Korean Courts Research Articles

The legality and appropriateness of keeping Korean Medical Licensing Examination items confidential: a comparative analysis and review of court rulings.

This study examines the legality and appropriateness of keeping the multiple-choice question items of the Korean Medical Licensing Examination (KMLE) confidential. Through an analysis of cases from the United States, Canada, and Australia, where medical licensing exams are conducted using item banks and computer-based testing, we found that exam items are kept confidential to ensure fairness and prevent cheating. In Korea, the Korea Health Personnel Licensing Examination Institute (KHPLEI) has been disclosing KMLE questions despite concerns over exam integrity. Korean courts have consistently ruled that multiple-choice question items prepared by public institutions are non-public information under Article 9(1)(v) of the Korea Official Information Disclosure Act (KOIDA), which exempts disclosure if it significantly hinders the fairness of exams or research and development. The Constitutional Court of Korea has upheld this provision. Given the time and cost involved in developing high-quality items and the need to accurately assess examinees' abilities, there are compelling reasons to keep KMLE items confidential. As a public institution responsible for selecting qualified medical practitioners, KHPLEI should establish its disclosure policy based on a balanced assessment of public interest, without influence from specific groups. We conclude that KMLE questions qualify as non-public information under KOIDA, and KHPLEI may choose to maintain their confidentiality to ensure exam fairness and efficiency.

Injured and Ashamed: The Limitation of the Expanded Coercion-Based Rape Model in South Korea

Rape is a form of gender-based violence in which the line between coercion and consent is frequently blurred or contested. What happens when a court system broadens its definition of rape to include a broader range of coercive and potentially nonconsensual behaviors? In recent decades, South Korean courts have shifted the scope of coercion required for rape convictions, expanding from direct to indirect force to cover a broader range of rape cases. In this article, I investigate what has and has not changed with the expanded definition of coercion, through quantitative and qualitative analysis of 872 South Korean court decisions between 2013 and 2020. The analysis demonstrates that, despite a broader definition of coercion, the coercion-based rape model reinforces gender hierarchy by depicting the victim as the one who is supposed to be severely injured and ashamed in order to be believed. This study contributes to a better understanding of what we lose when femininity is defined by vulnerability, and it also engages the global debate over coercion-based versus consent-based legal models for rape adjudications.

강간 피해자의 원하지 않은 임신도 상해인가?

Recently, in the Supreme Court of Korea, there has been controversy over whether the victim's pregnancy is bodily injury in the case where the defendant, a stepfather, sexually assaulted an 11-year-old stepdaughter to become pregnant, and in the case where the defendant sexually assaulted a friend of his wife who was asleep under the influence of alcohol at his home. The prosecutor regarded the undesired pregnancy as bodily injury and prosecuted the defendant for aggravated-rape and aggravated-quasi-rape in these cases, but the Supreme Court of Korea admitted only rape and quasi-rape because the undesired pregnancy did not constitute bodily injury. Some scholars argue that pregnancy due to rape should be considered bodily injury, but discussions in Korea are still insufficient. Even in the context of US precedents, the question of whether a rape victim's pregnancy constitutes substantial bodily injury has arisen in numerous statutory rape cases, including a case in which a stepfather sexually assaulted a 13-year-old stepdaughter for months, leading to pregnancy, and then aborted. The pregnancy of a rape victim negatively affects the victim's physical and mental aspects. Therefore, it is argued that the physical and mental effects of pregnancy are the same as substantial bodily injury, and that the pregnancy of rape victims should be recognized as a factor that increases the punishment of rape. However, US precedents and legislation have different positions on whether to view physical changes caused by the pregnancy of rape victims as elements of aggravated punishment. Korean courts have not yet recognized the unwanted pregnancy of rape victims as bodily injury. However, in the United States, legal precedents sometimes consider the pregnancy of rape victims as bodily injury, and individual state legislations also recognize this. This paper compared and examined related precedents and legislation in Korea and the United States, and studied the question of whether to view the unwanted pregnancy of rape victims as bodily injury. In conclusion, the author of this paper argues in favor of interpretive and legislative theories that advocate for viewing the pregnancy of rape victims as bodily injury.

Российская судебная власть и иностранные подданные, выходцы из приграничных восточноазиатских государств на Дальнем Востоке Российской империи (конец XIX начало – XX в.)

