컴퓨터 법에 있어서의 책임에 관한 연구

鄭鎭世,鄭在晃,方碩皓,河泰勳,李成德,崔鳳哲 홍익대학교 1995 弘大論叢 Vol.27 No.-

This paper, coauthored by Chin-Se Chung, as well as other 5 faculty members at Hong-Ik University Department of Law (Jea-Hwang Jeong, Suk-Ho Bang, Tae-Hoon Ha, Seong-Deog Yi and Bong-Chul Choi), deals with liability issuses surrounding constitutional law, administrative law, civil law (contracts, torts), commercial law, criminal law, international law and philosophy & law. Professor of Law Jea-Hwang Jeong makes a comparative analysis of privacy protection and disclosure of information legal issues, appeared at current Korean law and draft of law in case of the latter one. He suggestes some desirable ways of legislation through revision process and operation of legal rules at his paper. Professor of Law Suk-Ho Bang makes a brief survey of civil liability issues arising out of contracts and torts in English and American law, first. He tries to show that many Parts of arguments in such legal world are attributed to Statute of Frauds tradition, unique to such legal world. New developments in the area of torts, including computer malpractice and computer virus, are shown and analysed in terms of application possibility under our current law. But, as even the Anglo-American courts are found very reluctant to accept those arguments as new grounds for torts liability, it seems more plausible and practicable to refer to contractual approach, basically, rather than to torts approach even under English American law. Professor of Law Chin-Se Chung suggests in his paper on EFT that the allocation of liability under EFT be made under the new and most relevant principle, working for useful transmission way of fund, not solely under traditional legal principles. If such new principle works with high return of risk to users, it makes imminent problems against the goats of consumer protection, and eventually will be hardly refered to. Conversely, if it requires too much sacrifice from the side of banks, then the convenience in such system will not be utilized. So, it may be natural that EFT be discarded even without proper functioning under market system. In conclusion, Professor Chung points out that, only when banks fond that the economy out of cost-saving at tasks outweighs the risk undertaken by the banks, the banks will operate the system. But, if this system makes more return of benefits to the banks with the burden of users, it is against the idea of equity. Consequently, the banks should bear the aggeviated risks in return for the cost saved under this system Professor of Law Tae-Hoon Ha focuses his research paper on criminal liability under EFT. He draws his conclusion out of current criminal statutes that illegal fund transfer under automatic teller machines, cash cards and information system can not be penalized due to lack of proper statutory provision. So, the criminal provision on computer crime, newly made on December of 1995, can be positively appreciated. But, he anticipates that the question whether such new provision will be successful in regulating all illegal activites at fund transfor system without any operation defects in criminal code, or will cause new problem in interpretation of criminal code remains unsolved. Professor of Law Seong-Deog Yi examines the international legal issues which may be given rise to by direct satellite broadcasting. In his paper, the issue of national jurisdiction in relation to direct satellite broadcasting is firstly dealt with. Secondly, the possible ways in which direct satellite broadcasting is regulated by international law are examined with special emphasis of two different approaches, that is, freedom of information approach and state sovereignty approach. In this context, many international conventions concerning direct satellite broadcasting in Particular, and international regulatory regime of outer space in general are broadly reviewed. Thirdly, the types of activities which may be a violation of international legal regime of direct satellite broadcasting are suggested and the possible lethal remedies for these violations are proposed with the traditional international state responsibility law in mind. Professor of Law Bong-Chul Choi explores the relations of computerized society to its laws throughout his paper as a kind of conclusion of this whole paper. Computerized society is one that the technical, scientific, informational knowledge prevails. With correspondence to the structural change in knowledge, the law of such a society has suffered transformation, and the knowledge and techniques distributing and computing legal responsibility has also changed. However, he does not insist that the diffusion of technical knowledge is the sole factor of the transformation of legal responsibility. It is only one of the various factors. Moreover, he does not deny the continuation between the classical techniques distributing legal responsibility and the contemporary ones. In this era, the law realizes fairness and community values at the expense of singularities. In addition, he proposes that legal scholars take the diagnosis of law from the perspective of the technology/knowledge shifts seriously.

