사비니(F. C. v. Savigny)와 역사법학

이동희 ( Dong Hee Lee ) 단국대학교법학연구소 2009 법학논총 Vol.33 No.1

Historical jurisprudence came to prominence during the German debate between Anton Friedrich Justus Thibaut and F. C. v. Savigny over the proposed codification of German law. It emphasized the historical limitations of the law seeking to improving legal life through innovation of Jurisprudence. It stood in opposition to an earlier movement called rational Natural Law codifying non-historical and abstract speculation, and everlasting legal principal. Friedrich Carl von Savigny addressed historical study in the science of law based on the belief that the law originates with society evolved in an organic manner over time without interference from the authorities. He argued that law should be discovered in the judicial and social life as traditions, customs, language, practices and beliefs of the people. Historical jurisprudence, however, provoked criticism that it considered the source of law as the professional duty of lawyers to base their academic work on law on ascertaining the will of the people in the development of a legal system. The German Historical School has had considerable influence on the academic study of law in Germany continuing development of so called Pandektenwissenshaft and Begriffsjurisprudenz (conceptual jurisprudence) by Georg Friedrich Puchta and Bernhard Windscheid, and leading to the enactment of German Civil Law(1900).

외국판결의 승인·집행에 관한 고구

김태륜 단국대학교부설법학연구소 1995 법학논총 Vol.21 No.1

Die verfassungsrechtliche Garantie der kommunalen Selbstverwaltung in Deutschland

Wolf-Ruediger Schenke 단국대학교부설법학연구소 2001 법학논총 Vol.25 No.-

행정조사기본법(行政調査基本法) 입법과정(立法過程)에 관(關)한 고찰(考察)

김재광 ( Jae Kwang Kim ) 단국대학교법학연구소 2009 법학논총 Vol.33 No.2

This paper focuses on major issues in legislating the Framework Act on the Administration Survey of Republic of Korea. Legislation of Framework Act on the Administration survey has important implications for fundamentally changing the paradigm of administrative survey in the past and will be the opportunity to enhance one-dimensional for protection of the research subjects rights. It has important implications for The Republic of Korea`s the Framework Act on the Administration Survey of Republic of Korea to be the world`s first law with a status as the general law of administrative survey. In terms of that, it will be also meaningful to review this act in the aspect of legal history. Framework Act on the Administration survey can be called a general law of administrative survey consisting of 30 provisions below: Chapter 1, General Rules, Chapter 2, the establishment of survey plan and selection of survey, Chapter 3, survey method, Chapter 4, conduct an survey, Chapter 5, establishment of self-management system, Chapter 6, supplementary provisions. Enactment of Framework Act on the Administration survey has important meaning to change unilateral, multiple and individual form of administrative survey in the past with collaborative and joint one. They have had considerable controversial legal principles on the enactment of Framework Act on the Administration Survey both in the administrative agency internally and the process of making it in the National Assembly. The essential issues of Framework Act on the Administration survey discussed in the process of legislation are below, and I review them in this paper: (1) agency to charge law (2) definition of administrative survey (3) loss of legislative effectiveness under coverage limited (4) the basic principles of administrative survey (5) the operating plan of administrative survey (6) survey period and the subject selection (7) joint survey (8) procedural limitations of the administrative survey (9) protection the rights of those who surveyed (the rights and interest of those who surveyed in the method of survey, in the process of it, and after collecting information) (10) sanctions against self-reporter informing false (11) insufficient effectiveness caused by a lack of penalties (12) the claim rights of launching administrative survey. A broad consensus on the needs of its legislation has eventually been a tow of making it, in terms of fundamental review needs for traditional administrative survey system which we mainly ran it sanctions for a administrative effectiveness such as checking violation law and punishing it, the expansion of autonomy and creativity in the private sector, and national competitiveness improvement with breakthrough improvement of government regulation. Framework Act on the Administration survey meets with public approval on some provisions below: to stipulate basic principles of the administrative survey, to clarify the principle of regular and joint survey, to prohibit multiple survey which has been pointed out many problems in the past, to give advance notice for the subject rights, to give the opportunity to submit comments, to recognize the delay rights of survey, to recognize the rights of change investigator, to notice of survey result, to ensure recording rights and video recording rights, to ensure the presence rights of expert, and when investigating a third party supplementary, to give the notice and the opportunity of submitting the opinion to subject of survey. The pioneering legislative experience, Framework Act on the Administration survey of R.O.K, will provide a very significant implications to legislation of administrative survey in East Asian countries, and further globally.

