Violation Of Duty Research Articles

Environmental Intergenerational Justice and the Nonidentity Problem

A moral Kantian approach can be developed to deal with the nonidentity problem with regard to environmental intergenerationl justice—at least in cases of depletion or risky policy. Being a duty-oriented moral theory, this approach allows both that people coming into existence in a nonidentity situation can be glad to exist while simultaneously taking into account depletion or risky policy, to which their existence is causally related, as possibly being morally wrong because of a violation of moral duties.

Окремі питання юридичної відповідальності за невиконання судових рішень слідчого судді

Annotation. The article is devoted to the study of legal liability for non-execution of the decisions of the investigating judge. The inconsistency of the criminal, administrative and criminal procedural legislation on this issue was found. Criminal procedural responsibility as a separate independent type of legal responsibility is inherent in all common signs of legal responsibility, such as: using only for violation of statutory duties, regulatory fixation, the occurrence of certain legal restrictions for a person, compulsory execution. Criminal liability is directly aimed at achieving the general objectives of legal liability: remedial, punitive, general preventive and specially preventive. In its turn, criminal procedural responsibility does not have the direct aim of achieving these goals. For criminal procedural responsibility, the achievement of these goals is merely an incidental, consequential consequence of the application of a more substantial restriction of human rights and freedoms in order to resolve the stipulated articles. 2 CPC of Ukraine the tasks of criminal proceedings. The above allows us to speak about the expediency and legitimacy of the use of criminal procedure and criminal liability for the same violation – failure to comply with the decisions of the investigating judge. Thus, these types of liability are not mutually duplicative, each of them pursues its own legal purpose. At the same time, given the fact that there are two different types of legal liability, their application for the same misconduct does not contradict the current legislation, since according to Art. 61 of the Constitution of Ukraine no one can be twice brought to legal liability of one kind for the same offense. Highlighted adverse legal consequences that occur for participants in criminal proceedings in the event of non-execution of the decisions of the investigating judge.

같은 회사에의 이륜차보험가입과 고지의무위반여부

보험계약자 측에서 고지의무위반을 하였고 보험자가 정보 확인을 하면 그 내용을 알 수 있는 경우에 이 문제가 부각된다. 고지의무위반의 경우에도 보험자의 중과실로 알지 못한 경우에는 고지의무위반을 주장할 수 없기 때문이다. 그런데 다른 한편에서는 개인정보보호 관련법에 의하여 보험관련 정보를 보험자가 함부로 열람할 수 없는 문제점도 존재한다. 보험가입정보 활용과 개인정보보호 사이에서 접점을 찾는 노력을 필요로 한다. 보험자가 접근할 수 있는 자료로는 해당 보험회사의 타 보험가입 자료가 있을 수 있고 또한 보험개발원의 자료도 있다. 보험자가 보험계약자의 자사의 다른 보험가입사실이 있는지의 정보를 확인하는 것도 어느 정도는 필요하다. 그리고 보험개발원의 보험정보시스템에 접속하여 필요한 정보를 확인할 필요성이 인정되는지 어느 정도 그것을 확인하여야 하는지도 중요한 문제이다. 판례는 공무원이었다가 화물자동차운전사로 직업이 바뀐 경우 이를 보험자에게 통지하여야 하는데 같은 보험사에서 화물자동차보험을 가입한 경우에는 보험자가 보험계약자의 직업에 공무원에서 화물자동차운전사로 변경되었음을 인지하기는 어렵다고 보았다. 즉 그 경우에는 보험계약자의 직업변경 통지의무 위반을 인정할 수 있다는 것이다. 그러나 같은 보험사에 이륜자동차보험을 들고 있는 경우에 다른 보험가입을 하면서 이륜자동차운전을 하지 않는다고 답한 경우에는 해당회사의 전산망을 조회하여 보면 이륜자동차를 운전함을 알 수 있다. 따라서 이 경우에는 보험자가 보험계약자가 이륜차를 운전함을 알았거나 몰랐다면 그에게 최소한 중과실을 인정할 수 있다고 하였다. 독일의 경우에도 보험자가 고지의무 위반의 대상이 되는 사실을 적극적으로 인지한 경우에는 고지의무위반의 제재로서 계약해제를 할 수 없다고 독일 보험계약법 제19조 제5항 제2문에서 규정을 하고 있으며, 보험회사의 계약담당부서에서 보험계약자의 상황을 인지한 경우에는 보험자가 안 것으로 본다. 콘체른 기업관계에서도 이를 인정한다. 다만 보험자의 모든 데이터가 그 인지대상은 아니라고 보고 있다. 상법 제651조 단서에서 보험회사가 보험계약체결 당시에 고지의무위반 사실을 알았거나 중대한 과실로 이를 알지 못하였다면 보험자의 해지권이 제한된다. 보험자의 경우에도 고지의무위반의 대상이 된 사실을 이미 알고 있거나 조금만 주의를 기울이면 알 수 있었던 경우에는 계약해지를 제한함으로써 당사자 간의 공평한 이해를 조정하는 것으로 볼 수 있으며 이러한 경우에는 보험회사의 자기 과실에 의한 위험선택이라는 점과 보험계약자 측의 고지의무위반이 보험회사의 위험선택을 방해하였다고 볼 수 없다는 점을 고려하여야 한다. 따라서 이러한 취지를 고려하면 장기보험을 가입하면서 같은 보험회사에 이륜자동차보험을 가입하여 유지하고 있었다면 설사 보험계약자가 이륜자동차운전에 대한 고지의무를 위반하였다 하더라도 보험자의 악의 또는 중과실을 인정할 수 있으므로 그러한 경우에는 고지의무위반을 문제 삼을 수 없다고 보아야 한다.

