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장애인차별금지법상 적극적 조치의 인정과 권리구제 개선방안에 대한 연구
이호근 한국비교노동법학회 2024 노동법논총 Vol.61 No.-
Korea's “Act on the Prevention of Discrimination Against Persons with Disabilities and Remedies for Rights of Persons with Disabilities” (the “Act”) was enacted in 2007 and has been in effect for more than a decade, but the first Supreme Court decision related to affirmative action was only handed down in April 2021. Lower court decisions have been handed down at a steady rate of three to four cases per year, with a relatively high number of cases in the financial and transportation sectors. The Supreme Court first recognized a claim for affirmative action under Article 48(2) of the Disability Discrimination Act in its April 1, 2021, decision, 2018 Da 203418. The issue of ‘discrimination’ against people with disabilities and the challenge of ‘effective improvement measures’ remains an important social issue. The reasons for the absence of affirmative action cases after a considerable period of time have been pointed out as (1) freedom of private autonomy or contract, (2) judicial restraint on the grounds of the separation of powers, and (3) the tendency of continental legal traditions to avoid affirmative action, which originated in the Anglo-American legal system. The Americans with Disabilities Act(ADA) identifies the failure to fulfill the duty of reasonable accommodation as a type of prohibited discriminatory behavior, which is notable because it is not found in the Equal Employment Opportunity Act or the Age Discrimination in Employment Act. As an exception to the principle of monetary damages for torts, affirmative remedies under the ADA are different in that they are aimed at creating a new state of affairs, i.e., providing a reasonable accommodation, rather than restoring an existing state of affairs. These provisions appear to have been influenced by injunctions, which are recognized as a remedy under the Americans with Disabilities Act (ADA). This study examines the significance of recent Supreme Court decisions regarding these affirmative action provisions under the ADA and how to improve the legal system. Furthermore, we will emphasize the need to introduce a mandatory enforcement lawsuit system, which is absent in the Administrative Procedure Act related to anti-discrimination and social security litigation. Mandatory enforcement actions have the nature of forcing administrative agencies to take active actions through court judgments, and their introduction can be a welcome legislative provision in terms of expanding people's rights remedies. Ultimately, the introduction of the Labor and Social Court will provide a specialized judicial remedy for social security rights, which is currently limited to administrative appeals or civil remedies.
이호근 전북대학교 동북아법연구소 2022 동북아법연구 Vol.15 No.3
본 논문은 지역 노동시장 활성화를 위한 지역 사회적 대화 법⋅제도 개선방안에 대한 연구이 다. 본 연구는 국내의 지역노사민정협의회, 지역고용심의회 및 지역인적자원개발위원회 등 고용 ⋅노동⋅인적자원개발 관련 거버넌스의 법⋅제도 현황과 문제점을 분석하고 관련 개선방안을 제시한다. 첫째, 지역 노동시장의 활성화를 위한 ‘가칭’ 「지역 사회적 대화 활성화 및 지원을 위한 법」 제정을 제안한다. 둘째, 새로운 거버넌스는 기존 지역노사민정협의회의 상시적인 정책 협의체(본협의회, 실무협의회, 분과위원회 등)의 ‘회의체 활동’을 우선 지원하고, ‘사업’은 부수적 으로 그를 지원하는 방안으로 지역 고용⋅노동거버넌스 운영방향을 명확히 하여야 한다. 새로 운 지역 고용⋅노동거버넌스는 지역노사민정협의회와 「고용정책 기본법」과 「근로자직업능력 개발법」 등에 각각 그 근거 규정을 두고 있는 현재의 지역고용심의회, 지역인적자원개발위원회 의 통합적 운영을 지향하고, 협의체의 사무국 운영방식을 전면 개편토록 한다. 셋째, 지역 고용 ⋅노동거버넌스의 목적, 법적지위, 역할과 기능을 명확히 하고 법적지위가 정책자문기구로서 ‘지자체장’은 물론 ‘지방의회’에 상시적으로 자문토록 하여야 할 것이다. 지자체장은 사회적 파트 너들에게 참여적 개방행정을 보장하고, 지방의회는 고용⋅노동 부문관련 입법적 지원을 위한 사회적 파트너들의 자문, 보고청취 및 연례보고서를 채택토록 한다. 운영과 관리감독을 지자체 외에 지역 주민대표기구인 지방의회에 두도록 하여 지역 고용⋅노동거버넌스를 실질적으로 활 성화하여야 할 것이다. 