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논문검색은 역시 페이퍼서치

법학논총검색


  • - 주제 : 사회과학분야 > 법학
  • - 성격 : 학술지
  • - 간기: 계간
  • - 국내 등재 : KCI 등재
  • - 해외 등재 : -
  • - ISSN : 1225-228x
  • - 간행물명 변경 사항 :
논문제목
수록 범위 : 30권 1호 (2013)

간행사

한충수
1,000
키워드보기
초록보기

낙태죄 헌법소원과 여성의 “목소리” [1]-낙태경험에 대한 인식을 중심으로-

양현아 ( Hyunah Yang )
7,100
초록보기
This is a critical review of the Constitutional decision held in 2012 regarding the Article270 [Abortion by the Medical Personnel] of the Criminal Code. The Constitutional Court in Korea ruled this article to be congruent with the Constitution particularly Articles 10, 11 Paragraph 1, 12 Paragraph 1. Grounded on the ``law and society`` approach, this article tries to present the result of the empirical survey that investigated women`s experiences of, and perceptions about, abortion. The survey interviewed 34 women, whom had or had not abortion. Doing this, it is intended to let the women`s voice audible especially in the context of the court that does not seem accommodate the women`s voice even in the case of abortion. In the chapter II, for the sake of paving the road to interpreting the responses of the empirical data, it discusses the various aspect of the abortion in Korea such as the related Articles in the law, the social reality of abortion in Korea. Although most of abortion have been illegal according to the law, the number of abortions in Korea has been estimated to be large according to the preexisting social survey. Do Korean women`s right to abort has indeed been realized in the reality? ; How do we, feminist socio-legal scholars, interpret the phenomenon? In the following chapter, the result of the survey is examined according to the methodology of qualitative research. About the experience of ``abortion,`` most of abortion-experiencing women confessed the physical pain and illness. They also emphasized the bodily discomfort was deepened when it could not be shared with, and supported by, others. The experience of abortion seems particularly detrimental to the relationship with a male partner who was unable to sympathize with her experiences of the abortion. In this regard, the abortion tends to reconstruct women`s perception about sexual relationship and her sexual subjectivity, too. Women who got through the abortion tend to be more cautious in having sexual relationship, and their subjectivity seems more self-restricted. In general, the ban on the abortion let the women choose the ``unsafe abortion,`` and thus it seriously risks women`s reproductive health. If the policy-maker and legislators consider that no contraception can perfectly prevent women from the unwanted pregnancy, they have to accept the women`s needs. The abortions in Korea could be the expression of desperation rather than that of women`s right for autonomy.
6,900
초록보기
This paper aims to examine marriage migration-related laws and to find what to be revised improve the human rights of marriage immigrant women. transnational marriages have been rapidly increasing in Korea since 2000.The large portion of whole cases of transnational marriage are international marriages of foreign women and Korean men. This research shows the existing laws relating marriage migration are not enough to supplement the unequal relationship between foreign women and Korean men in the ``multi-cultural family`` and to protect the human rights of marriage immigrant women. This research examines Nationality Act, Basic Act on the Treatment of Foreigners in Korea (2007), Multi-cultural Family Support Act (2008),The local government`s Ordinances on ``rural bachelors`` and multi-cultural family, Act on the Regulation of Marriage Brokerage Agencies (2007), and other laws relating the human rights of marriage immigrant women in Korea. Nationality Act still requires at least 2 years married life & residence in Korea and at least 3 years marriages & one year`s residence in Korea even if it already revised for easier acquisition of nationality by marriage in 2004. Therefore, Nationality Act need to be revised to abolish this requirements and to stabilize the legal position of marriage immigrant women. Basic Act on the Treatment of Foreigners in Korea, Multi-cultural Family Support Act are limited since these are adopted for enrolled immigrant women who has the right to stay. Victims of family violence, the abandoned and divorced marriage immigrant women are excluded from the protection of these laws. Act on the Regulation of Marriage Brokerage Agencies is also not effective to correct problems of brokering process. Substantial legal relief services have to provided to implement this law for marriage immigrant women. Generally, Provision of discrimination against immigrants should be strengthened not only in the constitutional law and other subordinate laws. Korean government proclaimed multi-culture policy and enacted multi-cultural family law and other marriage migration-related provisions to integrate marriage immigrant women in Korea. State policy of marriage immigrants is totally different from immigrant workers. The government gives legal rights to marriage immigrant women as a wife of a Korean national or a mother of Korean national while it excludes immigrant workers from the protection of laws. But the state policy on marriage immigrant women is far from this overt purpose of legislation since the real policy pursues assimilation and adaptation of marriage immigrant women. In short, marriage migration-related laws have to be reconstructed to change legal position of marriage immigrants the spouse of Korean national or mother of Korean national into a human being and legal subject of her/himself.