Brak lojalności pracownika jako przyczyna rozwiązania umowy o pracę w orzecznictwie sądowym. Wybrane uwagi

The article refers to the violation of the principle of employee loyalty, which is an inseparable element of an employee’s legal relationship with the employer. Violation of duty of loyalty, in both Supreme Court and Common Courts case law, is a justified reason for termination of the employment contract in each mode, depending on the fulfillment of the conditions described under Article 45 or 52 of the Labour Code. In each case, the reason based on violation should be specified and referred to the general clauses contained in the provisions of the above articles adopted by the legislator. Lack of employee’s loyalty may also determine the non-consideration of his or her claims, even if there existed a breach of the provisions of the Labour Code when making a dismissal.

Positive morality and the realization of freedom in Kant's moral philosophy

AbstractThis paper argues that recent accounts of Kantian virtue as “strengthened” inner freedom apply much more clearly to the avoidance of violations of perfect duties than to the fulfillment of imperfect duties, leaving us with the question of how inadequate commitment to morally required ends impacts the exercise of inner freedom. The question is answered through the development of a model of inner freedom that emphasizes the relationship between moral self‐governance and participation in an ethical community.

Protection of Private Equity Investors under the Dodd-Frank Act

In securities law, investor protection means that an issuer of securities, here partnership interests for private equity, must register with the Securities and Exchange Commission (“SEC”) and be subject to disclosure, reporting, record-keeping compliance and examination programs. This article argues that the Dodd-Frank Act has fulfilled part of its objective to protect private equity investors by forcing private equity managers to disclose information on their operations. Disclosure has provided greater transparency about how the business of private equity is conducted. The increased SEC scrutiny started in 2014 has uncovered unfair practices and violations of fiduciary duties that sophisticated investors could not detect on their own. Notwithstanding this improved transparency, the Dodd-Frank Act still falls short of imposing the main tool securities laws uses to protect investors: that is, full and fair disclosure. In other words, Dodd-Frank does not provide all the required protections that are important for investors to assess the quality of their investments and make informed decisions. This article offers to expand transparency by additional public disclosure of investment returns, fees, and managers’ income. For other policy issues unrelated to the protection of investors, that is, jobs or tax, Title IV of the Dodd-Frank Act does not offer the appropriate setting. Applying or enacting legislation concerning tax, labor or bankruptcy laws can better curve the controversial practices of private equity firms.

Is the "ghost surgery" the subject of legal punishment in Korea?