The article is devoted to the peculiarities of the implementation of Russian justice in respect of Chinese and Korean subjects in the Amur and Primorsky regions of the Russian state. It considers the solution of the issue of extraterritoriality of the Chinese subjects, the attempt of the local administration to establish control and gain sustainable influence over the traditional Chinese and Korean courts in, as well as the solution of the problem of jurisdiction of the Russian magistrate court over cases involving Chinese subjects living in the Zazeisky district of Amur region.

우리 저작권법상 공정이용의 운영 현황과 과제

In 2011, the fair use provision was introduced in Korean copyright law. While it has been reformed once to make it more effective, and efforts have been made to establish so-called fair use guidelines to increse its predictability, doubts are raised as to whether fair use functions as a practical standard in actual copyright cases. It is time to point out its status quo and to observe how fair use has been operated by the Korean judiciary; this new legal instrument is intended to actively pursue a balance between the interests of creators and users/the public. Moreover, fair use may be understood as the legislator's delegation to the judiciary for exercising the quasi-legislative authority to create new and necessary copyright limitations/exceptions on a case-by-case basis. For an overview, it is indispensable to analyze the relevant precedents produced by various courts in Korea in the past 11 years. Unfortunately, there have been no cases in which the Supreme Court of Korea actively reviewed fair use. Nevertheless, district and high courts produced several decisions and judgments dealing with fair use (some of them gave considerable detail to insightful investigations in fair use). By finding commonalities and trends in these limited precedents and examining their problems, it is possible to determine and suggest what improvements fair use needs and how this relatively new and unfamiliar provision can be developed in the context of Korean copyright law. With this goal in mind, this paper analyzes the fair use-related precedents over the past 11 years in which fair use is reviewed or -at least- mentioned (see the collected cases in Appendix). Above all, it closely examines the attitude (modes of interpretation/ application) taken by the Korean courts on fair use and evaluates whether and to what extent fair use has been actively applied by the courts. Based on this analysis and evaluation, the problems of the current Korean fair use face are pointed out from various aspects. Finally, this paper proposes some ways for a sustainable fair use in our copyright environment, and suggests cooperation and respect between the judiciary and academia.

Opening Pandora’s Box: Comparing Airline Passenger Protection in Korea and Europe in Light of Global Treaties

Passenger protection will continue to ask for attention. The involved bodies and persons include policymakers and legislators, media, courts, compliance departments of airlines, law firms, consumer protection organizations, and airports. All parties must announce the conditions for such protection on their premises. In 2020, around 50% of all cases in the Netherlands, around 4,000 to 5,000 claims submitted to the lower courts, concerned passenger protection in aviation. In the Republic of Korea (Korea), these numbers are more limited but still significant; that is, around 2,500 claims form the aggregate number presented to Korean courts and Korea’s Consumer Protection Agency. The complexity of these cases is caused by the differentiated conditions under which protection measures are expected by and provided to passengers in conjunction with the various legal layers under which remedies must be afforded to them. Such layers concern global treaties; regional and domestic regulations; and conditions of carriage drawn up by the International Air Transport Association (IATA) and implemented by member airlines. Last but not least, all of these legal tools have been explained by courts in all parts of the world with differing interpretations of these rules. For these reasons, this Article is entitled “Opening Pandora’s Box.” Lifting the ceiling of this box—which contains conditions, rules, remedies, and court decisions—reveals sources of great and unexpected troubles. We have made an attempt to open that box in this Article. The continued magnitude of claims presented to Korean courts and the Consumer Protection Agency calls for a fresh light to be cast on this subject. This Article will examine the legal situation surrounding these issues by exploring the law in the following aspects. Part I of this Article will discuss the global umbrella regulations governing passenger protection. Parts II and III explore zealous Korean initiatives in passenger protection and the long and winding road in the European Union (EU). Part IV presents concluding remarks. We conclude that the passenger protection regimes in Korea and the EU are among the most developed in the world. The Korean model is more detailed and specific than its European counterpart; however, passenger rights are more vigorously enforced by courts and other bodies in the EU States. Moreover, we analyze the compatibility between decisions made by the Court of Justice of the EU (CJEU) and global regulations pertaining to airline liability.