넷째, 개편되는 지역 고용⋅노동 정책협의체는 지방행정체계 내에서는 지자체와 지방의회와의 연계를 강화하는 동시에, 수직적으로 위로는 중앙 사회적 대화기구와 지역 사회적 대화기구 간 그리고 아래로는 광역과 기초단위 사회적 대화기구 상호간에 보다 유기적으로 연계되도록 설계되어야 할 것이다. This article is a study on ways to improve local social dialogue laws and systems to vitalize the local labor market. Based on the analysis of the current state of laws and institutions of the ‘local labor-management-civil representatives council’, ‘regional employment council’, and ‘regional skills council’ etc. we propose related improvement plans. First, it is proposed to enact an “Act for Activation and Support of Local Social Dialogue” for vitalization of the local labor market. Second, in the new governance is the existing regional labor-management civil representatives council and its main council, working-level council, subcommittee, etc. as the key ‘meeting body activities’ should be stably supported first, and ‘business’ incidentally supported. To this end, regional employment and labor governance aims at the integrated operation of the current regional labor-management civil representatives council, regional employment council, and regional skills council with the basis for the 「Employment Policy Framework Act」, 「Workers Vocational Competency Development Act」. The local labor-management civil representatives council should be completely reorganized so that the consultative body can operate at least at the level of the current regional skills council and its secretariat. Third, the purpose, legal status, roles and functions of local employment and labor governance should be clarified and, as a policy advisory body with a clear legal status, the results of consultation should be consulted on a regular basis with the local parliament as well as the local government head. The head of the local government guarantees participatory open administration to social partners, and the local parliament operates and manages it through legal support related to the employment and labor sector, as well as consulting, listening to reports and annual reports from social partners on local employment and labor issues. In addition to local governments, supervision should be placed at the local parliament, which is the representative body of local residents, so that local employment and labor governance should be practically revitalized. Fourth, The reorganized regional employment and labor policy body strengthens the link between local governments and local parliament within the local administrative system, and at the same time, vertically between the central social dialogue organization and local social dialogue, and at the bottom, between the regional and basic unit social dialogue organizations. It should be designed to be more organically linked with each other.
자기 자극법에 의한 운동 유발전위의 정상치에 관한 연구
이호근,김국기,임영진,김태성,이봉암,임언 대한신경외과학회 1991 Journal of Korean neurosurgical society Vol.20 No.8
Electrical stimulation has been used for evaluating central motor system and deep portion of peripheral nerve, but it was painful. And then magnetic stimulation was introduced recently and used widely because it was painless and easily repeated, compared to electrical stimulation. This study was undertaken in order to obtain normal values of motor evoked potentials by transcranial magnetic stimulation. Ninety-two volunteers, free of neurological disease, were tested with Medelec Magstim model 200 and Medelec Mistral. There were 55 male and 37 female, ranging in height from 130 to 180 centimeter, with a mean height of 165.9 centimeter, in age from 13 to 70 years, with a mean age of 34 years. Transcranial magnetic stimulation cause contralateral hand and foot muscle responses, and the resultant motor evoked potentials can be recorded. Stimulating sites were near vertex in head. Erb's point in cervical region and L45 interspace in lumbar region. Recording sites were abductor pollicis brevis(APB) in hand and abductor hallucis(AH) in foot. Our results were as follow ; 1) Latency between head and contralateral APB was 20.9±1.5㎳, latency between cervical region and ipsilateral APB was 11.7±1.1㎳, and there-by CMCT was 9.2±1.1㎳ 2) Latency between head and contralateral AH was 39.0±2.6㎳, latency between lumbar region and ipsilateral AH was 20.9±2.1㎳, and there-by CMCT was 18.1±2.0㎳. 3) Latency was statistically well correlated with subject height, but not CMCT. 4) There was no statistical significance, between male and female, right and left side, among age groups, in latency and CMCT. 5) By voluntary muscle contractions, latency was shortened and amplitude was increased on vertex stimulation, but amplitude only was increased on stimulation of cervical region. 6) By increasing stimulus intensity, latency was shortened and amplitude was increased on vertex stimulation, but amplitude only was increased on stimulation of cervical region.