컴퓨터 법에 있어서의 책임에 관한 연구

鄭鎭世,鄭在晃,方碩皓,河泰勳,李成德,崔鳳哲 홍익대학교 1995 弘大論叢 Vol.27 No.-

This paper, coauthored by Chin-Se Chung, as well as other 5 faculty members at Hong-Ik University Department of Law (Jea-Hwang Jeong, Suk-Ho Bang, Tae-Hoon Ha, Seong-Deog Yi and Bong-Chul Choi), deals with liability issuses surrounding constitutional law, administrative law, civil law (contracts, torts), commercial law, criminal law, international law and philosophy & law. Professor of Law Jea-Hwang Jeong makes a comparative analysis of privacy protection and disclosure of information legal issues, appeared at current Korean law and draft of law in case of the latter one. He suggestes some desirable ways of legislation through revision process and operation of legal rules at his paper. Professor of Law Suk-Ho Bang makes a brief survey of civil liability issues arising out of contracts and torts in English and American law, first. He tries to show that many Parts of arguments in such legal world are attributed to Statute of Frauds tradition, unique to such legal world. New developments in the area of torts, including computer malpractice and computer virus, are shown and analysed in terms of application possibility under our current law. But, as even the Anglo-American courts are found very reluctant to accept those arguments as new grounds for torts liability, it seems more plausible and practicable to refer to contractual approach, basically, rather than to torts approach even under English American law. Professor of Law Chin-Se Chung suggests in his paper on EFT that the allocation of liability under EFT be made under the new and most relevant principle, working for useful transmission way of fund, not solely under traditional legal principles. If such new principle works with high return of risk to users, it makes imminent problems against the goats of consumer protection, and eventually will be hardly refered to. Conversely, if it requires too much sacrifice from the side of banks, then the convenience in such system will not be utilized. So, it may be natural that EFT be discarded even without proper functioning under market system. In conclusion, Professor Chung points out that, only when banks fond that the economy out of cost-saving at tasks outweighs the risk undertaken by the banks, the banks will operate the system. But, if this system makes more return of benefits to the banks with the burden of users, it is against the idea of equity. Consequently, the banks should bear the aggeviated risks in return for the cost saved under this system Professor of Law Tae-Hoon Ha focuses his research paper on criminal liability under EFT. He draws his conclusion out of current criminal statutes that illegal fund transfer under automatic teller machines, cash cards and information system can not be penalized due to lack of proper statutory provision. So, the criminal provision on computer crime, newly made on December of 1995, can be positively appreciated. But, he anticipates that the question whether such new provision will be successful in regulating all illegal activites at fund transfor system without any operation defects in criminal code, or will cause new problem in interpretation of criminal code remains unsolved. Professor of Law Seong-Deog Yi examines the international legal issues which may be given rise to by direct satellite broadcasting. In his paper, the issue of national jurisdiction in relation to direct satellite broadcasting is firstly dealt with. Secondly, the possible ways in which direct satellite broadcasting is regulated by international law are examined with special emphasis of two different approaches, that is, freedom of information approach and state sovereignty approach. In this context, many international conventions concerning direct satellite broadcasting in Particular, and international regulatory regime of outer space in general are broadly reviewed. Thirdly, the types of activities which may be a violation of international legal regime of direct satellite broadcasting are suggested and the possible lethal remedies for these violations are proposed with the traditional international state responsibility law in mind. Professor of Law Bong-Chul Choi explores the relations of computerized society to its laws throughout his paper as a kind of conclusion of this whole paper. Computerized society is one that the technical, scientific, informational knowledge prevails. With correspondence to the structural change in knowledge, the law of such a society has suffered transformation, and the knowledge and techniques distributing and computing legal responsibility has also changed. However, he does not insist that the diffusion of technical knowledge is the sole factor of the transformation of legal responsibility. It is only one of the various factors. Moreover, he does not deny the continuation between the classical techniques distributing legal responsibility and the contemporary ones. In this era, the law realizes fairness and community values at the expense of singularities. In addition, he proposes that legal scholars take the diagnosis of law from the perspective of the technology/knowledge shifts seriously.