PurposeRecently a controversy has arisen about so-called “ghost surgery” practices, and people have voiced their opinions for legal sanction against such practices, which clearly undermine the foundation of medical ethics. However, there has been a lack of legal basis for punishing those actions. The present study aims to examine which pre-existing legal provisions could be applied to regulate ghost surgery.MethodsThe Korean Medical Service Act has a provision relating to informed consent to inhibit ghost surgery but does not include penalty provisions prohibiting ghost surgery itself. Also, the Korean Supreme Court precedents on this issue have not been settled as of yet. Therefore, this study referred to U.S precedents, law books, and related papers.ResultsWith respect to ghost surgery, we expect the charges of bodily harm, assault and battery, and fraud could be applied under Korean law, in addition to charges regarding the violation of medical law, such as the omission of entries or false entries in medical records. A patient provides consent to bodily harm prior to surgery, and only the person who is entrusted with such permission can become the operating surgeon in the operating room.ConclusionIn other words, even if other medical professionals are present in the operating room, the operating surgeon who received consent must take overall responsibility for the whole process of the surgery. A surgeon should bear in mind that a violation of such duty can constitute a criminal offense.

Analysis of lawsuit cases in the Department of Surgery in Korea.

PurposeThe aim of this study is to prepare medical staff in order to prevent medical malpractice litigation through analysis of litigation cases related to the department of surgery in Korea.MethodsA total of 94 litigation cases related to the department of surgery, where a certain amount of payment was ordered to the defendant between 2005 through 2010, were analyzed. We examined time of occurrence, amount claimed and awarded in damages, plaintiff claims, and court opinion.ResultsAn average of 3.2 years was spent from the date of the incident occurring to the end of the litigation procedures. The average amount awarded in judgments for damages was 59,708,983 ± 67,307,264 (range, 1,700,000–365,201,482) Korean won. Cases were found involving the following opinion of the court: violation of duty of care (49 cases), violation of informed consent (7 cases), violation of duty of care and informed consent (5 cases), and settlement, reconciliation, and others (32 cases). By analyzing defendants' negligence in court opinions, diagnosis (30.8%) was the most common, followed by post-operation management (27.7%).ConclusionPhysicians have to conduct treatment and surgery based on exact diagnosis and be careful to observe patients' conditions and symptoms after surgery. It is essential to identify the current status and characteristics of medical litigation for reducing further litigation and improving patient safety. In order to create a safe medical environment, national efforts should be made not only by individuals but also at the national level.

Medical Litigations Associated with Cataract Surgery in Korea.

BackgroundTo analyze the results of court rulings about medical litigations related to cataract surgery in Korea.MethodsWe collected 50 anonymized judgements regarding cataract surgery between 2000 and 2016 and analyzed the reasons for the medical litigations, the court rulings, the reasons for compensation, and the amount claimed and finally awarded.ResultsForty-eight litigations (96%) resulted from errors in treatment, and the reasons were as follows: endophthalmitis, dissatisfaction of visual outcome or ocular discomfort, bullous keratopathy or corneal opacity, retinal detachment, glaucoma or vitreous hemorrhage due to the progression of an underlying diabetic retinopathy, and others in order. Two litigations (4%) arose due to errors in diagnosis. Among the 50 final cases, 21 litigations (42%) were decided in favor of the plaintiff, and 29 litigations (58%) were decided against the plaintiff and dismissed. Ten cases awarded damages to the plaintiffs because of a violation of duty of care, and 11 cases awarded damages due to a violation of informed consent. When comparing cases with errors in diagnosis to cases with errors in treatment, there was no significant difference in the relative risk of a defendant's verdict (P = 0.503). The total amount of awarded damages was KRW 439,124,496 (USD 399,204), and the average amount was KRW 20,910,690 (USD 19,010).ConclusionNearly half of the cases were decided in favor of the plaintiff due to the violation of informed consent. This study's results will be helpful in understanding the results of medical litigations regarding cataract surgery and reducing future lawsuits.

