법체계의 통일성

오세혁 홍익대학교 법학연구소 2002 법학연구 Vol.4 No.-

Law is a system of legal norms. A legal system is not a cluster of chaotic legal norms but a complex of legal norms organized by a certain formation principle. They believe, futhermore, there are no conflicts of legal norms among same legal system. Namely they regard the unity of legal system as a evident principle. However, in fact legal norms of a legal system do not always construct a unified legal system. And what is worse, the unity of legal system fades away gradually in very differentiated modern society. Does the unity of legal system lose its significance in jurisprudence nowadays? And system-oriented approach in legal method? Absolutely not. Most legal theory and legal philosophy including legal positivism presuppose the unity of legal system. Legal dogmatics can not still dispense with system-oriented approach. So every legal argumentation in theory and practice necessitates the unity of legal system. The concern of this paper is to define the unity of legal system and to inquire into the nature of the unity-principle. The writer concentrats on the concrete content of the unity-principle from the viewpoint of legisprudence as well as jurisprudence. The paper is presented in five parts, each of which covers one of the main areas - the concept and formation principle of legal system(II·III), the concept of the unity of legal system(IV), the nature of the unity-principle(V), the content of the unity-principle(VI). In sum, a legal system must be organized to be coherence. The coherence of legal system consists of the unity(=consistency) and the closure(=completeness) of legal system. The unity of legal system is not a evident principle but a postulate addressed to legialators or jurists. Every legislator or jurist must avoid contradictions between legal norms as much as possible.

생명윤리법의 발전에 따른 재산법 분야의 변화

오세혁,이은영 이화여자대학교 생명의료법연구소 2008 생명윤리정책연구 Vol.2 No.1

Bioethical Law(= Bioethics and Law) is a branch of law that make researches in legal implications as well as ethical implications of life science and biotechnology. The development of life science and biotechnology leads to some new enactments, for example, Bioethics and Safety Act 2004. Furethermore, it brings about changes of many existing law in general. Life science and biotechnology especially present urgent legal problems in major fields of civil law i.e. law of property, law of obligation, and law of status. Nowadays legal scholars and practitioner in civil law deal with hot issues resulting from the development of biotechnologies, for example, capacity of enjoyment of rights & legal capacity, nature of property as object of rights, validity of contracts, and damages suffered by torts. Moreover, the development of biotechnology has an effect on the most fundamental principle of civil law i.e. the principle of autonomy and key concepts including property, liability, consent, agency power etc. So basic legal institutions including ownership, dealings, damages should be revised and reconstructed in accordance with the developments of biotechnology and bioethical law.

話用論的 規範觀과 意味論的 規範論 : 規範의 本質에 대한 言語哲學的 探究

오세혁 홍익대학교 법학연구소 2000 법학연구 Vol.2 No.-

The law is a kind of norms. It is necessary to inquire into the nature of norms in order to understand law. The general theory of norms deals with the nature of norms. It includes inquiries into the linguistic formulation of norms, the analysis of their structure, their formalization and logical symbolization as well as their concept and validity. As any theory of norms presupposes the concept of norms, the concept of norms is the most important theme of inquiry . There are many conceptions on the nature of norms. Among them, the pragmatic versus semantic conception or expressive versus semantic conception of norms rise to the foreground of legal theory and legal philosophy. Especially, deontic logicians have interests in these two conceptions of norms in relation to the logical analysis of norms. The paper focuses on the ontological status and logical properties of norms in the light of the pragmatic versus semantic conception of norms. These conception of norms have an reference to the attributability of truth-value to norms, the possibility of logical relations between norms and the possibility of permissive norms etc. According to the pragmatic conception , norms are the result of the prescriptive use of language. The result of the performance of commanding action is a command. For the semantic conception, on the other hand, norms are proposition-like entities, i.e. the meaning of normative sentences. Norms are not language-dependent. At first sight, it seems that there is no room for any eclecticism. In fact, norms have the two-sided characters. Norms are the result of the performance of the speech-acts. But, if they come into being, they exist as independent entities. From the viewpoint of philosophy of language or semiotics, the pragmatic conception and the semantic conception of norms see one side of norms respectively. But, there is no crucial criterion for the priority between them. The choice between them depends on the ontological view of decision-maker. Thus, it seems that the pragmatics versus semantic conception of norms is not a question of truth, but a question of the philosophical style or personal preference.

