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).

웹사이트에서 개인정보 침해와 구제 -미국,독일,일본의 법제를 중심으로

정진명 ( Jin Myung Chung ) 단국대학교법학연구소 2009 법학논총 Vol.33 No.2

As information technology has developed rapidly, the effectiveness and convenience of the works has been increased through an E-commerce and On-line service in public and private part. On the contrary, the users of the internet service are afraid of the infringement of individual rights and obligation, since there has been increased number of problems of the misuse or abuse of personal information related to individual personality. Because the personal information has been handled so rapidly through the incredible speed in interne and has been accessed to internet in a long distance. The misuse or abuse of personal information has been brought into unrecoverable damage to its user`s reputation. In reality, in the world of internet, the personal information that one doesn`t want to let know to the general public has been distributed unlawful, and flowed out massively. Thus many nations have focused on how to use or control personal information and how much discretion should they allow the authority to handle personal information. In this paper, the principal on the protection of information and remedy that has been regulated in the special code and the general principal on the protection of information and remedy in comparative to the legislation in USA, Germany and Japan were researched.

한-미 FTA의 세이프가드규정 분석

손기윤 ( Ki Youn Sohn ) 단국대학교법학연구소 2009 법학논총 Vol.33 No.2

We analyze the Korea-US FTA`s safeguard provisions in comparison with the WTO Agreement on Safeguards and WTO safeguard disputes. Concerning the bilateral safeguard measures, we analyze conditions for their application, types of the measures, their scope and application period, provisional measures, and compensation. In addition, we analyze the global safeguard provisons, primarily the WTO-consistency of the conditions under which the imports from other Party may be excluded from a Party`s application of the global safeguard measures. Finally, we make suggestions with a view to improving implementation of the safeguard provisions.

가족법의 주요 개정방향에 대한 소고

임정평 단국대학교부설법학연구소 2001 법학논총 Vol.25 No.-

취업규칙 불이익변경에 있어 사회통념상 합리성

하갑래 ( Gap Rae Ha ) 단국대학교법학연구소 2009 법학논총 Vol.33 No.2

An obstacle to overcome for the rules of employment (ROE) to be accepted as having regulatory effect is employers` unilateral decision for their convenience sake. That is the ground for the Labor Standards Act(LSA) to ensure participation of workers in changing the ROE. Nevertheless, in order not to overuse `participation of workers` the LSA states that accordance of workers must be sought out in changing the ROE to disadvantage to employees, but only their opinions rather than the accordance be received in other cases. Within such legal framework, socially accepted rationale has been provided by court rulings as criteria to decide on the effects of the ROE. In applying the criteria, according to the case laws, the basis for the rulings is moving to `whether to accord or not` from `whether it is a disadvantageous change or not.` This shift has the great meaning in two ways. First, the scope of socially accepted rationale is being broadened so that the changes of the ROE will not become an obstacle to business management or labor management. This trend may result in weakening of ROE`s regulatory effect. Especially under this low unionization rate, losing the regulatory function of the ROE may cause the system of the labor laws regulating collectively individual labor and management relations to break down. For employers, it may be beneficial to them for the short term since they can expand their initiative in deciding labor conditions, but for the long term they may be excluded from the fact that they may introduce the new collective system to decide labor conditions such as the business management consultation committee of Germany. Second, the recent case laws note the socially accepted rationale enough to waive from the accordance of employees in deciding on the effects of the changed ROE. This may be interpreted as the signs of changes in two-fold system of assessing on `whether to change disadvantageously` and `whether to accord.` Given that employees naturally must decide on `disadvantageous change` and conflicts due to overlapped decision can be reduced, it is desirable that accordance of employees will be the basis to decide on the effects of changed ROE. Interpretation of laws has some limits in resolving the issues arising from the current legal system where the effects of changed ROE will be decided under the overlapped legal structure in accordance with the socially accepted rationale. Thus the legislation needs to be provided to complement the case laws. The criteria for the socially accepted rationale the case laws have accumulated needs to be reflected in the legislation through correcting limitations and problems.

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.

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.-

외국판결의 승인·집행에 관한 고구

김태륜 단국대학교부설법학연구소 1995 법학논총 Vol.21 No.1

계엄법에 관한 연구 -일제의 계엄령과 건국 초기의 계엄법

백윤철 ( Yun Chul Baek ) 단국대학교법학연구소 2009 법학논총 Vol.33 No.1

Material Law a nation`s emergency competence has worked out as a means in history to maintain national peace and social order. Such function and values are still valid nowadays, and the basic aim of the law is not defaced. However, there is also a problem that the material law in force now does not reflect the current times. It has been more than 20years since the law was revised. Since the realistic situation has changed so much all the while, it is necessary to revise the law reflecting the real world, wether the system is used frequently or not. Further, articles concerning the material law have many problems within, in the relationship with basic human rights. Constitution in Force now states the material law in article 77. Material law is stated with two categories of extraordinary and precautionary material law. The material law in force now is stated based on constitution. It has been revised 4 times. But the law in force now still has many problems. First, the condition to proclaim the material law is not certain. Second, the president must get consent from the assembly after the proclamation of material law, but it`s more effective to get prior consent to control material law. Lastly, the law has possibility to impose excessive restriction on people`s fundamental rights. Therefore, the law has to be revised to resolve those problems.