수험생 학부모가 낸 수능시험

박태서 (사)방송기자연합회 2011 방송기자 Vol.5 No.-

Cyberspace 에 관한 재판관할권 - 미국판례를 중심으로 -

박태신(Tae Shin Park) 연세대학교 법학연구원 2001 法學硏究 Vol.11 No.3

N/A

Postoperative Speech Outcomes and Complications in Submucous Cleft Palate Patients

박태서,배용찬,남수봉,강경동,성지윤 대한성형외과학회 2016 Archives of Plastic Surgery Vol.43 No.3

Background The postoperative speech outcomes of submucous cleft palate (SMCP) surgery are known to be poorer than those of other types of cleft palate. We attempted to objectively characterize the postoperative complications and speech outcomes of the surgical treatment of SMCP through a comparison with the outcomes of incomplete cleft palate (ICP). Methods This study included 53 SMCP patients and 285 ICP patients who underwent surgical repair from 1998 to 2015. The average age of the patients at the time of surgery was 3.9±1.9 years for the SMCP patients and 1.3±0.9 years for the ICP patients. A retrospective analysis was performed of the complications, the frequency of subsequent surgical correction for velopharyngeal dysfunction (VPD), and speech outcomes. Results In both the SMCP and ICP patients, no cases of respiratory difficulty, bleeding, or wound disruption were noted. Delayed wound healing and fistula occurred in 18.9% and 5.7% of the SMCP patients and in 14% and 3.2% of the ICP patients, respectively. However, no statistically significant difference in either delayed wound healing or fistula occurrence was observed between the two groups. The rate of surgical correction for VPD in the SMCP group was higher than in the ICP group. In the subset of 26 SMCP patients and 62 ICP patients who underwent speech evaluation, the median speech score value was 58.8 in the SMCP group and 66 in the ICP group, which was a statistically significant difference. Conclusions SMCP and ICP were found to have similar complication rates, but SMCP had significantly worse speech outcomes.

의료과오소송에서 증인인 담당의사의 신문 등에 관한 연구 -환자 측 소송대리인의 입장에서-

박태신 ( Tae Shin Park ) 홍익대학교 법학연구소 2015 홍익법학 Vol.16 No.1

For disputes over medical cares, litigations have been raised in order to pursue responsibilities of physicians, medical institutions and nurses, and have been increasing. In medical malpractice measures of doctors or medical institutions make patients disappointed and give patients physical and emotional damages seriously. But physicians who have been filed with medical malpractice lawsuits blame the patients due to the fact that they were judged with unsaticefied result by the patients nevertheless they made an efforts to provide proper treatments as an expert. With these reasons, medical malpractice litigations conflict seriously between the parties compared to common litigations, and is common that parties and litigation officials are caught up with the conflicts. Therefore, in process of accountability of a medical malpractice litigations, the parties need to decide emotional and rational determinations. Especially, it is very important to have proper attitude in examining the doctors in charge as a witness at the court. Therefore, this paper has examined what the patient`s attorneys should notice and consider when they examine the doctors in charge as a witness. And I examined the feature of lawsuits in cases the doctors in charge are the witnesses, and the preparations for the enforcement of the cross examins in medical malpractice lawsuits. I pointed out that the doctors as witnesses are different from a general civil litigation`s witness through this study. And it is noted that a patient`s attorney has to explore how to instill impressions of validity of the plaintiffs` claim in courts rather than cross-examination format by unilateral conflict relationship. Finally, I point out that a patients` attorneys have to examine evaluating evidence in courts and importance of advanced preparations for examinations of the doctors in charge.