‘사회질서’라는 불확정 개념에 대한 법률해석

In this article, I looked at several Korean Courts’Cases that interpreted the‘Social order Conception’ in various fields of law. I analyzed how‘Social order Conception' was interpreted in the fields of Civil law, Corporate tax law, and Criminal law. The relevance was also investigated. Even in different areas of law, interpretations in each area of ​​law must be harmonized. In particular, the interpretation of the Amorphous Concept can have normative power only when it can give predictability to the offender. Therefore, in a judgment to change the interpretation of the Amorphous Concept the rationale underlying the decision should be provided abundantly. In interpreting the‘Social order Conception', precedents consider the Legal emotion and the Socially Accepted Idea as the standard. The Legal emotion and the Socially Accepted Idea can be derived from existing precedents or legislative circumstances. On the other hand, there are cases where legislation cannot keep up with social phenomena. In this case, the judge actively resolves the legal dispute through the interpretation of the law. In particular, the responsibility is often given to judges in understanding the accelerating social and scientific development in the era of the 4th industrial revolution and related disputes. The accumulated interpretation of the law by judges is sometimes linked to legislation. A persuasive good judgment cannot be drawn only by the ability of individual judges. A good judgment is possible when lawyers and prosecutors involved in the trial process provide in-depth and sufficient arguments for facts and legal arguments and various issues. For a persuasive interpretation of the Amorphous Concept, a democratic and participatory trial can be the answer.

현행법상 혐오표현에 대한 사법적 대응

Despite the seriousness of hate speech, which is pervasive in our culture, specific administrative and legislative measures to regulate hate speech have not yet been adopted, and there is no national agreement in our nation. Fortunately, a variety of sectors, including academics, politics, the media, and civic organizations, have started to raise awareness of the problem of hate speech along with issues relating to freedom of expression, and societal efforts to address problems brought on by hate speech have been ongoing. However, there are still no organized, effective measures in place, and the process of enacting the necessary laws and regulations is moving slowly. Despite the fact that Korean society has actively participated in regulatory discourses on hate speech issues that have recently gained widespread attention. If Korean courts continue to take a non-interventionist stance toward hate speech due to a lack of legal grounds, it may appear that they tolerate it unchallenged. As a response, the Korean courts should accumulate judgments that alarm the harmfulness of hate speech within the existing legal system until a legislative basis is established. This will help to protect minority rights and interests from harm that hate speech causes to minority groups' rights and interests, such as discrimination and exclusion. Currently, instances involving hate speech are handled by Korean courts in fragmented approaches, including by criminalizing insult (or defamation) crimes, awarding damages for unlawful acts under civil law, examining the validity of administrative dispositions, etc. This study intends to offer the Korean courts judicial criteria that might be used in cases involving hate speech.

Enforcement of Arbitral Awards in South Korea

Not only is South Korea an economic powerhouse, but it is also a pro-arbitration and pro-enforcement jurisdiction. This article examines the enforcement framework of both domestic and foreign arbitral awards in South Korea, considering the latest amendments to the Korean Arbitration Act (KAA). In doing so, the authors argue that South Korea is a sophisticated jurisdiction for arbitration and its regime for enforcement is consistent with leading Model Law jurisdictions in the Asia-Pacific region. Most notably, enforcement proceedings in South Korea follow an expeditious ‘decision to enforce’ process, akin to a common law summary judgment type procedure and South Korean courts only require the bare minimum documents to be submitted as proof. Furthermore, South Korean courts take an internationalist and narrow approach to the defences to enforcement, requiring a serious breach or impact on due process before granting refusal. The pro-arbitration nature of South Korea is particularly noticeable in the context of arbitrability and public policy. Competition and intellectual property matters are now both likely arbitrable in South Korea, and South Korean courts maintain a high threshold for refusing to enforce awards under the public policy ground. Arbitration, enforcing arbitral awards, South Korea, Korean Arbitration Act