환경문제에 대한 전통국제법이론의 적용한계 : 책임에서 규제로

李成德 홍익대학교 1996 弘大論叢 Vol.28 No.-

This paper examines the limits of applicability of the State responsibility theory on environmental issues. Under international law, environmental issues have been dealt with from the perspective of the State responsibility theory, when environmental damages occurred. But this approach has many shortcomings. Thus, it is disirable to think of another method to secure the protection of the environment. My argument is that compensations after envirnmental damages occurred, is inappropriate because it is not only difficult but also insufficient to claim the international state responsibility in case of environmental damage cases, due to the facts that, first of all, it is not easy to prove that losses have been incurred through a specific environmental accident and secondly, even if compensation could be awarded, it would not cure the result of environmental damages perfectly. Therefore, if we presuppose that the World environment should be preserved in a reasonably good condition in order for contemporary and future generations to enjoy a good environment, international law should find out another method to preserve our environment. The method, I propose, is the regulatory system which can be accomplished through international cooperation between States. This regulatory system can be established through the treaty-based system. Under this main perception, in part II of this paper, the applicability and its limit of the State responsibility theory in environmental issues were first dealt with. They include the development of the State responsibility theory in conjunction with environmental issues and the subject relating to international liability for injurious consequences arising out of acts not prohibited by international law. In part III, the proventive regulatory system for environmental protection is considered. In this regard, the philosophical foundations -shared resources concept and the common concern of mankind- for the preventive environmental protection are first discussed. And, many practical tools -ranging from notification to environmenatal impact assessment- for preventing environmental damages, which are provided in the major environmental treaties, are reviewed.

유럽공동체법에 있어서 선결적부탁절차의 역할

이성덕 홍익대학교 법학연구소 2004 법학연구 Vol.6 No.-

This paper reviews the preliminary reference procedure of the European Community. This procedure is a distinctive judicial procedure from other domestic legal systems. It is a procedure which functions very similar to the appeal procedure in a domestic judicial procedure. The purpose of the preliminary reference procedure is to make the Community law uniform throughout the Community. The uniformity of Community law would be achieved better if the Community has a single highest court which can receive appeals from the courts of the Member States. But the European Community is not an entity to have such a strong judicial system. That is why it adopted the preliminary reference procedure instead of the appeal procedure. Although the preliminary reference procedure is not as strong measure as the appeal system, it contributed to the uniform application of the Community law. In particular, the ECJ developed very important legal doctrines which are twin pillars of the Community law, so called, direct effect and supremacy of the Community law. Through these two doctrines which were developed by the preliminary procedure, the Community could achieve the integration of the Community.

핵무기 위협 또는 사용의 적법성에 관한 국제사법재판소 권고적 의견에 대한 비판적 검토

李成德 홍익대학교 법학연구소 2000 법학연구 Vol.2 No.-

This paper reviews the legality of threat or use of nuclear weapons based on the two advisory opinions made by the International Court of Justice (ICJ) in 1996. The first one which was requested by the World Health Organization(WHO), was rejected by the ICJ on the ground that the request for an advisory opinion was submitted by an organ which had not the competence to do so. And the other was requested by the U.N. General Assembly. In the face of the request for an advisory opinion by the U.N. General Assembly, the ICJ answered in its operative parts of the advisory opinion that: (2) A: There is in neither customary nor conventional international law any specific authorization of the threat or use of nuclear weapons. (2) B: There is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such. (2) C: A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4, of the United Nations Charter and that fails to meet all the requirements of Article 51, is unlawful. (2) D: A threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict, and in particular those of the principles and rules of international humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons. (2) E: It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law; However, in view of the current state of international law, and of the elements of facts at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful of unlawful in an exterme circumstance of self -defence, in which the very survival of a State would be at stake. (2) F: There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control. To me, the opinions expressed in (2) A, B, C, D, F are correct but it is dubious whether the opinion expressed in (2) E is right, I think that the ICJ could have investigated more factual aspects related to the threat or use of nuclear weapons and then it could have reached a more decisive and clear-cut conclusion.

사례를 통하여 본 인도적 간섭 : 국제법적 적법성 Its International Legality

이성덕 홍익대학교 법학연구소 2003 법학연구 Vol.5 No.-

One of the hot issues in international law is whether the unilateral humanitarian intervention is lawful or not. There are many cases which are alleged to be the humanitarian intervention. And some argue that it is lawful under the international law. In this paper, we reviewed the backgrounds of cases which are argued to be the humanitarian intervention. Almost all of the cases reviewed have not only humanitarian but also other political and social elements. And also, it is found that the concept of the humanitarian intervention varied. That means that the humanitarian intervention has been invoked to justify certain purposes which are not defined consistently and objectively. If a legal principle is to be accepted as a binding rule, it does have to have objective criteria to be applied. But up to now, we do not find out the objective criteria which may be applied in the case of humanitarian Intervention. Thus, the humanitarian intervention, although it does have a moral imperative, may be abused to justify other political objectives. For the time being, it could be much safer to regard the unilateral humanitarian intervention as illegal under the international law. By doing so, it would be possible to restrict the use of force in the international community.