신법우선의 원리

오세혁 홍익대학교 법학연구소 2001 법학연구 Vol.3 No.-

Law exist as a system of legal norms. We hope our legal system is constructed consistently, and legal norms in our legal system coexist harmoniously. But, there are so many confilicts of norms in the legal system. The confilict of legal norms infringes on the unity of legal system. Furthermore, the legal system can not work as standards of human conduct. So, confilicts of norms must be solved. How confilicts of norms can be solved? Conventionally, they said that confilicts of norms appear just apparently. They believe conflicts of norms can be solved by the correct interpretation of legal norms. The belief remains amaong jurists and lawyers until now. Many jurists and lawyers suggest and develop metanorms of solution including priority―indicating principles. In particular, they regard the lex posterior principle i.e. 'lex posterior derogat legi priori' as a priority―indicating principle. The lex posterior principle is recongnized as a self―evident or apriori valik legal norm among jurists and lawyers. However, there is little investigation into the nature of the lex posterior principle. There is no argument bout it in the general jurisprudence as well as particular jurisprudence. This paper reviews the nature, content and limit of the lex posterior principle from the viewpoint of legal theory/philosophy. Above all, the lex posterior principle is not a self―evident legal norm, but a prositive legal norm. It works after the legislator made it. If the lex posterior principle is not legislated, it requires theoretical justification. Moreover, the lex posterior principle has another limitations. In conclusion, we must know the nature of the lex posterior principle in order to solve conflicts of norms properly. In short, conflicts of norms can be solved by the lex―posterior principle or derogation.

법의 효력영역 : 시적 효력영역을 중심으로

오세혁 홍익대학교 법학연구소 2003 법학연구 Vol.5 No.-

Not a law can be applied to any object in every place all the time without distinction of person. Above all, a law is neither permanent nor universally valid. A permanent and valid law is contrary to the nature of law, the nature of the human being and the world. A law directs a certain person within a territory to act in a certain way for some time. A law is limited by time, space, person, objects. There is a necessary gap between the time of action and the time of application of law. When law has changed during the period, which of law is applied to the case? The application of new law gives binding force to the law that is not valid at the time of action. On the contrary, the application of old law results in the approval of the binding force of the law that is already abolished. This paper deals with the boundary of legal validity including the temporal boundary of legal validity. The argumentation centers on the retroactive (retrospective)/prospective effects of legislation and the continuing effect of legislation( = effect of legislation that was abolished. still in effect with respective to the cases arose during such legislation was valid). Before analysing the boundary of legal validity, the paper investigates into the meaning of legal validity the beginning and the end of legal validity. This paper can offer a clue for solving problems including the effect of decision on unconstitutional law, the contitutional limits on ex post facto legislation, the continuing effect of transitory law(Zeitgesetz), the effect of abolishment(derogation) .

이동 애드 혹 네트워크에서 QoS를 지원하는 AODV 라우팅 프로토콜

吳世德,趙榮泰,丁燦赫,金玄郁,李光培,姜景仁,朴京培,文泰洙,郭承郁,河載承 明知大學校 産業技術硏究所 2003 産業技術硏究所論文集 Vol.22 No.-

Abstract - In this paper, we propose a bidirectional mobile Ad Hoc routing protocol based on AODV(ad-hoc on-demand distance victor routing) with QoS(quality of service) support. At presence, wireless mobile communication focuses on how to efficiently support mobility of users more than QoS guarantee. However, in order to satisfy requirement of various applications which have been or will be served, QoS guarantee between end point is a very important issue. The existing AODV routing protocol is implemented to use only BE (Best Effort) service. However, actual wireless mobile environment requires to reduce a waste of communication resources and meet with the real-time change of data paths by setting up routes with QoS support, considering available communication resources at each node in advance. Therefore, in this thesis, we propose an adaptive QoS support method using hello message in order to rapidly meet with the change of available communication resources and to smoothly perform route maintenance. For performance evaluation, we analyzed the average date reception rate. At that time, we used evaluation parameters such as node's mobility -stop time, hello message period, and packet priority, considering the node's mobility and the number of best effort/QoS data flows. As results, we found that with our proposed method the average data reception rate was increased 16.3% for 0 mobility-stop second case and 4.7% for 300 mobility-stop second case.