국제재판관할에 관한 국제사법 개정 - 전체 개관

The work introducing the detailed rules of international adjudicatory jurisdiction (“jurisdictional rules”) by amending the 2001 Private International Law Act of Korea (“Former PILA”) finally came to fruition; the Private International Law Amendment Act was promulgated on January 4, 2022, and the amended Private International Law Act of Korea (“New PILA”) entered into force on July 5, 2022. The Former PILA had only three articles on jurisdictional rules, i.e., Article 2 (declaring the general principles of international jurisdiction) and Articles 27 and 28 (establishing the protective jurisdictional rules to protect consumers and employees, the socio-economically weaker parties). There are now thirty-six articles on jurisdictional rules. The general part is set forth in Chapter 1, Section 2 of the New PILA, and special parts are set forth for various legal relations in the first section of each chapter of the New PILA, most of which are rules on special jurisdiction. As its general part, the New PILA includes general principles of international jurisdiction and jurisdictional rules on general jurisdiction, place of office (business office) and business activities, location of property, related cases and counterclaims, jurisdiction agreements, jurisdiction based upon appearance, exclusive jurisdiction, lis pendens, non-exercise of international jurisdiction, exclusion of application, jurisdiction on preservation orders and non-contentious matters. As its special parts, each chapter of the New PILA includes jurisdictional rules on persons (Chapter 2), intellectual property rights (Chapter 5), claims (Chapter 6), family matters (Chapter 7), inheritance (Chapter 8), bills of exchange, promissory notes and checks (Chapter 9) and maritime commerce (Chapter 10).
 By stipulating, for the first time in Korea’s history, the jurisdictional rules in the New PILA, the international jurisdiction law of Korea entered a new era. On the one hand, the New PILA secures legal certainty and enhances predictability of the courts and the parties by specifying the detailed jurisdictional rules. On the other hand, jurisdictional justice is guaranteed in individual cases through the principle of lis pendens and non-exercise of international jurisdiction under exceptional circumstances (the latter is an improvement of the special circumstances theory of the Supreme Court precedents and was influenced by the doctrine of forum non conveniens of the common law jurisdicitons) by giving certain limited discretion to the courts. If the New PILA is to be successful, the Korean courts must correctly understand the gist of the jurisdictional rules of the New PILA and use their discretion appropriately in order to achieve the purpose of the New PILA. The author looks forward to a collection of excellent Korean courts precedents faithful to the New PILA in the future. The structure of the New PILA is noteworthy in that the jurisdictional rules and the choice of law rules, in each chapter, stand side by side like two wings, while putting the detailed detailed jurisdictional rules in the New PILA. Korea’s transition to a two-wing system, from the Former PILA which, like Germany, only contained choice of law rules, is noteworthy not only from the Korean point of view, but also from a comparative private international law perspective. An important reason for the transition is that the jurisdictional rules and the choice of law rules are closely related, and the decision to transit was influenced by the attitudes of the common law jurisdicitons, the Swiss Private International Law Act, and the Hague Conference on Private International Law, all of which have a broad understanding of private international law not limited to choice of law rules.

재현생산권에 관한 관세법의 한계성과 개선방안

Purpose : The purpose of this article is to identify the problems with the standards for reproductive rights under the current customs law and to present opinions on the current legal improvement required in the digital trade era. Research design, data, methodology : This study examined the regulations on additional factors in determining the customs value under the current Customs Act and confirmed the problem of reproductive rights under the current Customs Act through recent precedents. Results : As can be seen from the recent precedents of Korean courts on commercial broadcasting after duplication, the completely opposite position of the Supreme Court and the High Court in interpretation regarding the right to reproduce is insufficient for the judgment of the right to reproduce under the Customs Act in light of the current increase in digital transactions. Conclusions : In order to create a sound and sincere tax payment climate and to realize fair customs administration, this study proposes an opinion on the application of exceptions to the import declaration subject and the expansion of the provisional price declaration system with respect to the establishment of clear standards for reproduction rights and the imposition of additional factors such as royalties.

Comparative analysis of the impact of piracy on International Trade in Korea, Indonesia and Nigeria

ABSTRACT International trade is crucial to the economic development of states and shipping is pivotal in this transaction. The efficiency of international trade requires secured sea lanes for vessels conveying cargo to traverse from one country to another. These activities are particularly significant to the economies of riparian states. However, piracy adversely implicates these activities. This paper uses a comparative methodology to analyse international trade and piracy in Korea, Indonesia and Nigeria, and argues that though these countries have criminalized piracy, Korea has effectively implemented its antipiracy legislation in the prosecution of pirates in Korean courts. Moreover, unlike Indonesia and Nigeria, Korea has, inter alia, regularly strengthened its piracy institutional regime and entrenched democracy in its governance. Thus, unlike Indonesia and Nigeria, piracy affects Korea through attacks on Korea vessels on international sea lanes, Korean seafarers in foreign-owned vessels and Korean-bound vessels. The paper, therefore, suggests that Indonesia and Nigeria should adopt Korea’s counterpiracy initiatives to curb the spate of piratical attacks off the Indonesian and Nigerian waters.

