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- 저자 : 韓三寅 (검색결과 85 건)
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韓三寅 濟州大學校 社會發展硏究所 1990 社會發展硏究 Vol.1 No.-
In this paper I compare and analyze the recent trends of theories and judicial precedents of Korea and Japan through the study of documents and precedents of the divorce claim by a guilty spouse. And after my concrete examination of its validity I explain the acceptance or rejection of the divorce claim by a guilty spouse. With relation to the cause of divorce, Korean civil law §840 has the combined form of fault based divorce ground' and 'no-fault based divorce ground'. But not being provided in the regulation, the acception or rejection of the divorce claim must be solved by theories and precedents. The past theories of this problem are divided into 4 kinds. Recently, the divorce claim by a guilty spouse, which has been rejected by Korean Supreme Court, is allowed under exceptional cases in which an innocent spouse wants to divorce. It is desirable that this problem should be solved through the harmony between the idea of 'no-fault based divorce ground' any the protection of an innocent spouse. Therefore, I think that the divorce claim by and part of two spouses should be accepted when the marriage breaks down irretrievably. But when it is against the true nature and morals of marriage and social order, the divorce claim by a guilty spouse must be rejected according to the Begat principles of 'abuse of right'. Finally, the restriction of the divorce claim by a guilty spouse should be relaxed a little more under the new divorce law which includes the rights to demand the division of property and the Visitation of children.
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환경오염으로 인한 손해배상청구에 있어서 인과관계의 입증
한삼인,김상찬 제주대학교 환경연구소 1994 환경연구논문집 : 제주대 Vol.2 No.1
The environmental pollution problem, especially the environmental pollution problem which can be called the by-product of corporate development has proceeded to develop beyond the problem of a private nuisance between individuals simply into the problem of existence throughout our society. Our country abolished the Environmental Protection Law enacted in 1977 under the existing single law doctrine system brought about its fruition through the reoganization and supplementation of environmental legislation by means of the multiple law doctrine, and so came to open up a new chapter in environmental pollution regulation legislation. In a claim for damages from environmental pollution. our majority theory and judicial precedent are dependent on the legal principle of the general unlawful act as the legal principle for its relief. Therefore; the plaintiff, the sufferer from environmental pollution, can come to obtain damages to the environmental pollution only when the plaintiff sternly prove the intention and the negligence of the defendant, the wrongdoer, in an unharmful act, and the causation between the unharmful act and occurrence of the damage. But, there are many cases that the side of the wrongdoer is more favorabl than of the sufferer in economic terms in case of the action for damges from environmental pollution. If the plaintiff, the sufferer from environment pollution, is asked to prove its causation to the same extent as the general unlawful act in this specific case as well. it is likely that the plantiff is forced to accept the conditions offerd by he wrongdoer clue to the plaintiff's inferior osition. Thus there is much difficulty in expectiong the equity and fairness of in the relief of damages from environmental pllution. Therefore, it is neces-sary to alleviate or lighten the burden of proof on the causation of environments pollution in the action for damages from environmental pollution. Accordingly, in accordance with the request that the degree of the proof of the causation on environmental pollution should be lightened and mitigated to protect the sufferer in the act for damages from environmental pollution. several theories have come to the fore. including a prohability theory on the burden of proof on the causation of environmental pollution. Therefore, this study aimed to provided an inquiry into the evolution of our judicial recedents and types of all the theories that have a made an attempt to lighten and miti-gate the burden of proof on the causation of environmental pollution.
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