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논문검색은 역시 페이퍼서치

법학연구검색

The Journal of Law


  • - 주제 : 사회과학분야 > 법학
  • - 성격 : 학술지
  • - 간기: 계간
  • - 국내 등재 : KCI 등재
  • - 해외 등재 : -
  • - ISSN : 1975-2784
  • - 간행물명 변경 사항 :
논문제목
수록 범위 : 17권 2호 (2009)

Consumer Law in India: An Overview

( Rajiv Khanna )
5,800
키워드보기
초록보기

급부목적물의 하자로 인한 확대손해와 그 책임

김재완 ( Jae Wan Kim )
경상대학교 법학연구소|법학연구  17권 2호, 2009 pp. 19-40 ( 총 22 pages)
6,200
초록보기
Characteristics of imperfect performance liability causes defect of goods are as follows: A breach of main performance obligation by the obligor happens to violate payment interest, and thus results in extended damage of integrity interest of the creditor. Compensation accruing to the typical sales contract of civil law, it is regulated that warranty against defects liability and nonperformance of obligation should be applied in Korean civil law. Generally, warranty against defects liability have it as its normative principle to immediately recover the imbalance of equivalent exchange value. Therefore, since it is liability without fault, scope of indemnity should be duly limited to reliability interest. Rut it shouldn`t apply to extended damage. To cut it short, the adjustment of extended damage should be applied to the concept of nonperformance of liability in §390 (Korean Civil Law). The legal bases of this legal interpretation is that the seller has recognized the defect of his or her merchandise or has failed to inform the buyer out of mistake. That is to say, the seller has neglected to fulfill notification duty of good faith. Thus, warranty liability should be applied to the damage due to the defective goods, and extended damage should be covered under the concept of imperfect performance liability. And these two legal concepts should bid against each other (inter-pleader action). The traditional legal concepts of contract liability and tort-law liability in civil law cannot assure fair and equitable solutions of legal cases in the event that defective commercial products result in extended damage. Therefore, those cases should be covered under the product liability law. The application of this law, however, should be performed in favor of consumers, who tend to be in a lesser position as parties involved in contracts.

증거동의와 증거능력에 관한 소고

김태계 ( Tae Kye Kim )
경상대학교 법학연구소|법학연구  17권 2호, 2009 pp. 41-64 ( 총 24 pages)
6,400
초록보기
Clause 1, Article 318 of the Criminal Procedure Act is prescribing as follows. The evidence has admissibility of evidence if concerned a party consents to the evidence. Therefore the evidence which the prosecutor submits has admissibility of evidence if the accused consents. We do not need to question the witness in the law cour1 then. The consent to evidence finishes the criminal procedure rapidly and makes charge cheap. AJI kind of the evidence comes under the consent about the evidence. The resignation of the cross-examination does not have any meaning about protocol of examination of a suspect. The consent to the evidence is not therefore the resignation of the cross-examination but this the resignation of the right. The right is a admissibility of evidence and probative power of the evidence. The method of consent to the evidence does not need to be the explict. It is possible to the revelation. The accused retreats from the law court and to regard as consent to evidence behind there violates. To leave the law court does not mean to give up the right. Regarding as consent about the evidence therefore after the accused leaves the law court is unjust.
6,200
초록보기
The company needs financing to manage a company. We divide method to finance into three classes-operating profit, direct financing, indirect financing. But it is difficulty that small and medium enterprises make use of direct financing or indirect financing. And operating profit is irregular in small and medium enterprises. Especially, though small and medium enterprises take out a loan from financial institution, financial institution demand security to secure claims from small and medium enterprises. But current financing transactions are heavily focused on security interests in real estate. So small and medium enterprises that have real estates are in financial difficulty. It is necessary for small and medium enterprises to introduce a new financing transactions system. Movable property, claim and intellectual property right have been used as popular security device in financing transactions. And in the current law, there is not regulation about the concept of building becoming a target of the real-estate registration. We only must satisfy the required conditions to be acknowledged as a building which becomes a target of the real-estate registration by judicial precedents and the regulation concerned with registration: ① a building has to be got settled firmly at the land. ② a building has to be divided in structure(for example: a roof. the four walls of a building and so on). ③ a building may be independently used. So building being in course of construction can not be registered in the current law systems. As a result, various problems(for example: limitation of exercise of the right of property) have arisen. So, in this study, I would propose new methods- ① introduce new security rights for movable property, claim, intellectual property right, ② introduce new system to register buliding being in course of construction.