채권자대위권에 관한 이해의 변화 모색 - 보전의 필요성 및 채무자의 무자력과 관련하여 -

박태신(Park, Tae Shin) 한국법학원 2021 저스티스 Vol.- No.186

종래 학설은 채권자대위권을 ‘본래형’과 ‘전용형’으로 구분하여 전자의 경우 보전의 필요성은 채무자의 무자력을 의미한다고 한 반면, 후자의 경우에는 보전의 필요성에 관한 별다른 언급 없이 채무자의 무자력은 요구되지 않는다고 하였다. 이는 전자를 (일반)책임재산보전제도로, 후자를 (개별)채권보전제도로 인식해 온 데에서 기인한 것으로 보인다. 그런데 대법원 2001. 5. 8. 선고 99다38699 판결은 ‘피보전채권과 피대위채권의 밀접한 관련성’, ‘피보전채권의 현실적 이행을 유효, 적절하게 확보하기 위해 필요한 경우’, ‘채무자의 자유로운 재산관리행위에 대한 부당한 간섭이 아닐 것’을 채권자대위권의 ‘보전의 필요성’ 판단을 위한 일반기준으로 제시하였다. 그리고 대법원 2020. 5. 21. 선고 2018다879 전원합의체 판결은 기본적으로 위 요건을 보전의 필요성 판단기준으로 제시하면서도, 피대위권리를 행사하는 것이 피보전채권의 현실적 이행을 유효, 적절하게 확보하기 위해 필요한지 여부에 관한 판단을 위한 고려요소로 ‘채권자가 보전하려는 권리의 내용’, ‘채권자가 보전하려는 권리와 대위하여 행사하려는 권리의 관련성’ 등을 언급하면서 ‘채무자의 자력 유무’는 피보전권리가 금전채권인 경우에 고려할 요소로 제시하였다. 이와 같은 일련의 판결들로 종래의 이원화된 채권자대위권의 보전의 필요성 판단기준이 통일적으로 제시되었으나, 위 전원합의체 판결은 피보전채권이 금전채권인 경우에는 여전히 채권자대위권을 (일반)책임재산보전제도로 인식하고 있는 것으로 보인다. 그러나 법해석의 목표나 현실적 필요성을 고려하면, 피보전채권이 일반금전채권인 경우에도 채권자대위권을 (개별)채권보전제도로 보는 인식전환이 필요한 것으로 보인다. Theories have divided creditor subrogation rights into ‘original type’ and ‘exclusive type’, and the former said that the necessity of preservation means the debtor’s insolvency, while the latter said that the debtor’s insolvency is not required without any particular mention of the necessity of preservation. It seems that the former has been recognized as a (general) responsible property preservation system and the latter as an (individual) claim preservation system. However, the 99Da38699 ruling(the Supreme Court sentenced on May 8, 2001) suggested ‘close relationship between creditor’s claim and subrogated right’, ‘when it is necessary to effectively and appropriately secure the actual implementation of creditor’s claim’, and ‘not unreasonable interference in the debtor’s free property management behavior’ as general criteria for judging the ‘necessity of preservation’ of the subrogation rights of creditors. Also, 2018Da879 the all consensus decision(the Supreme Court sentenced on May 21, 2020) ruled ‘close relationship between creditor’s claim and subrogated right’ and ‘the debtor’s insolvency’ as elements for judging whether the exercise of the subrogated right is necessary. With such a series of judgments, the conventional dualized criteria for determining the necessity of preservation of the creditor subrogation rights were unified, but the all consensus ruling above still recognizes the creditor subrogation rights as a (general) responsible property preservation system. However, considering the objectives and practical necessity of legal interpretation, it seems necessary to shift the perception regarding the subrogation rights of creditors to the (individual) claim preservation system.

