as the efficiency of land for the successful farms were strikingly higher than those of unsuccessful ones. 10. Finally, the efficiency of capital for the successful farms was also outstandingly higher than that for the successful farms. 11. Comparing the direct influences of business factors, such as the size of business, the intensity of farming, the efficiency of labor, and the efficiency of capital, to the level of farm income, the farms with no factors above the average made only 55.4 percent and 30.3 percent respectively of the level of farm income of the average of all farms studied, and of the farms with all factors above average. 12. Farms with 1 business factor above the average earned 129.6 percent of the level of farm income compared with the average level. However, it was far below the level of the farms' with all 5 factors above the average. It was 71.0 percent of this level. 13. Farms with 2 factors above average realized 136.2 percent of the level of farm income compared with the average level, still it was far below the level of income on the farms with all 5 factors above the average. It was 74.6 percent of this level. 14. Farms with 3 factors above average achieved 150.8 percent of the level of farm income compared with the average income, but it still was no more than 82.7 percent of the farms with 5 factors above the average. 15. Farms with 4 factors above average accomplished 174.6 percent of the level of farm income compared with the average income, and reached almost the same level of the farm's with all factors above average. 16. The level of farm income for the farms with all 5 business factors above the average was 182.5 percent higher than the average level and 3.3. times greater than the farms with no factors above the average. 17. In short, nearly all of the 28 busness factors, which were categorized to 6, for the farms that achieved the top 20 percent level of farm income were obviously larger than the average level of 185 farms selected; whereas, except for a few obviously of minor importance, nearly all the factors for the farms that made the bottom 20 percent level of farm income were significantly smaller than the average level of all farms studied. The size of business was one of most important factors affecting the levels of farm income. However, expansion of farm size was not the only way to achieve the highest level of farm income. The successful farm certainly had better organization of farming, high degree of intensity in business, high efficiency of labor, high efficiency of land, and high efficiency of capital. As a consequence, the results from this study strongly imply that the reason farm income is low is not due to the insufficiency of resources available, but rather due to the inadquate utilization of given resources on the farms.

      • 망간페라이트 나노 분말의 수계분산거동 및 특성

        배동식,김은정,한경섭 국립7개대학공동논문집간행위원회 2004 공업기술연구 Vol.4 No.-

        Dispersion stability of nanosized MnFe₂O₄ powders which was produced by glycothermal process were studied in aqueous suspension using ESA(Eletrokinetic Sonic Amplitude). The average particle size of the synthesized MnFe₂O₄was about 30±10nm. The dispersion and rheological behavior of MnFe₂O₄nanoparticles aqueous suspension was investigated using MnFe₂O₄as a disperse agent. The colloidal stability of nanosized MnFe₂O₄aqueous suspensions at different pH values has been investigated by means of zeta potential, sedimentation, average particle size and microstructure of green body. The isoelectric point of MnFe₂O₄powders is at pH around 5.5 and the value of zeta potential is at its maximum near pH 11.