Pilocarpine 및 Atropine이 토끼의 악하선 혈류랑에 미치는 영향에 관한 연구

이종율,손성희,이종흔 대한치과페리오학회 1975 大韓齒周學會誌 Vol.5 No.1

상황이야기 중재효과에 대한 메타분석

이성용,강영택,이정현 국립특수교육원 2012 특수교육연구 Vol.19 No.1

상황이야기 중재는 자폐증 및 발달장애학생의 사회적 기술과 지식을 증가하기 위하여 활용되는 효과적인 교수전략이다. 본 연구는 상황이야기를 중재로 활용한 국내 실험연구들을 메타분석 함으로써, 상황이야기 중재의 효과성을 검증하고 앞으로 효과적인 사회성 기술 교육 프로그램을 개발 및 적용하는 데 필요한 기초 자료를 제시하고자 하였다. 이를 위해 지금까지 국내에서 발표된 상황이야기 중재와 관련된 논문을 조사하고, 분석 논문 선정 기준에 따라 국내 13편의 실험 논문을 최종 분석 대상으로 선정하였다. 본 연구의 메타분석은 3가지 분석 영역에 따라 총 7개의 분석변인(연구대상, 실험환경, 실험설계, 중재유형, 목표기술, 중재효과, 유지 및 일반화 효과)으로 분석하였다. 우선 메타분석의 결과를 살펴보면 상황이야기 중재효과는 전체적으로 중간 크기의 효과를 보였으며, 유지와 일반화는 큰 효과가 있었다. 본 연구의 분석결과는 7개의 분석변인에 따라 구체적으로 제시하였으며, 그 결과는 상황이야기 중재와 효과적인 교수기법을 의미하는 근거기반 실제의 관점에서 논의하였다. The social story is effective intervention strategies for addressing social communication skills, social interaction skills, and behavioral functioning in children with ASD and developmental disabilities. The purpose of this study was to meta-analysis the research literature of social story interventions of children with ASD and developmental disabilities and to provide information and suggestions on social story interventions for future research and practices at schools. A systematic search of the literature from 1993 to 2011 revealed 13 experimental studies published in special education within South Korea. This study analyzed the 13 selected studies in terms of 7 analytical variables: participants, research settings, experimental design, target skills, type of intervention, effects of intervention, maintenance and generation. In particular, results indicated a moderately positive effect for social intervention (mean ES ≤ .80, median PND = 85%). Maintenance (median PND = 100%) and generalization effects (median PND = 100%) revealed large effects. The findings of this study were described in detail based on the 7 analytic variables. The implications of the findings and recommendations for practice and future research on social story interventions were presented.

유럽공동체법상 회원국에서의 유럽공동체법 이행확보제도에 관한 연구

이성덕 弘益大學校 法學硏究所 2005 법학연구 Vol.7 No.-

This paper examines the judicial system for enforcing the European Community legal order. The Community legal order consists of the Treaty establishing European Community (hereinafter the Treaty), the Community treaties, the mixed agreements and the acts of the Community institutions. In particular, according to Article 249 of the Treaty, the acts of the Community institutions can be classified into four categories, i.e. regulation, directive, decision, and recommendation and opinion. In this paper, the effects and legislative procedure for these acts are briefly reviewed. And then, the judicial system to enforce these Community acts are examined. The judicial system which was examined is the enforcement action, the action for failure to act, the direct annulment action and the preliminary reference procedure. In sum, the best method to enforce the Community law is to allow the vigilant individuals to watch out whether the Community law is observed by the addressee of the relevant Community law. The enforcement action and the action for failure to act are available only to the limited category and the requirements to use these procedure are quite cumbersome to fulfil. And the direct annulment action is in a way very effective to enforce the Community law. But it has weak points in allowing individuals to use this procedure. Only very limited category of individuals may institute legal proceedings under this procedure. The most effective way to enforce the Community law, I suggest, is to use the preliminary reference procedure. Under this procedure, if individuals bring an action before a national court based on the Community law, then the national court may or shall refer the Community law matter to the European Court of Justice(ECJ) for a ruling. In the ruling, the ECJ can affirm the contents of the Community law, that in turn contribute to enforce the Community law.