산재소송에 있어서 안전배려의무와 관련한 요건사실 등에 관한 연구

박태신 ( Park Taeshin ) 연세대학교 법학연구원 2020 法學硏究 Vol.30 No.3

이 글은 산업재해소송(이하 ‘산재소송’이라고 한다)과 관련한 쟁점 중 하나인 안전배려의무 위반을 이유로 하는 손해배상청구소송에 있어서 청구원인에 기재하여야 할 요건사실 등에 관한 검토를 목적으로 작성된 논문이다. 이와 관련해서는 노동법학 측면에서의 업적보다는 실무자 또는 소송법학자의 노력 등에 의해 많은 논문을 읽을 수 있었다. 특히, 요건사실은 일본에서 독일의 영향을 받아 교육적인 목적을 위해 또는 실무적인 목적을 위해 만들어진 것으로 알려져 있고 민사소송의 운영을 실현하기 위해 우리나라도 마찬가지로 법원과 당사자 또는 소송대리인이 법정에서 “공통의 언어”로 사용하고 있다고 말할 수 있을 정도이다. 또한, 요건사실은 소송자료의 수집방향, 상담, 소제기 및 증거수집에서 소송의 종결에 이르기까지 지속적으로 유지 및 검토가 되어야 할 좌표기능을 하고 있을 정도로 실무상 중요한 테마에 해당한다. 따라서 필자는 요건사실을 검토하면서 개별적으로 산재소송과 관련하여 판례의 입장에 따라 안전배려의무 위반에 대한 책임을 묻는 소송에서 당사자가 주장하여야 할 각 요건사실을 살펴보았는바, 원고가 주장할 요건사실은 ① 원고와 피고 간에 일정한 법률관계가 존재할 것, ② 피고가 원고에게 구체적인 의무를 부담하고 있었던 사실과 그 내용, ③ 피고가 그 의무에 위반한 사실, ④ 원고에게 손해가 발생한 사실, ⑤ 위 ②, ③의 의무 위반과 손해 발생 간에 인과관계가 존재하는 사실, ⑥ 구체적인 손해액을 주장·입증하여야 할 것인 반면, 피고가 항변할 요건사실은 ① 귀책사유의 부존재, ② 소멸시효, ③ 과실상계, ④ 산재보험의 급부를 중심으로 서술하였다. 또한, 안전배려의무와 관련하여 산업안전보건법 5조 1항 3호 및 25조 이하 등에서 안전배려의무에 관하여 명문의 근거규정을 구비하게 된 이상, 그것이 요건사실의 관점에서 어떠한 의미를 가지는지도 유념하면서 안전배려의무와 관련된 요건사실을 다시 검토할 의미가 있는지 여부도 생각하여 그에 대한 배려도 하였다. 또한, 위와 같은 내용을 연구할 때 안전배려의무를 둘러싼 요건사실에 관하여 우리나라 및 일본의 입법 또는 판례의 축적을 근거로 검토하여 좀더 내실이 있는 연구가 될 수 있도록 노력하여 민사소송의 측면에서 산업재해소송 중 안전배려의무 위반을 이유로 한 손해배상청구소송을 할 때 필요한 요건사실을 연구하였다. This thesis is written for the purpose of reviewing the facts of the requirements to be entered in the cause of the claim in a claim for damages due to the violation of the duty of safety consideration, which is one of the issues related to industrial accident litigation. I was able to read many papers through the efforts of practitioners rather than achievements in the aspect of labor law. In particular, the facts of the requirements are known to have been made for educational or practical purposes under the influence of Germany in Japan, and to realize the operation of civil proceedings, the courts and litigators say that they are “common language” in the courts. In addition, the fact of the requirements is a coordinate function that must be continuously maintained and reviewed from the collection direction of litigation data, counseling, filing, and evidence collection to the conclusion of the litigation. Therefore, while reviewing the facts of the requirements, in relation to industrial accident lawsuits, in accordance with the position of precedent, I have looked at the facts of each requirement that the parties must assert in a lawsuit that demands responsibility for the breach of safety consideration obligations. The facts that the plaintiff will claim are ① that there must be a certain legal relationship between the plaintiff and the defendant, ② the fact that the defendant had a specific obligation to the plaintiff and its details, ③ the fact that the defendant violated the obligation, ④ damage to the plaintiff The fact that occurred, ⑤ the fact that there is a causal relationship between the breach of obligations ② and ③ above and the occurrence of damages, and ⑥ insist on a specific amount of damage must be verified. On the other hand, the defendant described the facts of the requirements to be defended by ① the absence of reasons attributable, ② extinctive prescription, ③ settlement of negligence, and ④ industrial accident insurance benefits. In addition, as long as the Occupational Safety and Health Act Article 5Ⅰⅲ and Article ⅡⅩⅢ has established a prestigious basis for safety consideration obligations, it is also possible to determine what meaning in terms of requirements and facts. Keeping in mind, we considered whether it would be meaningful to re-examine the facts of the requirements related to safety consideration obligations, and we considered the review. In researching the above, the fact of the requirements surrounding safety consideration obligations is reviewed on the basis of the accumulation of Korean and Japanese legislation or precedents. We reviewed the facts of the necessary requirements in a lawsuit for claiming damages for violation of safety consideration obligations.