환경문제에 대한 전통국제법이론의 적용한계 : 책임에서 규제로

李成德 홍익대학교 1996 弘大論叢 Vol.28 No.-

This paper examines the limits of applicability of the State responsibility theory on environmental issues. Under international law, environmental issues have been dealt with from the perspective of the State responsibility theory, when environmental damages occurred. But this approach has many shortcomings. Thus, it is disirable to think of another method to secure the protection of the environment. My argument is that compensations after envirnmental damages occurred, is inappropriate because it is not only difficult but also insufficient to claim the international state responsibility in case of environmental damage cases, due to the facts that, first of all, it is not easy to prove that losses have been incurred through a specific environmental accident and secondly, even if compensation could be awarded, it would not cure the result of environmental damages perfectly. Therefore, if we presuppose that the World environment should be preserved in a reasonably good condition in order for contemporary and future generations to enjoy a good environment, international law should find out another method to preserve our environment. The method, I propose, is the regulatory system which can be accomplished through international cooperation between States. This regulatory system can be established through the treaty-based system. Under this main perception, in part II of this paper, the applicability and its limit of the State responsibility theory in environmental issues were first dealt with. They include the development of the State responsibility theory in conjunction with environmental issues and the subject relating to international liability for injurious consequences arising out of acts not prohibited by international law. In part III, the proventive regulatory system for environmental protection is considered. In this regard, the philosophical foundations -shared resources concept and the common concern of mankind- for the preventive environmental protection are first discussed. And, many practical tools -ranging from notification to environmenatal impact assessment- for preventing environmental damages, which are provided in the major environmental treaties, are reviewed.

핵무기 위협 또는 사용의 적법성에 관한 국제사법재판소 권고적 의견에 대한 비판적 검토

李成德 홍익대학교 법학연구소 2000 법학연구 Vol.2 No.-

This paper reviews the legality of threat or use of nuclear weapons based on the two advisory opinions made by the International Court of Justice (ICJ) in 1996. The first one which was requested by the World Health Organization(WHO), was rejected by the ICJ on the ground that the request for an advisory opinion was submitted by an organ which had not the competence to do so. And the other was requested by the U.N. General Assembly. In the face of the request for an advisory opinion by the U.N. General Assembly, the ICJ answered in its operative parts of the advisory opinion that: (2) A: There is in neither customary nor conventional international law any specific authorization of the threat or use of nuclear weapons. (2) B: There is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such. (2) C: A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4, of the United Nations Charter and that fails to meet all the requirements of Article 51, is unlawful. (2) D: A threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict, and in particular those of the principles and rules of international humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons. (2) E: It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law; However, in view of the current state of international law, and of the elements of facts at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful of unlawful in an exterme circumstance of self -defence, in which the very survival of a State would be at stake. (2) F: There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control. To me, the opinions expressed in (2) A, B, C, D, F are correct but it is dubious whether the opinion expressed in (2) E is right, I think that the ICJ could have investigated more factual aspects related to the threat or use of nuclear weapons and then it could have reached a more decisive and clear-cut conclusion.

유럽공동체법상 회원국에서의 유럽공동체법 이행확보제도에 관한 연구

이성덕 弘益大學校 法學硏究所 2005 법학연구 Vol.7 No.-

This paper examines the judicial system for enforcing the European Community legal order. The Community legal order consists of the Treaty establishing European Community (hereinafter the Treaty), the Community treaties, the mixed agreements and the acts of the Community institutions. In particular, according to Article 249 of the Treaty, the acts of the Community institutions can be classified into four categories, i.e. regulation, directive, decision, and recommendation and opinion. In this paper, the effects and legislative procedure for these acts are briefly reviewed. And then, the judicial system to enforce these Community acts are examined. The judicial system which was examined is the enforcement action, the action for failure to act, the direct annulment action and the preliminary reference procedure. In sum, the best method to enforce the Community law is to allow the vigilant individuals to watch out whether the Community law is observed by the addressee of the relevant Community law. The enforcement action and the action for failure to act are available only to the limited category and the requirements to use these procedure are quite cumbersome to fulfil. And the direct annulment action is in a way very effective to enforce the Community law. But it has weak points in allowing individuals to use this procedure. Only very limited category of individuals may institute legal proceedings under this procedure. The most effective way to enforce the Community law, I suggest, is to use the preliminary reference procedure. Under this procedure, if individuals bring an action before a national court based on the Community law, then the national court may or shall refer the Community law matter to the European Court of Justice(ECJ) for a ruling. In the ruling, the ECJ can affirm the contents of the Community law, that in turn contribute to enforce the Community law.

Pilocarpine 및 Atropine이 토끼의 악하선 혈류랑에 미치는 영향에 관한 연구

이종율,손성희,이종흔 대한치과페리오학회 1975 大韓齒周學會誌 Vol.5 No.1

유통경로 구성원의 기회주의와 그 원인과 효과에 관한 연구 : 거래비용이론의 관점 From the Transaction Cost Perspective