      • 農産物原種場의 經營實態에 關한 事例硏究 : 全羅南道의 境遇를 中心으로

        長東燮,金容在,金衡模 全南大學校 農漁村開發硏究所 1977 農業科學技術硏究 Vol.12 No.-

        The main purpose of this study is to draw a business guideline which can be used by Chonnam Provincial Foundation Seed Farm to improved its own business. In addition, the author expects this study will be a pioneer work to other provincial foundation seed farms in Korea for analysing their business. Also, the author hopes that the result of study should be a useful standard for the government to measure and evaluate the financial budgets submitted and the management accomplished by the farms. To accomplish these purpose, available business data, based on 1975 management year, were collected from the farm. In order to find the starting point to the problem, the national average from the Ministry of Agriculture and Fisheries and the standard farmbusiness data of Chollanamdo area from the National Agricultural Economics Research Institute were used as a comparative measurement for analysing the input-output relationship of the farm. In spite of the efforts consumed, however, the results still have many problems to be reexamined. As yet, having confidence that the findings from the study will be helpful to the foundation seed farms and to the government as well, the author is going to summarize the study as follows: 1. Analysing the management of rice foundation seed and registered seed production per 10a of paddy land, total gross receipts were 103,314 won and total farm expenses were 65,917 won. Consequently, farm income per 10a of land was 37,326 won which is relatively small compared to the national average of 62,016 won. 2. In the case of barley foundation seed and registered seed production per 10a of upland, total gross receipts were 32,149 won, whereas total farm expenses were 39,072 won. As a result, there was a deficit of 6,923 won, which is far below the national average of 16,845 won. 3. Studying the result of soybean foundation seed production per 10a of land, total gross farm receipts were 29,876 won and total farm expenses were 31,856 won. By the result, farm income computed to 1,980 won which will be compared to the standard farm income of 16,451 won of this area, estimated by the National Institute of Agricultural Economics. 4. Seeing the financial statement of potato foundation seed farm bnsiness per 10a of land, total gross recipts were 64,208 won. At the same time, there was 62,661 won worth of farm expense. As a consequence, the net reward from the business was 1,547 won. It, however, is also a very small result compared to the standard farm income of the same area. 5. As pointed out above, the financial perfomance of all kinds of foundation seed prodution farming seems to very small compared to those of general farms. Yet there are acceptable reasons we must recognize. First, the purposes of seed production farms and general farms are quite different. The end purpose of a foundation seed farm is not to earn income but to produce good seed for the general farms. Second, the characteristics of foundation seed farms and general farms are very different. General farms have many self-supply items foundation seed farms, however, mostly supply their inputs from market places. Especially, the one performs its business mostly by its own unpaid family labor, the other, on the other hand, performs its enterprises entirely by employed labor. Besides, the labor requirement of the foundation seed farm is absolutely larger than that of a general farm. 6. In order to minimize the cost of farming, the substitution of labor forces to machinery is recommended. Readjustment of arable land is needed; emoloying a professional technician for machinery replacement is also necessary. 7. To increase the efficiency of labor, a flexible wage unit system rather than the prevailing fixed and unified wage system should be adopted. 8. Finally, encouraging the managers by giving appropriate incentives is also considered as a very important factor to improve over all business efficiency.

      • 訴訟遂行法

        金仁燮,李東律 관동대학교 1996 關大論文集 Vol.24 No.2

        Die Prozeβfuhrungsbefugnis ist die Befugnis, uber das streitige rechter oder Rechtseverhaltnis einen Rechtsstreit auf der Aktiv-oder Passiveseite im eigenen namen fuhren zu durfen. Die Prozeβfuhrungsbefugnis dient auch der Abwehr won Popularklagen, und ist genau von der Sachlegitimation zu unterschein, und es hangt eng mit dem formellem Parteibegriff zusammen. Partei sit, durch und gegen den rechtsschutz begehrt wird, eine materiellrechtliche Beziehung zum steitigen Rechisverhaltnis ist nicht erforderlich. Fehlt die Prozeβfuhrungsbefugnis, so wird die Klage als unzulassig abgewiesen, fehlt die Sachlegitimation, so ist die Klage als unbegrundet abzuwweisn. Die Prozeβfuhrungsbefugnis ist eine Proxeβvoraussetzung. Der Dritte hat das Recht, im eigenen Namen uber ein fremdes Recht oder eine fremde Verbindlichkeit zu prozessieren, in diesen Fallen spricht man von Prozeβstandschaft des Dritten. In diesen Prozeβstandschaft des Dritten sind eine gesetzlicher Prozeβstandschaft und eine gewillkurte Prozeβstandschaft.

      • 持續的 農業體系 分析

        金東燮,金大熙 公州大學校 地域開發硏究所 1995 地域開發硏究論叢 Vol.3 No.1

        Summary The interest of sustainable agricultural system (organic agricultural system in Korea) is getting popular because of serious environmental pollution. This paper was designed with the intention of improving the understanding levels of sustainable agricultural system by comparing the characteristics of sustainable agricultural system with chemical agricultural system. The main point of sustainable agricultural system is that current agricultural system adapts to an ecosystem for nature conservation. This it would be completed with changing of attitudes and values of agriculture and with much interest and study of sutainable agricultural system. The interest of sustainable agricultural system (organic agricultural system in Korea) is getting popular because of serious environmental pollution. This paper was designed with the intention of improving the understanding levels of sustainable agricultural system by comparing the characteristics of sustainable agricultural system with chemical agricultural system. The main point of sustainable agricultural system is that current agricultural system adapts to an ecosystem for nature conservation. Thus it would be completed with changing of attitudes and values of agriculture and with much interest and study of sustainable agricultural system.

      • KCI등재

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