영국법상 정기용선계약에서의 반선과 잔존유 반환채권에 관한 고찰 -대법원 2019.12.27. 선고 2019다218462 판결 평석-

This case is one of several types of legal claims that occurred due to the bankruptcy of H Shipping, which had a major impact on the shipping industry in South Korea. Among them, there are various issues such as the determination of the governing law for the claim for damages in relation to the termination of the contract due to the commencement of the rehabilitation procedure in time charters, the issue of the claim for the return of residual oil at the time of redemption in time charters, and the issue of the application of off-set under English law. Among the main issues related to this, we will look at the problem of the residual oil return bond according to the time charters’ forms. In the case where the governing law is designated as the English law of a foreign law, it is expected that the issue of off-set will be reviewed. First of all, there are many differences between the use of the NYPE 1946 and 1993 forms and the use of the NYPE 2015 forms. When using the former forms, it is necessary to supplement the ‘rider clause’. Especially, it is necessary to recognize that the residual oil return bond due to the termination of the time charter contract, which is the core of this case, is excluded from the NYPE 1946 form, but is included in the NYPE 2015 form. Next, there is the issue of off-set the termination of the contract under English law. The position of the English and Korean Courts are that set-off under common law and set-off under common law have a substantive nature in the application of set-off under the equitable law. Under English law, the problem of set-off for premature termination lies in the application of set-off under common law and set-off under equitable law. The judgment of the English court and the Korean court is that set-off under the common law is applied because it has a substantive law nature. Although it is a reasonable judgment, when the English law is applied as the governing law, there are cases where the position on the permissible off-set by the cause of the voyage charter party and the time charter party is different in carriage of goods by sea, so additional review is necessary. Based on these results, it is hoped that they will serve as practical references in the future.

Giving Effect to a Foreign Extrajudicial Divorce Through Judicial Intervention and Recognition

A foreign divorce, i.e., a divorce constituted abroad or according to foreign law, should be accepted into the Korean legal order, as long as no particular problem exists. The purpose lies in preserving and promoting the stability of cross-border legal relations in personal matters. Two approaches exist in this regard: the applicable law approach and the judgment recognition approach. The recognition of legal situations, which dispenses with a substantive review of whether the lex causae was correctly applied, belongs to the applicable law approach. Although there is an opposing view, the judgment recognition approach is not superior to the applicable law approach in all respects. Particularly, the conditions of recognizing a foreign judgment may be interpreted less favorably than those of recognizing a foreign legal situation. Firstly, forum legis may not be upheld as a basis of divorce jurisdiction. Secondly, the interpretive efforts to do away with the reciprocity requirement may fail. Thirdly, the process of consensual divorce as pursued in the receiving state may be seen as violating the territorial integrity of the receiving state, due to an emphasis given to its territorial sovereignty. Fourthly, an uncompleted consensual divorce may be an object of applying the lex causae, and even the object of recognition pursuant to the doctrine of recognizing a foreign legal situation. In order to embrace those possible advantages of the applicable law approach, the concurrence should be upheld between the judgment recognition approach and the applicable law approach. The conditions of recognizing a foreign judgment in family matters should be construed as being limited to international adjudicatory jurisdiction and the congruence with public policy. The requirements of the legality of the service of process and the reciprocity should be discarded, even in interpreting the existing law. This differentiation may be made in the course of applying Article 217 of the Civil Procedure Act mutatis mutandis, pursuant to Article 12 of the Family Procedure Act. On the other hand, Korean courts should also dispense with a scrutiny of whether the foreign court applied the same law as Korean courts would apply in the same situation. Furthermore, forum legis should be added to the list of jurisdictional bases. This will prevent the imbalance between the judgments recognition avenue and the applicable law avenue, including the recognition of a foreign legal situation, in particular.