법학교수의 법관임용에 관한 소고

이국운 ( Kuk Woon Lee )
한양대학교 법학연구소|법학논총  30권 1호, 2013 pp. 75-92 ( 총 18 pages)
5,300
초록보기
This essay is on the appointment of law professors for the judgeship in the current Korean situation. According to the laws and regulations in Korean judicial system, only the licensed-law practitioners have been qualified to be appointed for the judgeship. In order to reform this system, Korean law professors have insisted to give them law practitioner`s license for the past 50 years. The author criticizes that the long-standing alternative of Korean law professors has very weak ground and rationale. With theoretical and sociological arguments, he suggests that the law professors who have Ph. D. in Law and serve more than 10 years in the University should be qualified to have judgeship in Korea. The new alternative could serve for the Korean law professors to overcome a kind of identity crisis that the new professional law school system has brought in Korean legal profession since 2009.

탈북여성의 중국체류 경험을 통해본 출산 및 양육에 관한 권리 침해와 대응 행위

이화진 ( Hwa Jin Lee )
한양대학교 법학연구소|법학논총  30권 1호, 2013 pp. 93-110 ( 총 18 pages)
5,300
초록보기
The purpose of this study is to consider human rights issues and changes in behaviors of women defectors from North Korea from their experiences of childbirth and parenting in China. Human rights issues and relevant behaviors can be summarized as follows. Interviewees has experienced the issue of human rights has been raised in lives illegal aliens in China; run away and hide with her baby, separate from her child and compulsory abortions due to forcibly deported to North Korea. Human rights abuses in married lives is discrimination and disregard by her husband`s family due to the purchased marriage. In such situation, the women decide birth in a risk, escape to South Korea for security who her baby and herself, and examine and reflection herself about relationship with her child in South Korea. The significant findings of this study can be seizes reflection women and independent, not just the victims. In addition, this study can be supply the broad understanding of structured experiences and response methods on human rights issues about motherhood, broad understanding women defectors from North Korea.

동물 옹호의 논의와 실천을 통해 본 동물권 담론의 사회적 의미

조중헌 ( Jung-heon Jo )
한양대학교 법학연구소|법학논총  30권 1호, 2013 pp. 111-131 ( 총 21 pages)
5,600
초록보기
This paper tries to understand the social context of animal rights discourse. For this work, I try to explore the background and the legal, theoretical, political discussion of animal rights agenda today. Animals have been excluded from our moral community so that their interests are not considered through Speciesism based on difference between ``superior human`` and ``inferior animals``. So that they have been used on a large scale in the inhumane treatment only for the convenience of human beings, But at the same time, Growing public interest in the animal rights and treatment results in the social changes such as the activation of the animal advocacy movement and gradual improvement of related laws. When the concept of human rights was made in 18th century, it meant just the right of white men. After that, there have been political actions to end oppression towards various marginal groups such as the colored, disabled, women, LGBT etc. Although all of them have been only for ``humans`` so far, the boundaries of the social and political discussions about discrimination, dominance and rights are recently being pushed back over humans. Animal rights advocates perceive animals as a ``minority`` who becomes the object of discrimination and dominance based on power-relations. From the perspective, animals can be understood as``the most marginalized`` minority group with the lowest social status and voice.
6,000
초록보기
This study focuses on Korean women from former Soviet territories, who are referred to as "Goryeoin" in South Korea. Overseas Koreans` legal status has been defined by Act on the Immigration and Legal Status of Overseas Koreans (Act on the Overseas Koreans) in South Korea since 1999. At first Koreans from the former Soviet territories were excluded from the legal category of overseas Koreans. They have been accepted into the legal category by the second amendment of the Act since 2004. Specially through student migrants` experiences, this study aims to define their conflict between legal status as overseas Koreans and real life since they migrated into South Korea. To achieve this, not only the changes of language policies in the former Soviet territories but also the enactment and amendments of Act on the Overseas Koreans in South Korea are examined, and then interviews with 9 ethnic Korean women student migrants from former Soviet territories were conducted. The collected data were analyzed. The results of the study can be summarized as follows: Korean women from the former Soviet territories were included into overseas Koreans legally, but their real statuses in south Korea are different from legal one. They are discriminated on a structural level as well as a personal level. The reasons of discriminations are concerned with nationality, race and language (English). Specially Korean women from the former Soviet territories by focusing on immigration for studies are not actively assimilated or embraced during their lives in South Korea. For them, native Koreans are competitors. Therefore, they are different both from the marriage immigrants who are supported and embraced by the government as spouses of native Koreans, and from the foreign workers whose positions have been verified by raising issues of labor rights and human rights mainly through labor organizations. There are no factors externally reinforcing their rights as a group in South Korea.