A study on the relation between violation of disclosure duty and fraud

A study on the relation between violation of disclosure duty and fraud

Особливості запитань у постановах слідчих про призначення судово-медичної експертизи у випадках порушень медичними працівниками своїх професійних обов’язків

Особливості запитань у постановах слідчих про призначення судово-медичної експертизи у випадках порушень медичними працівниками своїх професійних обов’язків

A study on the relation between violation of disclosure duty and criminal punishment - focused on the comparative study with German discussion

A study on the relation between violation of disclosure duty and criminal punishment - focused on the comparative study with German discussion

ДИСЦИПЛІНАРНА ВІДПОВІДАЛЬНІСТЬ СУДДІВ

The article presents the conceptual foundations of the disciplinary responsibility of judges. It was found that the legal basis for bringing judges to disciplinary responsibility is governed by the provisions of such documents as the Law of Ukraine «On the Judicial System and the Status of Judges», the Law of Ukraine «On the High Council of Justice», the Constitution of Ukraine, the Convention on Access to Information, Public Participation in Decision Making and access to justice in environmental matters (Aarhus Convention), ratified by the Law of Ukraine dated 06.07.1999 No. 832-XIV, Decision of the XI (regular) Congress of Judges of Ukraine dated 22.02.2013 «On Approval of the Code of Judicial Ethics». It has been established that bringing judges to disciplinary responsibility for violation of professional duties is a guarantee of the protection of the rights and freedoms of citizens, their interests, as well as a way of forming the rule of law in the country. It was determined that judges can be brought to disciplinary responsibility, the order of disciplinary proceedings on which is based on the grounds determined by the Law of Ukraine «On the Judicial System and the Status of Judges». It has been proved that in addition to the Law of Ukraine «On the Judicial System and the Status of Judges», the Resolution of the European Association of Judges also has its own list of grounds for bringing judges to disciplinary responsibility, which are clearly delineated for the legal situation in Ukraine. It has been established that today the grounds for bringing judges to legal responsibility, in particular to disciplinary responsibility, are based on factual and legal aspects, where the factual aspects of bringing judges to disciplinary responsibility indicate where the offense was committed and which responsibility is provided. It was found that a disciplinary offense of a judge is the commission of an act (action or inaction) by a judge, as a result of which the duties determined by law are violated, and on the basis of such violations, the judge is brought to disciplinary responsibility according to a specially developed legal procedure. It has been determined that the main body that considers disciplinary cases in relation to bringing judges to disciplinary responsibility in Ukraine is the High Council of Justice.

Decisions of the Plenum of the Supreme Court of the Russian Federation: Unsettled Issues of Labor Law

The article provides a comparative analysis of some ineffective and valid rulings of the Plenum of the Supreme Court of the Russian Federation regarding application of labor law provisions. In particular, the author examines controversial issues arising in the enforcement practice concerning termination of an employment contract at the initiative of the employee and the employer. In the effective rulings of the Plenum of the Supreme Court of the Russian Federation, there are two de facto different approaches to the issue of the date of the employee's dismissal if an organization is liquidated. It appears that the date of the employee's dismissal must coincide with the date of an intermediate financial statement approval. Certain difficulties are caused by issues related to the failure of the employer to comply with the time limits set forth in the Labor Code of the Russian Federation regarding the procedure of warning an employee about impending discontinuation of an employment contract (a two-month period of dismissal in case of staff reduction and a three-day period in case of the employment contract expiration). The article examines inconsistent court practice regarding the procedure of recognizing absence of an employee from the workplace without a good reason for more than four consecutive hours as absenteeism, discusses advantages and disadvantages of Paragraphs 20 (discontinuation of employment at the initiative of an employee), 35 and 39 (order of employment discontinuation for culpable violations of labor duties) of Ruling № 2 of the Plenum of the Supreme Court of the RF of 17 March 2004, as well as matters relating to material liability of an employee for the damage caused to the employer while fulfilling labor duties. The problem amounts to the question whether it is legitimate in this case to claim damages from an employee under civil law. This issue was previously resolved by Ruling №8 of the Plenum of the Supreme Court of the USSR of 23 September 1987. The paper indicates that the new chapter of the RF LC requires an immediate clarification concerning peculiarities of regulation of the work of employees (staff) who are sent temporarily to other physical or legal entities under the secondment contract by their employers.

A Legal Analysis of the Precedents of Medical Disputes in the Cosmetic Surgery Field.