형사화해,조정의 필요성

박상식 ( Sang Sik Park )
경상대학교 법학연구소|법학연구  17권 2호, 2009 pp. 87-109 ( 총 23 pages)
6,300
초록보기
The program of victim-offender reconciliation and mediation is a new criminal justice system that can reduce the cost of criminal justice and prevent a second offense. Once there were only a governmental agency and an offender involved in solving an incident. It is a system that can truly remove any struggles and integrate offenders, victims and commw1ity members all together. The system of victim-offender reconciliation and mediation is being operated at 57 supporting centers for crime victims nationwide according to `practical management instruction for victim-offender reconciliation and mediation for an accusation incident` of the Supreme Public Prosecutor`s Office on June 2007. The ministry of justice announces that it will extend the merit of victim-offender reconciliation and mediation that recovers and helps the damage of a criminal victim quickly and practically at the initial stage of an incident. But it lacks legal standard and doesn`t have enforcing right of the mediation. The ministry of justice introduced a bill in 2008 to provide a legal standard. But the Court of justice objects to the idea, because the system of victim-offender reconciliation and mediation, which believes that a suspect is an actual criminal from the start of investigation, could violate the Presumption of innocence that is guaranteed in constitution and enforces an offender to participate in the mediation. We can see a criminal incident in which an offender and a victim seem to be two trains run in opposite directions along a same rail. But it becomes a chicken game in which everyone is ruined, if one of them doesn`t take a conciliatory attitude. It is necessary for them to take a conciliatory attitude and make peace with each other through the mediation to solve any struggles between them and to prevent self-destruction. So this paper reviewed what would be necessary for successful victim-offender reconciliation and mediation and what would be the problems to solve.

일본 회사법상 회계참여제도 -도입 경위를 중심으로-

이기욱 ( Ki Wook Lee )
경상대학교 법학연구소|법학연구  17권 2호, 2009 pp. 111-142 ( 총 32 pages)
7,200
초록보기
Japan introduced a new system of participation in account by enacting `Corporation Act`. In 2005, the Japan Corporation Act adopted the audit committee system which has have no parallel in history. And, corporation in Japan can choose either an audit committee or an auditor. Though the audit committee system was introduced in order to enhance the transparency and clearness of corporate management. I think it is preferable to reform it. In order to improve the present audit and account system, the accounting participator system should be introduced, the executive officer system will strengthen the monitoring function and decision making of the board of directors. And the independence of the members of the audit committee should be strengthen. In addition, the problem of self-auditting contradiction should be solved.
6,100
초록보기
The development of the corporate governance in the United States has been progressing with the fact of how the management who takes charge of the corporate management to do business operations for interests of shareholders, the owners of the corporation, on the presupposition of separation between ownership and management control. Based on this thought, the ALI principles which consist of the original frame of the corporate governance of the United States aim at reform of the board of directors in order to make the control system which is able to support interests of minority shareholders. The principles design to enhance independence of the monitoring agency through adoption of the outside directors system and to make the substantial monitoring function through establishment of internal committees, especially, an audit committee. In order to increase the monitoring function to the management by the reform of the board of directors, it is necessary for outside directors to be equipped with independence and professionality as to management. I Iowever, there are practical and institutional problems that it is not easy to find out persons with all of the independence and professionality, and that even if there is such person, it is also hard to elect a director in the general shareholders` meeting who is supported by minority shareholders. The more important issue is that the minority shareholders, who would have to actively take part in the construction of the board of directors, have a tendency to act according to principles of the securities market without concerns over the corporate management: viz. it is a general attitude that shareholders leave the corporation by selling the shares on the market, instead of increasing monitoring to the management in accordance with the Wall Street Rule. Also, where a shareholder has concerns and interests as regards the corporate management, it distinctively shows the free ride attitude: the shareholder tends to just wait and see without voluntarily going forward by herself to do something for such concerns and interests with her costs, hoping others to solve the matters. This tendency of shareholders in the stock market reveals an essential limit of the American corporate system, namely shareholderism as for business operations and corporate governance.

지적재산권 침해범죄에 대한 형사법적 검토 -비친고죄 개정 논의를 중심으로-

이종갑 ( Jong Gab Lee )
경상대학교 법학연구소|법학연구  17권 2호, 2009 pp. 165-193 ( 총 29 pages)
6,900
초록보기
Today, one cannot emphasize too much intellectual property right of importance. It has many wealthy value right such as patent right and copyright, software, and those right is meaningful not only to individual but also society. Resides, that possible develope in future. But it is problem creating is hard but coping creating is easy, specially, the advancement of internet is problem awaiting solution. Therefore, It is at law penalty about a problem of this kind and generally it ordain an offence subject to complaint of criminal law because for personally and peaceful solve. I Iowever one`s claim that we didn`t maintain an offence subject to complaint, because violation of intellectual property right, reproduce is more than increase, that is considering crime. It is reasonable in criminal law. Finally, form an independent judgment, solved of this problem is embarrassment if we have one`s effort, Therefore required joint research intellectual property right and criminal law in future.