부패방지법의 제정 이후 변화와 향후 과제

이기수 단국대학교법학연구소 2013 법학논총 Vol.37 No.2

The Korean Corruption Prevention Act was legislated with no right to investigate the anti-corruption exclusive organization, the Anti-Corruption Commission, against the expectations of academic and nation at the time of legislation. The results received reviews of not enough even with the many outputs from efforts of exclusive organization. Besides, the exclusive organization, the Anti-Corruption Commission, experienced degradation and reduction of organization passing Korea Independent Commission Against Corruption and combined to Anti-Corruption and Civil Rights Commission. The main reason was that the exclusive organization with its role and authority did not fulfilled the expectations of nation. In order to overcome these problems and do it role, the authority of executive function of exclusive organization such as right to investigate and enough independence of organization are needed. In addition, citizen participation should be activated for successful performance of anti-corruption policy, and improve and declaration activation of anti-corruption consciousness should be secured. Efforts in various fields such as whistle-blower protection increase, condition improvement for public officials, government administration transparency secure, upright culture proliferation should be performed with strong anti-corruption eradication will in systematically and long-term.

미국 신용카드제도의 차지백(Charge-back) 권리와 전자지급시스템에서의 활용가능성

김성진 ( Sung Jin Kim ) 단국대학교법학연구소 2009 법학논총 Vol.33 No.1

Even if clearly identified Internet Jurisdiction rules to sue online businesses in the consumer`s location are enacted, few consumers still would select formal litigation procedures since consumers have to pay for high lawsuit costs, and feel emotional irritation while the disputed amount from the electronic transaction is usually low. To solve these problems, electronic commerce should provide simple inexpensive, fast, and practical methods to handle disputes with online consumers. Until now, the most popular electronic payment method in the Internet transactions has been by credit cards because Internet consumers are familiar with them and they can enjoy charge-back rights under Regulation Z. Electronic money has various benefits that basically lead to the expansion of its use in Internet transactions. These benefits include privacy, lower costs, reductions in credit card fraud, and an increased convenience for consumers. However, Regulation Z does not provide consumer protection for Internet consumers using electronic money, but charge-back rights protect credit card users. Ultimately, charge-back rights should be extended to new electronic payment systems for the following reasons. First, that extension is viable without obvious technological difficulties. Second, merchants would not refuse to increase consumer protection for electronic money in Internet transactions. Third, charge-back options for new electronic payment methods will facilitate a sound competitive Internet market. Fourth, a charge-back option applied to new electronic payment systems provides a primary remedy to online consumers while decreasing the costs of further dispute resolutions for both consumers and sellers. Finally, this thesis proposes that, through international organizations, national governments worldwide should institute a new Convention regarding charge-back systems in new electronic payment systems to make charge-backs effective in member countries. Subsequently, consumers could make online purchases with more confidence, using convenient electronic payment methods under charge-back protections. Both Internet consumers and merchants, worldwide, would enjoy benefits from expanded charge-back rights if they were applied to the new electronic payment systems.

일본의 국제재판관할 법제화 동향과 미국 및 EU의 규범과의 비교 -인터넷 분쟁의 국제재판관할권을 중심으로-

정영수 ( Young Soo Jung ) 단국대학교법학연구소 2009 법학논총 Vol.33 No.2

Private International Act looks to geography when determining international jurisdiction to adjudicate. But in the internet geographical borders of countries can be ignored. A question arises as to whether the traditional Private International Act rules on determining international jurisdiction to adjudicate are to solve the international jurisdiction issues arising from international disputes in the internet. It is difficult to answer this question. Because the international rules on determining international jurisdiction to adjudicate is still a matter of debate. The problem of international jurisdiction on internet is the very basic problem to settle dispute related with internet. However, there is no established rule and written domestic law about international jurisdiction. The present Japanese rules of international adjudicative jurisdiction authorized by Supreme Court, are to apply the provisions for internal jurisdiction unless there are exceptional circumstances from the viewpoint of equal treatment of parties and proper and prompt court proceedings. The present rules appear to be pradoxical. The rules were originally introduced to achieve predictability, like the Brussels Regulation. However, they were modified by the reservation of exceptional circumstances. The reservation has become a real part of rules and has made the present rules flexible and filled with broad discretion, like the U.S case law on jurisdiction. Now the Ministry of Justice of Japan is preparing to a law-making project on international adjudicative jurisdiction. They can gain predictability on international adjudicative jurisdiction by the possible statutory rules from the project.