BackgroundDisputes regarding medical malpractice occur between practitioners and patients. As patients have become increasingly aware regarding medical care, an increase in the unexpected side effects of procedures has been observed, thereby leading to an increase in disputes regarding medical malpractice. In this study, we reviewed trends in precedents involving cosmetic surgery-related medical disputes, with the goal of helping to prevent unnecessary disputes in the future.MethodsWe conducted a search of the judgments made in South Korean courts between 2000 and 2013 that were related to the field of plastic surgery. A total of 54 judgments were analyzed, and the selected precedents were reviewed and classified according to the kind of negligence involved.ResultsThe claim amounts ranged from under 8 million KRW (6,991 USD) to 750 million KRW (629,995 USD). The most common ratio of the judgment amount to the claim amount was 20%–30%. The judgments were classified according to the following categories: violation of the duty of explanation in 17 cases (29%), violation of the duty of care in 10 cases (17%), violation of both duties in 20 cases (35%), and no violation of duty in six cases (10%).ConclusionsCosmetic surgery-related suits require different approaches than general malpractice suits. The Supreme Court requires plastic surgeons to determine the type, timing, methods, and scope of their treatments when considering possible results. Therefore, practitioners should be educated on their rights and responsibilities to enable them to cope with any possible medical dispute that may arise.

개항의 항계 안에서의 선박충돌에 따른 법률상의 쟁점 -해양안전심판원의 재결사례에 대한 분석을 중심으로-

Abstract Open port has the designated course and traffic jam of ships happens often. This fact may connect to ship crash easily. And the accident happens due to violation of navigation mainly. In ship crash between Neoblue and Shinkwang 7 at incheon open port, the Korean incheon maritime safety tribunal shows that the violation of navigation and duty of attention at the open port would produce ship crash directly. Wherefore, the interpretation and application of navigation are important to protect future ship crash accident. The points of navigation as objects of study are divided into two categories, interpretation and application of navigation on crashing between the ship which navigate the designated course and the ship which enter into the designated course from the another course or outside the course, interpretation and application of navigation on crashing between two or more ships, which navigate violating the navigation every ships and violating agreement rule each other. And as conclusion, I refer the legal responsibility both Neoblue and Shinkwang 7 in detail. The results of this study as follows : First, in case of crashing between the ship which navigate the designated course and the ship which enter into the designated course from the another course or outside the course, public order in open port act can be applied by priority. However, in applying the public order the principle of trust and reasons of crew, cause and effect, the time of navigation application are mandatory considerations. Second, in case of crashing between two or more ships, which navigate violating the navigation every ships and violating agreement rule each other, we should focus on the reasons of crew. Also, the reasons of crew need strict conditions. These means that the awareness of crash danger and recognition of special circumstance including limit state of ships, existence of emergency danger, non escaping crash danger by only observance of navigation. And in case of this state the public order the principle of trust and reasons of crew, cause and effect, the time of navigation application should be considered by priority, too. Key words : The Korean maritime safety tribunal, Open Port, Ship Crash, Navigation, Principle of Trust, Reasons of Crew, Public Order in Open Ports Act, Cause and EffectCorresponding Author : 051-629-5896, winterprey@pknu.ac.kr (2015 ) .