이성근 한국로지스틱스학회 1998 로지스틱스연구 Vol.6 No.2

이 연구는 기회주의의 관점을 거래주체가 아닌 거래상대방의 측면에서 분석한 것이다. 선행연구들은 기회주의를 당연한 것으로 받아들이고, 거래특유자산이나, 거래의 빈도, 경쟁자의 수, 환경적 불확실성, 성과의 측정가능성 등과 같은 변수들이 거래의 내부화에 영향을 준다고 하였다. 그러나 이 연구는 인간의 기본속성이라고 할 수 있는 기회주의가 언급한 여러 변수들과 반드시 +의 관계를 가지고 있는 것은 아니며, 나아가 거래상대방의 기회주의에 대한 거래주체의 인식이 왜곡될 가능성이 있다는 것을 보여준다. 연구결과, 거래상대들은 이익에 매우 민감한 반응을 보여 기회주의적인 행동을 하나 거래특유자산은 오히려 기회주의를 억제하는 역할을 한다. 그러므로 거래주체들은 유통전략에 있어서 비용이 많이 투자되는 내부화전략을 취하는 것보다는 거래상대들의 적정이익 실현에 관심을 가져야 할 것이다. This study is on the antecedent variables of opportunism from the transaction cost perspective. Traditionally, the studies on the transaction cost theory has applied original concepts to the marketing channel analysis. But This study analyzed the relationships between the opportunism and its antecedent variables like specific asset, number of transaction, number of competitors, environmental uncertainty from view points of the transaction partner not the subjects based on the Yi(1993) former study. The findings are some contradictory to the former study in the relationship between specific asset and opportunism. The reason why the results is contradictory to the former study is guessed on account of the difference of perception on the opportunism. For example, specific asset can increase the credibility to the transaction subject from the transaction partner. But transaction subject tends to overestimate the opportunism of the transaction partner on account of the specific assets.

유압관로내의 동특성을 이용한 비정상 유량계측에 관한 연구

이홍구,윤석주,박성규,박길문 朝鮮大學校 機械技術硏究所 1998 機械技術硏究 Vol.1 No.1

This paper describes an approach for estimating the unsteady flowrate through a hydraulic pipe lines and a components in real time. Concerning the dynamic characteristics of a hydraulic pipe lines, experimental research from the view point of focusing on the unsteady flowrate through a pipe is insufficient because of the lack of adequate flowmeters. In this experiment, a new instantaneous flowrate measurement system making use of a sharp-edged cylindrical choke and LDV has been proposed and developed by the authors. The unsteady flowrate is obtained from the measurements center-line velocity of a circular pipe using LDV and the pressure difference using a sharp-edged cylindrical choke, and experiments on the frequency characteristics are carried out. The results show a good agreement between the estimated and directly measured flowrate waveforms illustrates the validity of the method proposed here.

유럽인권협약상의 인권구제절차

李成德 國際人權法學會 1998 國際人權法 Vol.2 No.-

영사보호와 LaGrand 사건

이성덕 홍익대학교 법학연구소 2001 법학연구 Vol.3 No.-

This paper reviews the international legal issues raised in the LaGrand case. In the case, Germay requests the ICJ to adjudge and declare: 1. that the U.S., by not informing the LaGrand brothers without delay of their rights under Article 36 (1)(b)of the Vienna Convention on Consular Relations, and by depriving Germany of the possibility of rendering consular assistance, violated its international legal obligation to Germany, in its own rights and in its right of diplomatic protection of its nationals, under Article 36 (1); 2. that the U.S., by applying rules of its domestic law, in particular the doctrine of procedural default, violated its international obligation to Germany under Article 36(2); 3. that the U.S., by failing to take all measures at its disposal to ensure that Walter LaGrand was not executed, violated its international legal obligation to comply with the Order on Provisional Measures issued by the ICJ on 3 March 1999; and consequently, 4. that the U.S. shall provide Germany a guarantee that it will not repeat its illegal acts and ensure that the U.S. domestic law and practice will not constitute a bar to the effective exercise of the rights under Article 36. Despite the U.S. arguments against the German claims, the ICJ accepted all the claims made by the Germany. In the case, it is notable that the ICJ, for the first time, formally ruled that the order of provisional measures was binding. The ICJ also affirmed that if the terms of a treaty are clear enough, the treaty may create individual rights which shall be protected by the parties to the treaty. In this regards, the ICJ held that Article 36(1)(b)created the rights both of the State and of the individuals. Finally, the ICJ recognized that the guarantees and assurances of non-repetition could be an effective remedy for international wrongful acts committed by States.

사례를 통하여 본 인도적 간섭 : 국제법적 적법성 Its International Legality

이성덕 홍익대학교 법학연구소 2003 법학연구 Vol.5 No.-

One of the hot issues in international law is whether the unilateral humanitarian intervention is lawful or not. There are many cases which are alleged to be the humanitarian intervention. And some argue that it is lawful under the international law. In this paper, we reviewed the backgrounds of cases which are argued to be the humanitarian intervention. Almost all of the cases reviewed have not only humanitarian but also other political and social elements. And also, it is found that the concept of the humanitarian intervention varied. That means that the humanitarian intervention has been invoked to justify certain purposes which are not defined consistently and objectively. If a legal principle is to be accepted as a binding rule, it does have to have objective criteria to be applied. But up to now, we do not find out the objective criteria which may be applied in the case of humanitarian Intervention. Thus, the humanitarian intervention, although it does have a moral imperative, may be abused to justify other political objectives. For the time being, it could be much safer to regard the unilateral humanitarian intervention as illegal under the international law. By doing so, it would be possible to restrict the use of force in the international community.