일본의 예방접종 피해에 대한 국가보상체계의 현황과 시사점

이호용 ( Ho Yong Lee ) 단국대학교법학연구소 2009 법학논총 Vol.33 No.1

There are several main theme about "national vaccination trouble compensation". The first is "what is legal character of vaccination trouble compensation" in point of liability laws, that is about compensation for damage or compensation for loss and by deciding characteristics of compensation, make to effect on legal access for compensation and amount of compensation. The second theme is about law and policy on compensation system. That is management of compensation system and its organization and function, trouble investigation process, compensation application process and contents and calculation standards of compensation. In this paper, I hope to deal the latter because the former is dealed already in the precedent study of me which is presented in first workshop of "Current State of National Vaccine Injury Compensation Programs Worldwide and Implications for Development of Korean Healthcare System" that is main project of this study. Specially I deal with Japan, japanese vaccination trouble compensation system. Japan is very similar with Korea in law and medical system. There is little to be different between the two, and it is easy to find implications of vaccination trouble compensation system and it is high to acceptance possibility of it. The lynchpin of vaccination trouble compensation are three point, those are prompt investigation, fair treatment, reasonable compensation. Investigation and treatment process is very similar with Korea, so there are little to be implicated from japanese compensation system. Therefore the key of compensation problem is reasonable compensation. Japanese methods and amount of compensation are various and far more than those of Korea. By taking cases of Japan, compensation types and amount is readjusted to a realistic level than now.

憲法에서의 勤勞活動權 : 勤勞權과 勞動3權의 內容 및 制限을 中心으로

金勝年 단국대학교법학연구소 2001 법학논총 Vol.25 No.-

SW 산업의 신성장을 위한 "SaaS 임치"의 도입 방안

손승우 ( Seung Woo Son ),김태열 ( Tae Yeol Kim ),지석구 ( Seok Koo Ji ) 단국대학교법학연구소 2009 법학논총 Vol.33 No.2

Recently, software distribution and use methods have been changed from a method where a user possesses software to a method where software is provided as a service through the Internet (which means Software as a Service and is referred hereinafter as `SaaS`). According to the SaaS method, since the software and data are not possessed by the users, the supply of the service may be unexpectedly interrupted and the danger of data loss may exist due to the close-down of business or default of the service-supplying company, natural calamities and disasters, and the like. As a result, customers are demanding greater assurances that their SaaS providers can guarantee service availability, security and privacy. Thus, it is necessary to make a plan for protecting the users from the various dangers as mentioned above by active development of the SaaS industry. The escrow agreement enables the SaaS customer to gain access to the SaaS application and significant data if release conditions are met, such as the SaaS service provider going out of business or being acquired by another company that is no longer willing to support the on-demand application. As a similar service to the user-protecting plan, a technology escrow service is provided to escrow the technical materials(the functional, executable, object code, procedural instructions, and all the necessary components to make that application function correctly) of the software-developing company to a reliable third-party entity (escrow agent), which protects technical material and users` data, and also ensures a stable business operation of the software-user. Especially, SaaS escrow service performs continuous real-time back-ups, so users can recover server data at any time, or archive data long-term. The above-mentioned problems have been solved through SaaS escrow service by civil groups in U.S.A., United Kingdom, and so on for 25 years. However, in Korea, the SaaS escrow service has just started, so that the businesses related to the SaaS escrow service are not developed actively by the market. So as to facilitate the development of the SaaS industry, therefore, a so-called `SaaS data protection center` is built by government to protect the SaaS users, so that the source codes of the SaaS service are escrowed and the support systems like real-time update and data backup of the SaaS service provided currently are established. Furthermore, the center is operated by private management after a predetermined time has elapsed, so that the SaaS escrow market is operated by the management of the civil groups and various SaaS escrow services are competitively provided.