복수노조시행에 따른 개별문제 -편의제공,쟁의행위,조합비공제를 중심으로-

최영진 ( Young Jin Choi )
경상대학교 법학연구소|법학연구  17권 2호, 2009 pp. 195-216 ( 총 22 pages)
6,200
초록보기
Multiple trade unions in a business unit are enforcing on the 1st of January, 2010, hereby, according to Trade Union & Industrial Relations Mediation Act(hereinafter referred to as "TUIRMA") Addenda Article 5(3), the government has continuously gone through the unification of the bargaining channel to start the multiple trade unions. In businesses, however, in case of multiple trade unions permitted, not solely can the problem of the unification of the bargaining channel be brought up. Namely, in case of multiple trade unions permitted, the member of the full-time officer of a trade union, the problem of Union-shop, the adaptation of collective bargaining agreement(hereinafter referred to as "CBA"), unfair labor practices in discriminations between unions, etc, are expected to be occurred, like this, under the multiple trade unions, various actions, their unfair labor practices and other side effects could be a point at issue. So, this study went through the problems of convenience service, industrial actions, check-off among the problems under the multiple trade unions or the unification of the bargaining channel, as the follows are; First, the judgment of yes or no discrimination among unions should be depend on the existence of the duty of employer`s neutral intention and the reasonable discriminative reason made by employers, in field of the employer`s convenience service. Union office and Union`s bulletin board) under the multiple trade unions. Second, in case of being forced to unify of the bargaining channel under multiple trade unions, according to analogy interpretation of TUIRMA, it is desirable for only union which won the approval of majority in the concerned business or the member of all unions in business to take industrial actions. This is why it is desirable for the entire bargaining union members as the subject of industrial actions to take steps because the legally binding of CBA could affect all union members in concerned business. Third, in case of all multiple trade unions permitted in concerned business, it is more likely to be brought a legal act on the check-off. So, in labor law, a political examination must be necessary, including whether the regulation on the check-off should make obvious or leave it to the regulation interpretation on the unfair labor practices, TUIRA Article 81.

노조전임자급여규정과 관련된 법적 문제 -헌법과 미국노동법을 비교하여-

황경환 ( Kyong Hwan Hwang )
경상대학교 법학연구소|법학연구  17권 2호, 2009 pp. 217-243 ( 총 27 pages)
6,700
초록보기
Our government, labor union and management group have discussed when to enforce Trade union and labor relations adjustment act (hereinafter referred to labor union law) article 24(2) and article 81 subparagraph 4 which is presently enacted but delayed in the time of the enforcement. Trade union and labor relations adjustment act article 24(2) provides that Those who are engaged in duties only for trade unions in accordance with paragraph (1), which stipulates that If stipulated in a collective bargaining agreement or consented by employers, a worker may perform duties only for a trade union, without providing work specified in his/her employment contract. shall not be paid in any way by employers for the duration of their tenure. This article including article 81 subparagraph 4 which stipulates that no employer shall commit an act that dominate or interfere with the formation or operation of a trade union by workers and wage payment for full-time officials of a trade union or financial support for the operation of a trade union has been in the middle of intensive conflict between employer and labor union. This article is not effective until January 1st 2010 by addendum 1. Also the labor union law article 90 stipulates that A person who violates the provisions of Article 81 shall be punished by imprisonment up to two years, or by a fine up to twenty million won. The full time labor officers have received financial support from employer for long time in industry sector based on collective bargaining. Also the custom that full time labor officer receives salary from employer is very foreign case. The legislative branch made the law article 24(2) and article 81 subparagraph 4 so that it may develop labor reality and make maintain independence of labor union from management group. Rut the legislative system which prohibits full time union officer to receive salary from employer is very rare compared with other advanced country. Labor union group want to abolish article 24(2) and article 81 subparagraph4 and continue to keep current practice which allow full time officer to receive salary from management group which is opposition to labor union. This paper did not deal with the labor policy matter surrounding these law but reviewed the constitutionality of this law based on constitutional case holding due process of law, separation of power or the principle of the void -for- vagueness in statute. Also this paper mentioned US National Labor Relations Act to compare our labor law with US labor law. After study T reached a conclusion that the article 24(2) must be discarded because it does not have any legal power and only cause trouble in industry sector and article 90 also must be abolished by the constitutional principle such as due process of law which demands only that a law shall not be unreasonable, arbitrary, or capricious, and that the means selected shall have a reasonable and substantial relation to object sought to be obtained and article 81 subparagraph must be revised as erasing the part "employer give salary full time labor officer".
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