쟁의행위 기간 중 근로계약의 법적 성격과 그 효과

강성태 ( Seong Tae Kang )
한양대학교 법학연구소|법학논총  30권 1호, 2013 pp. 159-186 ( 총 28 pages)
6,300
초록보기
Paragraph (1) of Article 33 in the Constitution provides all workers with the right to collective action in order to enhance working conditions. For securing the right to collective action pursuant to the Constitution, the Trade Union and Labor Relations Adjustment Act(hereafter ``the Act``) confirms the protections for "industrial action" which means actions or counter-actions that obstruct the normal operation of a business, such as strikes, sabotage, lock-outs, or other activities through which the parties to labor relations intend to achieve their claims; restriction on civil claims for damages because of industrial action(article 3),limitation of criminal claims against industrial action of trade unions(article 4) and prohibition of dismissal of or discrimination against a worker on the grounds of participation in lawful collective activities(subsection 5 of article 81).The Supreme Court, however, has decided that all kinds of protections under the Act could be given only in the case that the industrial action might satisfy with four requirements of ``lawful industrial action``: 1) the industrial action should be begun and led by a body which must be qualified to a representative in collective bargaining such as a trade union; 2) the purposes of the industrial action should be to facilitate self-governing negotiation or bargaining between labor and management for the enhancement of working terms and conditions; 3) the industrial action should be begun only after the employer rejected collective bargaining by the specific requests of workers and it should obey the procedures required by applicable laws and regulations including vote of majority of union members for strike; 4) means or ways of industrial action should be harmonized with the employer`s property right and shall not take any exercise of violence. Because of these restricted legitimacy of case law, a strike might be illegal very easily. This paper argues that the case laws concerning industrial action have gone beyond the protection of the right to collective action under the Constitution so that they have to be changed. Dealing with the problems concerning as the effect of industrial action to employment relationship, the Court has taken a theory of ``suspension of employment relationship``. According to the theory, the parties of employment contract, an employee and an employer, should not fulfill each one`s primary duty; duty to work of an employee and duty to pay a wage of an employer. The Court have also required the four conditions of ``lawful industrial action`` in application of ``suspension of employment relationship`` effect. This paper argues that an interpretation of employment relationship during industrial action should be changed into the way harmonized with the purpose of protection of the right to collective action.

민사소송에 있어서 특정승계인의 범위

김일룡 ( Il Ryong Kim )
한양대학교 법학연구소|법학논총  30권 1호, 2013 pp. 187-220 ( 총 34 pages)
6,900
초록보기
In civil suit, the scope of limited successor becomes an issue in two areas. One is the scope of a successor after the completion of oral proceedings with effect of excluding further litigation. The other is the scope of a successor in the succession of a lawsuit. Previous discussion on the scope of a successor after the completion of oral proceedings with effect of excluding further litigation introduced the theories on the scope first. Then explaining the scope again by comparing the theory of legal form and the theory of substance was general practice. The scope of a successor in the succession of a lawsuit was also discussed in similar way by understanding it together with the scope of a successor after the completion of oral proceedings. However, there remains a question whether it is reasonable to independently discuss the comparison of theories and the comparison of new and old theories of lawsuit subject matter. In order to understand the whole picture of successor scope, it is believed that the opposition of theories should be absorbed by new and old theories of lawsuit subject matter, or, the new and old theories of lawsuit subject matter should be absorbed into the opposition of theories and discussed in a single system. Meanwhile, the reliance theory does not have relation with new and old theories of lawsuit subject matter, which constitutes the substance of excluding further litigation effect, because it is based on real right theory, which finds the essence of excluding further litigation effect in substantial law. The standing to succeed theory cannot be explained by relating it either to new theory or old theory of lawsuit subject matter because it is supported by both new and old theories of lawsuit subject matter. The due process guarantee theory is being developed without any direct relation with the opposition of new and old theories of lawsuit subject matter. Also, it is difficult to say that the new and old theories of lawsuit subject matter are directly reflected in the theories from historical viewpoint. Consequently, it is believed that the new and old theories of lawsuit subject matter cannot properly contain these issues. Therefore, it is believed that the direct intervention of new and old theories of lawsuit subject matter to the scope definition of a successor should be blocked. The theories should be classified into reliance theory, standing to succeed theory based on old lawsuit subject matter theory, standing to succeed theory based on new lawsuit subject matter theory, agent in dispute succeeding the status theory and due process guarantee theory. It would be more useful to understand the whole picture when the opposition in successor scope dependent on the nature of claim right and the opposition between theory of legal form and theory of substance would be analyzed by relating them to above theories. Among the theories, the due process guarantee theory seems the most reasonable theory because it puts priority on the guarantee of process between a successor and the opposite party of the previous owner as it identifies the essence of excluding further litigation effect from the viewpoint of legal procedure law.
6,400
초록보기
With respect to the medical cost issue in current controversy in the field of social welfare, the best solution for our community could be sought by taking approaches balancing the principle of private autonomy and social solidarity doctrine. In this context, we need to review the introduction process and the implementation details of the Patient Protection and Affordable Care Act in the United States. Although there are some assertions claiming that the United States adopted the universal social welfare regime in the field of medicine via enactment of the Act, the real purpose of the Act is to maintain its selective social welfare system under the principle of private autonomy through assuring the freedom for selecting private insurance contract parties and conditions, imposing the responsibilities to be healthy as possible as they can on their people, differentiating volume of subsidies according to annual incomes and prohibiting the government from adopting any uniform index standards such as QALY. Like the United States, in South Korea, it is required to strike balance between the principle of private autonomy and the solidarity doctrine by restoring the status and position of self governing rule in the field of medicine to improve health conditions of our people through their self management, enhance quality of medicine by conducting more creative treatment measures and more efficiently allocate limited medical resources to more required patients.
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