유럽공동체법상 직접취소소송제도의 재검토

이성덕 홍익대학교 2007 홍익법학 Vol.8 No.1

유럽공동체의 사법제도 가운데 유럽공동체설립협정 제230조가 규정하고 있는 직접취소소송제도를 살펴보는 것이 본 글의 목적이다. 일반적으로 회원국이나 유럽연합기구의 조치나 행위가 일정한 사유,특히 유럽공동체법 위반에 해당하는 경우에 협정 제230조에 규정된 기구나 사인은 제 230조에 근거하여 해당 행위나 조치의 취소를 구할 수 있다 이러한 직접취소소송제도를 운영하는 과정중에 특히 문제되는 부분은 직접 취소소송을 제기할 수 있는 원고적격을 갖는 자들의 범위,특히 사인이 직접취소소송을 제기하는 경우 어느 범위까지 원고적격을 인정할 수 있는지의 문제 및 직접취소소송을 통하여 공동체 행위의 적법성을 다틀 수 있는 근거로서 유럽공동체법에는 어떠한 것들이 포함될 수 있는 지 등과 관련한 것 등이라고 할 수 있다. 유럽사법재판소는 사인에게 직접취소소송을 제기할 수 있는 원고적격을 인정하는데 있어서 약간 제한적인 입장을 취하고 있는 듯 보여진다. 이러한 점은 유럽공동체법의 이행 감시자로사 사인의 역할을 축소하는 측면이 있다고 보이므로,보다 강력한 법의 지배를 달성하기 위하여서 사인의 원고적격을 인정함에 있어 보다 적극적인 입장을 취할 필요성이 있다고 판단된다 또한, 직접취소소송을 제기하기 위한 법적인 근거에 직접효력이 없는 국제조약은 배제하고 있는데, 이 점은 국제조약을 유럽공동체법의 일부로 받아 들이고 있는 입장과 일치하지 않는다고 판단된다. This paper reviews the European Community's direct annulment actions. First of all, it surveys the requirements to bring an annulment action based on the Treaty provisions and the ECJ's case law. The most difficult issues involved with the requirements are i) against what measures ii) who may bring an action. According to Article 230 of the EC Treaty, a Member State, the European Parliament, the Council, the Commission may bring an action without any limitations against regulations, decisions and directives and other acts sui generis which have binding forces; the Court of Auditios and the European Central Bank may bring an action against measures for the purpose of protecting their prerogatives. In addition to this, a natural or legal person may institute proceedings against a decision addressed to that person, or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former. In this paper, I tried to elucidate the concepts of a decision in the form of regulation and the direct and individual concern provided in Article 230.

국제사법재판소 관할권에 관한 선택조항 수락선언에 대한 유보의 종류와 그 국제법적 효력

이성덕 弘益大學校 法學硏究所 1999 법학연구 Vol.1 No.-

This paper reviews the validity of various reservations included in the declarations of acceptance of the Optional Clause provided in Article 36 of the ICJ Statute. There are a wide variety of types of reservations in the declarations of accepting the compulsory jurisdiction of the ICJ. They are reservations as to domestic questions(including the so-called automatic reservation); reservations concerning disputes under multilateral treaties; reservations excluding past disputes; reservations concerning other means of pacific settlement; reservations concerning disputes under the consideration of the Security Council; reservations concerning disputes between the British Commonwealth; reservations of a right to modify declaration by giving notice; reservations excluding disputes not arbitrable under the municipal law; reservations excluding disputes between States having no diplomatic relations; reservations excluding disputes with a State which filed declaration for a particular dispute or only a little time prior to the submission of the dispute; reservations excluding disputes concerning belligerency; reservations excluding disputes already submitted to other method of arbitration; reservations concerning the duration of the declaration. Among them, the most problematic reservation is the automatic reservation. This type of reservation seems to invalidate the object and purpoase of the Optional Clause system. And also it is hopeful that States refrain from adopting other types of reservations which limit the compulsory jurisdiction of the ICJ subjectively in order to establish the objective jurisdiction of the ICJ.