법무부의 ‘집단소송법 제정안’에 대한 검토

On 2020. 9. 28. the Korean Ministry of Justice announced its proposed bill for a new Class Action Act(“Proposed Bill”) which will repeal the Securities-related Class Action Act(“SRCA”) and serve as a general purpose collective proceeding. The Proposed Bill has brought its basic structure from the SRCA and added some new features. The Proposed Bill has expanded it scope of application to “any claim seeking indemnification for damage” regardless of its cause of action, and thus various types of tort cases and even breach of contract cases can be included. This significant change while keeping the opt-out mechanism from the SRCA gives difficulties in ascertaining the class and identifying its members. Also, in order to realize substantial equality and to provide more devices for collecting evidence, the Proposed Bill has adopted a new system which enables wide range of production of materials(including trade secrets, if necessary for finding facts of the claim), and has even opened the door for its usage to persons who have not yet filed their complaints for class action. However the new system lacks safeguards such as protective order, sanctions, or criminal penalties. Furthermore, the Proposed Bill has incorporated the Citizen Participation Trial which is used in criminal proceedings in Korea, but it has a number of problems. The system itself is designed unfairly because only the plaintiff side class representative has the right to demand for the Citizen Participation Trial. Moreover, given the complexity of mass harm cases, and the judicial practice in Korean courts it could go against the purpose of the Proposed Bill, which is to effectively resolve collective damage. In order for a general purpose class action system to be effective, various options should be provided so that the judge could exercise its discretion and choose the appropriate method in resolving each dispute. Also to make an evidence collecting system which would actually work, careful approach needs to be taken which would balance conflicting interests. Lastly, to ensure successful outcome of the Proposed Bill new feature which aims to serve another purpose such as Citizen Participation Trial should be removed.

일제강제징용 배상판결에 대한 민사소송법 쟁점의 검토

Legal remedies for the forced labor of the Korean people for the production of military supplies by Japanese companies during the Japanese colonial period have not been appropriately implemented to this day. Accordingly, the victims first requested a Japanese court for damages against Japan and Japanese companies, and the Japanese court dismissed and confirmed the plaintiff s claim. Victims claimed for damages to the Korean courts again, and the Supreme Court Decision 2009Da 68620 and the Supreme Court en banc Decision 2013Da 61381 after reversed were in favor of the plaintiffs. It is the first final and groundbreaking judgment in favor of the plaintiff in legal actions related to various compensations filed by victims of the Japanese colonial period against the Korean and Japanese governments, Etc. In the above case, the courts start from the domestic jurisdictional provisions of the Civil Procedure Law in determining international jurisdiction. In addition, the courts consider the ideology of the distribution of international jurisdiction, the distinctiveness of international jurisdiction, predictability, Etc. by accepting substantial relations. Moreover, the courts affirmed that the situation of the Republic of Korea, the conclusion of the Korea-Japan Claims Settlement Agreement, and follow-up measures are more closely related. However, it is sorry that the decision simply enumerates the legal basis without explaining the interrelationship between each criterion in the development of logic. On the other hand, it is very reasonable to apply constitutional values and international jus cogens rules in determining whether foreign judgments violate public policy as one of the requirements for recognizing them. However, it is necessary to supplement more elaborate legal grounds for public policy as the requirements for recognizing foreign judgment and the detailed legal basis on the conclusion of the judgment. Recently, in the same case of claims for damage by victims of forced labor, a lower court concluded contrary to the above logic of the Supreme Court, raising concerns about the regression of the precedent. The lower court should respect the purport of the above Supreme Court decision, and it is hoped that the upper courts will amend the decision. Conclusions and rationale of the Supreme Court decision will be an essential milestone in the future remaining enforcement proceedings as an executive title, in the unification of precedents between the contrary court decisions, and the establishment of political, economic, and international relations between Korea and Japan. It is expected that the theory of precedent will progress further with the development of more advanced and sophisticated legal grounds in related cases in the future.