정신장애인의 자기결정권과 행위능력 -일본의 성년후견제도를 중심으로-

박태신 ( Tae Shin Park ) 안암법학회 2008 안암 법학 Vol.0 No.27

Nowadays discussion on human rights are focused on the infringement of human rights of the weak by the socially strong persons and social discrimination. Also, the trend of understanding the human rights as the self-realization is getting stronger. Therefore, the concept of the self-determination right and the self-expression right has come to bear a very significant meaning, and in fact it is keenly needed for the disabled, females, foreign immigrants, HIV-positive persons, etc. to overcome social discrimination and human rights infringement and to promote self-realization while making themselves stay in a clear position. Therefore, new legal structures have emerged in various types according to the new ways of thinking about the human rights in such circumstances, and thus it may be said that the relationship between the self-determination right and the legal capacity system of the mentally disabled persons belongs to a very significant subject. Particularly in such a system of making massive production of the uniform and legally incompetent persons like ours, it becomes inevitable to have a large number of subjects that are to be discussed more in the systematic and ideological dimension. Therefore, as a premise for understanding the realities of the Korean system for the legally incompetent persons, the author has conducted a study specifically on the Japanese adult guardship system which makes it possible to take flexible as well as elastic measures in compliance with the degree of everyone`s diversified power of judgment and necessity for protection in order to make the ideology of "respect for sekf-decision" harmonized with the ideology of "protection of oneself" among examples of legislation in foreign countries, and has prepared this writing so that a constant direction may be presented in order to realize the constitutional ideology of human dignity when our civil law will be amended in the future. In other words, as the system for the legally incompetent persons is based upon the modern thought of the 19th century, it has inherently apprehensions of consequently being contrary to the constitutional ideology of a welfare state, so to speak, unconstitutional traits without being conforming to modern legal sense and it has the problem of being a system with too much emphasis on property management rather than on inheritor protection and physical custody. Therefore, it is emphasized that the enactment of the adult guardship law of a new type in consideration of the protection of the disabled of socially weak persons together with completing throughly of the respect for self-determination right, ideology of generalization and respect for survival ability as seen to be the most important ideologies in the modern society while recognizing the problems of the current-effective system for the legally incompetent persons by changing the basic ideological foundation which is existing in the system for the legally incompetent persons, and through doing this, a systematic foundation to protect the disabled of the insufficient ability of judgment is to be set up, and thus ① it is to become an easy system for people`s use in order to promote social welfare fully for the intellectually or mentally disabled persons, ② a system conforming to the Korean economic, cultural and social environment is to be induced through a comparative review while recognizing the presence of the problem of low-level utilization because the currently effective system for the disabled persons is a system that is equally depriving the legal capacity, ③ efforts will have to be made to improve the method of public notices, etc. because, notwithstanding the concerned person, all the family members will not like the current system where all sentenced facts are being publically noticed by making them recorded in the family register.

성년후견과 관련한 개정 민법 및 외국의 법률 등에 관한 연구

박태신 ( Tae Shin Park ) 홍익대학교 법학연구소 2012 홍익법학 Vol.13 No.4

The Part of the Civil Code Amendment Bill was passed 2011.2.18. by the National Assembly, promulgated 2011.3.7. by the President and it shall be im- plemented from 2013.7.1. The provisions that was revised, established or abolished in this time are 130 provisions about the Civil Code general rules, the law of a kinship and inheritance. The contents of a core in this amendment are the contents relevant to abolition of a disability person system and introduction of the adult guardianship system. Taking of the institutional base which can make the protection of elderly people, a mentally handicapped person etc. through this amendment will be stepped forward. Especially, the importance of the responsibility of the state with reference to their welfare and human rights will be emphasized through the change of the above systems used the new sense of values for elderly people`s protection as the foundation. Then, this amendment of the Civil Code was materialized in the result. What will happen to the position of an adult guardianship system in the world? In this paper, the position which an adult guardianship system occupies has been investigated through legislation of advanced nations. Although it is said that an adult guardianship system is made from a legal system into our country, the favorable enforcement could not be collateralized only by the provisions on Civil Code. Therefore if the new legislation which can fill up Civil Code is not carried out and if we don`t examine the problems which have been appeared at the foreign adult guardianship act in the meantime, it cannot deny that many problems may be repeated in our country similarly. So I have compared and examined the contents of the adult guardianship system enforced in each country, looking around the legislation background of the adult guardianship system of South Korea that will be enforced from 2013.7.1. And when an adult guardianship system will be enforced in our country, this paper was created in order to help as substantial in the legislation related so that the trial and error may occur might not be repeated.

소송능력(訴訟能力)에서의 「능력」개념의 재검토를 위한시론

박태신 ( Tae Shin Park ) 홍익대학교 법학연구소 2014 홍익법학 Vol.15 No.3

At first admissibility of a party and person concerned elligibility are necessary for suitand litigation ability is necessary so that the person concerned participates in direct suit. By the way, common view understands that the litigation abilitiy agrees with the legalcapacity in civil law but the few theory understands that the litigation ability agrees withthe capacity for enjoying private right. The above difference is largely attributable tomaking head or tail of the litigation ability as the means of settling civil disputesregardless of the issues. However, the case that can not make out the litigation abilityas the legal capacity according to the change of the system such as adult guardianshipsystems occurs. And the precedents understanding the litigation ability as mentalcapacity in the situation appear in the foreign country. Therefore, I think that it will benecessary to examine discussions about litiagtion ability to realize intention and the legalcapacity in conventional civil law, to retroact again, to go up this and the problem tobe concerned with from the origin, and to review the thing. So I made this article toarrange a future study direction by examining the suit ability theory. Now I have begunthe study of litigation ability for civil law and civil procedure.

일부청구(一部請求) 및 그 관련문제에 관한 고찰

박태신 ( Tae Shin Park ) 법조협회 2003 法曹 Vol.52 No.1