法과 論理

吳世赫 한림대학교 법학연구소 1996 한림법학 FORUM Vol.5 No.-

관습법의 본질과 성립요건에 관한 고찰 : 관련 판례에 나타난 논증에 대한 분석 및 비판

오세혁 홍익대학교 2007 홍익법학 Vol.8 No.2

우리나라와 같이 성문법 (成文法) 중심의 대륙법계 국가에서는 법은 헌법, 법률,명령 등 주로 제정법의 형태로 둥장한다. 물론 성문법 중심의 국가에서도 관습법이나 판례법과 같은 불문법이 존재한다. 특히 관습법은 법의 원초적인 형태로서 전통적으로 법체계의 주요한 지위를 차지하고 있었다. 관습법에 대한 논의는 법철학적으로도중요한 의미를 갖는다. 왜냐하면 관습법에서는 법적으로 근원적인 현상이 문제되므로 관습법을 다루는 모든 이론들은 근본적인 것에 깊숙이 파고들지 않을 수 없기 때문이다. 그리하여 오래전부터 관습법은 법원론(法源論)의 영역에서 그 본질, 성립 및 소멸 요건,확정기준,효력 둥이 심도 있게 논의되어 왔다. 근년에 신행정수도의 건설을 위한특별조치법이 성문헌법을 개정하는 것인지가 쟁점이 되었던 헌법재판소의 이른바 신행정수도건설특별법 위헌확인결정에서, 또 종중 구성원의 자격을 성년 남자만으로 제한하는 종래 관습법의 효력이 문제되었던 대법원의 이른바 종중판결에서 관습법은 다시금 법학계의 주목을 받았다. 이제 관습법은 단지 이론적인 관심의 대상에 그치는 것이 아니라 실무적으로도 중요한 의미를 갖는단계에이른것이다. 오늘날 성문법국가나 불문법국가나 가릴 것 없이 관습법의 비중이 현저하게 줄어든 것은 부인할 수 없다. 그로 인하여 관습(법)은 그리 중요한 법원이 아니고 입법부가 제정법으로 그 법적 지위를 박탈할 수 있다는 뜻에서 종속적인 법원에 불과하다고 과소평가되기도 한다. 하지만 이는 제정법만능주의가 빚어낸 그릇된 관념에 불과하다. 제 아무리 제정법이 생활세계의 모든 영역을 빈틈없이 채운다고 할지라도 틈이 있고, 생활세계의 변화는 그 틈을 더 벌려놓을 것이다. 관습법은 그 틈 속에서 자라나 그 틈을 메운다. 법의 세계에서 관습법을 축출할 수 있다고 믿는 것은 어리석은 기대이다. The highest courts in Korea dealt with very important cases of customary law in recent years, so customary law became the center of public interests. Customary law as original form of law holds a important position in a legal system. Legal scholars take customary law seriously because it is related to something fundamental in law. In particular, legal philosophers deal with issues about customary law, for example its nature, requirements/standards of its existence or disappearance, its validity traditionally. Customary laws come into existence spontaneously in a certain legal community. Customs shift into customary laws by acquisition of opinio necessitatis of members in the legal community. While customs are facts, customary laws are norms that have the binding force to the members of the legal community. From the era of codification till now, however, the portion of customary laws in legal systems diminished in proportion to the strengthening of the government monopoly of legislation. Is customary law degraded into a useless thing in modern legal systems nowadays? Not. Customary laws make up for the weak point of statutes that remain fixed as soon as established. However full of statutes the whole world is, there is gaps in legal systems. And changes of the world will get gaps deeper and larger. Customary laws grow in gaps and fill up gaps. It is foolish to believe that customary laws can be removed from the law's empire.

MANET 라우팅 프로토콜 QoS 지원서비스의 성능평가에 관한 연구

鄭燦赫,金鉉郁,李光培,姜景仁,朴京培,劉忠烈,吳世德,裵振勝,趙榮泰 明知大學校 産業技術硏究所 2004 産業技術硏究所論文集 Vol.23 No.-

In this paper, we evaluated two main QoS supporting routing protocol on wireless ad hoc network. At presence, wireless mobile communication focuses on how to efficiently support mobility of users more than QoS guarantee. However, in order to satisfy requirement of various applications which have been or will be served, QoS support service between source and destination becoming a very important issue. Of all routing protocols, DSR and AODV are very important routing protocol in MANET. So we simulated DSR and AODV QoS Routing Protocol Through simulation evaluation tool NS(Network Simulation) based on various environments.

GMAHN 환경에 적응하는 에러 복구기능을 이용한 AODV 라우팅 프로토콜

정찬혁,오세덕,배진승,이기원,장양근,이광배,김현욱,유충렬,하재승 明知大學校 産業技術硏究所 2006 産業技術硏究所論文集 Vol.25 No.-

Mobile nodes in ad hoc mobile networks typically communicate over wireless channels and are capable of movement. These are networks that support multihop communication and can be formed on a temporary basis. This paper proposes a solution that allows mobile nodes to access the wired Internet and to roam from base station to base station. And we also develop the efficient method that adapts in Global MANET which can be changed over time. It is observed that we can reduce not only error detection time but also network load, thus increasing the data reception rate in Global MANET Environment.