좁은 수로의 항법 적용에 관한 한국·영국 법원 판결의 논증구조 비교 평석 - The “Alexandria 1” and “Ever Smart” Case와 “한림페리9호·민호호 충돌사건”를 중심으로 -

Since the description of the Collision Regulations for narrow channel does not cover all specific situations, substantial applications may be contested in many respects. For example, in situations where ships sailing on narrow channels intersect with vessels outside the channel, questions could arise as to whether rule of narrow channels will be applied or if rule of crossing will be applied. The judgements of the Queen`s bench and Court of appeal on the Alexandria 1 v. Ever Smart case in 2018 was of great significance in that it has come to the conclusion that a universal solution to this problem, the rule of narrow channel should be applied if even one vessel is on a narrow channel. On the other hand, the Daejeon High Court's judgment on the "Hallim Ferry 9 and Minho Collision" in 2017 is not much different from the above judgements on appearance, but the structure of the argument is different and does not seem to have made a ruling that is a guideline in the future. In this paper, I will examine in terms of legal argumentation theory how the process of justifying the navigation application of narrow channels in the crossiong situation between ships in the vicinity of narrow channels was different. Although both courts reached similar conclusions, the lack of justification is pointed out in that the Korean courts failed to provide a reasonable basis for argument. The purpose of these discussions is not to reveal which navigation rules are correct in special circumstances, but to suggest a desirable direction for providing evidence for the judgment.

A Study on Starting Point & Ending Point of Trade Secret Infringement Injunction Period and Non-competition Injunction Period

This paper discusses starting point and ending point of each injunction period of three different situations, where trade secret injunction is requested, non-competition injunction is requested and both of them are requested. This paper specifies problems in many holdings of Korean courts as the followings: (1) many holdings do not tell the difference between a preventive injunction against future acts and a damages remedy on past acts; (2) notwithstanding breach of a non-competition agreement, the court does not issue an injunction order under the reason that non-competition period has already expired; (3) even though certain information maintains trade secret status, many trade secret injunction orders have an ending point; (4) many holdings do not tell the difference between a non-competition case and a trade secret case. This paper proposes problem-solving jurisprudence as the followings. Firstly, starting point of injunction period shall be the holding day and any day before the holding day cannot be such a starting point. Injunction is remedy against future act after the holding day. On a past act, only damages remedy is available. Secondly, even though non-competition agreement period has expired during court proceeding, the court should, in an appropriate circumstance, issue a non-competition injunction order which starts from the holding day and remains for some period. Such jurisprudence which does not do so may make a non-competition agreement meaningless. Thirdly, in a trade secret infringement injunction order, a perpetual period without an ending point shall be the principle. Only if the defendant clearly proves that the information at issue shall lose its trade secret status in the not-so-distant future, the court may exceptionally set an ending point of the injunction period. Fourthly, the court shall differentiate among a trade secret injunction case, a non-competition injunction case and a case where two injunctions were requested together and shall hold in accordance with character of the request.

법원의 국제인권조약 적용 -판결문 전수조사를 통한 현황 진단 및 적용단계별 논증 분석-

국제인권조약의 적용이 문제가 되는 사건은 국내 법원에서 일상적으로 자주 다루는 유형의 사건은 아니지만, 최근 들어 법원의 판결에서 국제인권조약이 원용되는 빈도가 급증해 왔으며 국제인권조약의 국내적 효력과 지위, 해석 원칙에 대해서 비교적 구체적으로 설시한 판결이 등장하고 있어서 국내 재판에서 국제인권조약의 중요도가 한층 높아지고 있다. 그러나 여전히 법원이 국제법적으로 타당한 해석 기준에 따라 국제인권조약을 성실하게 해석하여 적용한 사례가 드물고 사법부가 전반적으로 국제인권조약을 생소해 한다는 평가가 지배적이다. 이에 본 논문은 법원에서의 국제인권조약의 적용 현황을 양적․ 질적으로 분석하여 법원이 국제인권조약을 적용하는 데 실제로 한계로 작용하는 요인이 무엇인지 진단함으로써 향후 법원을 통한 인권조약의 실현을 위한 방향성을 모색하는데 시사점을 얻고자 한다.BR 이를 염두에 두면서, 본 논문은 법원에서의 국제인권조약 적용의 양적 현황을 살펴보기 위하여 법원에서 선고되고 전산으로 확인 가능한 판결 중 대한민국이 가입 ․ 비준한 7대 주요 국제인권조약이 적용된 모든 판결을 전수조사하여 조약별, 시기별, 소송유형별 선고된 판결문 현황을 소개하고, 국제인권조약에 근거한 주장이 인정 ․ 불인정된 비율의 통계를 소개한다. 또한, 질적 현황을 살펴보기 위하여 법원에서 국제인권조약에 근거한 주장 취지가 인정 ․ 불인정된 각 경우의 주요 논거를 유형화하여 판단단계별로 분석하고, 법원이 국제인권조약을 적극적으로 적용하는 데 실제 한계로 작용하는 요인이 무엇인지 검토한다. 판결문에 대한 이러한 실증적 연구를 통하여 도출할 수 있는 주요한 시사점으로, 국제법이 생소하고 국내 법리에 익숙한 국내 판사의 상당수가 국내 법리에 경도된 해석, 즉 조약을 해석하면서 유사한 국내법에 대한 법원의 기존 주류적 해석에 귀속시켜 해석하는 경향이 있으며, 이는 조약에 관한 국제적 해석 기준이 국내에서 수용되는 것을 차단하는 기능을 한다는 문제의식을 확인한다. 이를 통해서 인권조약에 충실한 사법구제가 이루어질 수 있도록 사법 지원이 필요함을 논변하는 것으로 결론에 갈음한다.