Disciplinary sanctions for police officers in Croatia and in Serbia

The authors in the paper give a review and a description of legally proscribed disciplinary punishments for police officers in the legislations of the Republic of Croatia and the Republic of Serbia. With certain institutes the authors give the point of view of legal doctrine and case law, and the statistical data. In the introduction the terms police officer and disciplinary responsibility are defined, and the purpose of disciplinary punishments is explained, as the authors point out that imposing punishments ensures proper functioning of the service, and the effect of the punishment has a special and general prevention. Following are legal provisions which regulate obligations of police officers and the rules for determining their responsibility for violations of official duty. In the chapter on disciplinary punishments the term disciplinary punishment is defined, and afterwards particular punishments for certain minor or severe violations of official duty are listed and described. The authors point out the punishment of conditional termination of civil service, which is imposed for particularly severe violations of official duty, when it makes sense to give the police officer one last chance to improve their behaviour and attitude towards the official duty. The following chapter describes the rules for determining disciplinary punishments, competent persons and deadlines for the execution of disciplinary measures, as well as the deadlines and reasons for deleting the executed disciplinary sanctions from the files of the police officers. After the analysis and comparison of the legal solutions in both countries, in the conclusion the authors give a critical review of the existing legislation and solutions for their improvement as refinements of existing and prescribing additional disciplinary sanctions for police officers, as well as proscribing disciplinary sanctions for the retired police officers. Thus the authors note that by proscribing two punishments for minor and six for severe violations of official duty in Croatia, and two punishments for minor and five for severe violations of official duty in Serbia, the legislators enabled individualization of sanctioning for particular violations and violators; however, they suggest also proscribing other disciplinary measures for the purpose of individualization of punishing. The authors propose proscribing the possibility of punishing retired police officers for violations committed while they were in the service, which would be modelled on the German Federal Disciplinary Law. Furthermore, they point out that it is not clear what purpose would be achieved in the Croatian law by imposing a punishment of relocating to another position with the same complexity of work, as well as suggest changing disciplinary punishment of prohibiting professional promotion and advancement in the service into the legal consequences of disciplinary punishments for police officers in Croatia, according to the Croatian Law on Civil Servants.

‘Fraud’ and ‘Misleading Commercial Practices’: Modernising the Law of Defects in Consent

AbstractThe rules provided by the civil codes on defects in consent were designed at a time when the notion of consumer law did not exist and fairness at the pre-contractual stage was not widely considered as a value worthy of protection. Matters have changed radically in the last three decades. The proliferation of rules protecting consumers on a European level, especially through information duties and rights of withdrawal, and the growing impact of general clauses, has led to a fragmentation of domestic contract law. This clash of different sets of rules is particularly conspicuous in the field of unfair commercial practices as the European legislator has not made provision for specific private law remedies for individual consumers in cases of misleading and aggressive commercial practices. This article addresses the particular issue of the applicability of the law of fraudulent misrepresentation to cases of misleading commercial practices. The purpose is to reconsider ‘fraud’ in terms of a defect in consent, in a manner that is both more in line with the modern features of European contract law and better able to counteract new market strategies based on exploiting cognitive weaknesses. The focus is thus put on the relationship between pre-contractual information duties and defective consent, as well as on some insights of law and economics, which demonstrate that ‘consent theories’ or ‘will theories’ cannot provide precise criteria to indicate when a contract should be void. In conclusion, a possible legislative intervention aiming to substitute the rules on fraud for a set of remedies for violation of information duties is discussed.

A call to arms to help heal medicine’s greatest ailment - Publication bias and inadequate research transparency

The paradigm of evidence-based medicine has made impressive advancements since its conception and implementation, but publication bias and issues with inadequate research transparency have remained persistent and pestilent problems. These closely-related issues have markedly detrimental effects on the evidence base from which researchers operate and medical providers make health care decisions, and this can result in involuntary violation of professional and ethical duties and supererogatory motives to serve the public; likewise, it puts patients at risk of receiving medical interventions or advice based on incomplete or ill-understood evidence. By informing readers about the scope of these issues, the failed attempts to correct these issues, and current efforts underway (including a measure in which the lay population can participate), this article serves as a call to arms to help eradicate these incredibly important problems.

The Moral-Psychology of the Common Agent – A Reply to Ido Geiger

Ido Geiger's paper ‘What it is the Use of the Universal Law Formula of the Categorical Imperative?’ is part of a growing trend in Kant scholarship, which stresses the significance of the rational competence of ordinary human beings. I argue that this approach needs to take into account that the common agent is an active reasoner who has the means to find out what she ought to do. The purpose of my paper is to show how universality already figures in the active reasoning of pre-theoretical agents in the form of a common universalization test. I present textual evidence for this test, and argue that this conception does not present pre-theoretical moral cognition in an overly intellectualistic or mechanistic way. Finally, I discuss how, on the pre-theoretical level, universalization relates to humanity or a rational agent's special status. Universalization is present to common agents in the form of procedures or questions that we ask ourselves, humanity as an awareness of certain particularly blatant violations of duty. These two different modes of cognition of duty are reflected in two different formulae of the Categorical Imperative.