The Enforced Civil Law Era in Korea and The Co-ownership Theory

한국의 일제강점기는 민법학상으로 이른바 의용민법의 시대이다. 의용민법 시대는 일본 민법이 한국에 적용되던 사실로만 파악되어서는 안 된다. 일본 민법학의 시대적 변이와, 일본에서 일본 민법의 운용과 차별화된 한국에서 일본 민법의 운용과, 한국의 구법 운용 등이 종합적으로 파악되어야 한다. 한국 민법 제정 과정에서 인상적인 수정을 거친 공동소유 부분은 그렇게 파악할 필요가 있는 대표적 예이다. 공동소유에 관한 한국 민법학계의 일반적인 인식은 의용민법 시대 동안 합유와 총유가 혼동되다가, 한국 민법 제정 과정에서 김증한 교수의 수정 제안을 계기로 합유와 총유의 개념 정리 및 규정 분리가 행해졌다는 것이다. 그러나 의용민법 시대에 한국에서 나온 판결들을 조사해보면 합유와 총유는 혼동되지 않았다. 판결들은 합유로 일관적이었다. 의용민법 시대 합유와 총유의 혼동은 한국이 아니라, 일본 민법학에 존재하였다. 그리고 그것은 독일 민법학상 공동소유 개념에 대한 일본식 개념 정리 내지 용어선택 과정의 일에 가까웠다. 그러한 일본 민법학상 합유와 총유의 혼동이 한국에도 존재하는 것으로 생각하게 만든 사람은 김증한 교수이다. 김증한 교수는 한국 민법원안상 합유와 총유의 혼동을 비판하면서 한국 민법 공동소유 부분에 합유 규정과 총유 규정을 분리하여 둘 것을 제안하였다. 한국 민법 공동소유 부분은 결과적으로 합유 규정과 총유 규정을 분리하여 두는 것으로 되었다. 그러므로 한국 민법상 공동소유 부분을 이해하려면 김증한 교수가 합유와 총유의 혼동을 비판한 맥락을 이해하여야 한다. 그러려면 의용민법 시대와 합유와 총유에 관한 이론사를 탐구하여야 한다.The civil law which applied in Korea during the era of Japanese occupation is usually called as ‘enforced civil law.’ The era of the enforced civil law is characterized by the fact that Japanese civil law was applied to Korea. From a historical perspective, however, the era should be comprehensively figured out by combining the time of the enforced Japanese civil law with the time of so-called old law after the Korea’s liberation. There are four segments in the era of the enforced civil law in Korea. First, there is the pre-enforced civil law period that Korea was politically fallen under Japan, but the Japanese civil law was not applied in Korea yet. Second, there is the enforced civil law period that the Japanese civil law was applied in Korea unstably and discriminatively. It is also the period that Japan’s jurisprudence was overwhelmed by the German’s jurisprudence. Third, there is the assimilation period between the laws of Japan area and the laws of Korea area. And fourth, there is the aftermath period that Korea has achieved its liberation but continued to rely on the enforced civil law. The enforced civil law era was finally finished by enacting the Korean civil code. During the process of the enacting of Korean civil code, Professor Kim Jeung-han has great role at the co-ownership provision part. He made some important modification of the civil code bill. However, Professor Kim Jeung-han’s role may be attributed to his textbooks and lectures on civil law rather than to the process of enacting civil law. It was after 1980s when his students formed the backbone of the Korean courts that the co-ownership theory of Professor Kim Jeung-han becomes generality.