반응성구조체의 고속충돌에 따른 온도분포 분석

정상현,조수경,배광태,이기봉,Jung, Sang-Hyun,Cho, Soo Gyeong,Bae, Gwang Tae,Lee, Kibong 한국군사과학기술학회 2017 한국군사과학기술학회지 Vol.20 No.5

The temperature profiles upon high speed impact of reactive structural materials were analyzed. A two color pyrometer, which included high-speed camera, spectral splitter, and band pass filters, was utilized to measure transient temperature profiles during and after reactive metal samples impacted into steel plate with velocities of 1600~1700 m/s. The spatial temperature distribution was analyzed from the ratio of spectral radiances at two different wavelength in infrared zone, i.e. 700 and 900 nm. The measured temperatures were calibrated with black body source. Two different types of metal samples, namely aluminum and nickel, were employed to understand reaction behavior upon the impact of samples in ambient condition. According to our experiments, the Ni sample appeared to barely react with ambient air producing an instant small fireball, while Al sample reacts violently with air generating a relatively prolong fireball.

하나의 관리도로 공정 평균과 분산의 변화를 탐지하는 절차

정상현,이재현,Jung, Sang-Hyun,Lee, Jae-Heon 한국통계학회 2008 응용통계연구 Vol.21 No.3

Two control charts are usually required to monitor both the process mean and variance. In this paper, we introduce control procedures for jointly monitoring the process mean and variance with one control chart, and investigate efficiency of the introduced charts by comparing with the combined two EWMA charts. Our numerical results show that the GLR chart, the Omnibus EWMA chart, and the Interval chart have good ARL properties for simultaneous changes in the process mean and variance.

離婚으로 인한 財産分割請求權의 法的 性質과 相續의 認定 與否에 대한 法理 再檢討(下)

정상현(Jung Sang Hyun) 성균관대학교 비교법연구소 2006 성균관법학 Vol.18 No.3

This article is connected with the former serials of the last term. It deals with the matters to divide matrimonial properties at the time of divorce, the object of properties to divide, concrete method and ratio of division and so on. Especially in judicial precedents, there is the matter concerned with the distinction to the portion of properties to be succeeded or not. By the way, that matter is able to be solved according to the conclusion that right of the claim for the division on matrimonial property is what for the substantial liquidation of co-ownership(husband and wife) or maintenance for a piteous party after divorce. The general views and judicial precedents have brought out of the standpoint that the right of claim for the division on matrimonial properties have double characters of the substantial liquidation of co-ownership and the maintenance for a piteous party after divorce. And they emphasize that the legal character of the right of claim draws an inference from two elements, liquidation and maintenance. On the other hand, they also insist that the amount of liquidation among the properties divided at the time of divorce is able to be succeeded, the amount of maintenance is not. But such interpretation has a big error. It cannot explain that how is the one right able to have the dual characters at the same time such as liquidation and maintenance, and that if the amount of liquidation is able to be succeeded and the amount of maintenance is not, whether the single right of claim for the division of matrimonial property on the whole is able to be succeeded or not. Even though the possibility of succession has been determined with due consideration of the liquidation or maintenance, according to various precedents continually be accumulated from year 1991, there are no precedents to decide separately the part of liquidation and the part of maintenance. Consequently, I think that the theories and precedents have to unify the one character for a liquidation or maintenance in concerned with the legal character of the claim for the division on matrimonial property, and that especially precedents should give a decision to separate plainly the part of liquidation and the part of maintenance at the time of division the matrimonial property. It is appropriate view that the legal character of the claim for the division of matrimonial property is to liquidate cooperating properties of married couple at the time of divorce on the ground of husband"s and wife"s contribution to properties. Therefore, I think that the right of claim should be succeeded, if the claimer is dead. Needless to say that the maintenance for wife who is wanted a economical ability after divorce should be considered separately such as a legislative policy for the protection of women. One step forward, I hope to point out several mistakes on the Article 839-2 of the Korean Civil Code. It provides that (1) one of the parties who has been divorced by consent may claim a division of property against the other party(para. Ⅰ), (2) if any consent is not made for a division of property as referred to in paragraph I, or if it is impossible to reach a consent, the Family Court shall, upon request of the parties, determine the amount and method of division, considering the amount of property acquired by cooperation of both parties and other circumstances(para. Ⅱ). (3) the claim for division of property as referred to in paragraph I shall be extinguished at the expiration of two years from the day of divorce(para. Ⅲ). However, it is too abstract for ours to decide an extent of properties be devised and to select a concrete method, standard and ratio for the division of matrimonial property. Therefore, I propose to make some changes a writing materials as like ""property acquired by cooperation of both parties "", ""the amount and method of division"" and ""o

책임능력(責任能力)있는 미성년자(未成年者)의 부법행위(不法行爲)에 대한 감독자책임(監督者責任)의 근거재해석(根據再解釋)

정상현 ( Sang Hyun Jung ) 법조협회 2001 법조 Vol.50 No.8

不動産 名義信託法理의 基礎 序說

정상현(Jung Sang-Hyun) 성균관대학교 법학연구소 2005 성균관법학 Vol.17 No.2

The nominal trust theory of real estate is originally developed through the judicial precedents. Especially, under the rule of Japanese imperialism, the clan could not register the real estate with its own name, because it had not a judicial personality. Therefore a real estate of the clan must had been registered in the name of its a member or members. By the way, many disputes took place in relation to clan's properties, for the reason that the nominal member disposed the property without the permission of the whole members. For the purpose of a solution to those problem, judicial precedents had contrived a following new theory. This theory is that both parties of agreement compose with two parts ownership on the real estate, that is to say, the internal ownership and the external ownership. The internal ownership is held by a nominal truster who is registered in his own name, and external ownership is granted to nominal trustee who possess the property substantially. And even though the nominal trustee, as external owner, dispose of the object to the another person without the internal owner's permission, the another person can acquire the ownership of the object valid. Merely in era of Japanese imperialism, the judicial precedents judged erroneously that this theory had consisted as a general principle of law in Korea. But that theory had existed neither in Korea nor in Japan. On the contrary it had been abused to destroy the ground of clan's property by the government of Japanese imperialism. By the way, more serous problem is that the theory is maintained by judicial precedents at the present time. It carries on false transaction deed and its application to the large extent brings about many legal problems in the modern era, such as land speculation, tax dodging and evading law, etc. Expecially, the theory of nominal trust and the intermediate abbreviated registration are not conformed to the formalistic registration system of Korean civil law. Therefore Korean government revised the partial provision of the act of inheritance tax(1974), and legislated the act of special measures of registration(1990) in order to eliminate unconformed registration, and the act of substantial named registration(1995) to restrain from unlawful agreement by nominal trust. Consequently, this paper dealt with following points at issue. That is to say, the history and legal background of nominal trust theory, the rearrangement of various types on the nominal trust agreement, and the analysis on contents of the act of substantial named registration(1995) under the topic of present legal problems and betterment on the future, etc. Together with those points, there are still existent the problems on the effect of nominal trust agreement and on the return of nominal entrusted properties. Merely, these problems will be dealt through the my another paper.

許可 없는 土地去來契約의 效力에 관한 法理 小考

정상현(Jung Sang-Hyun) 성균관대학교 법학연구소 2004 성균관법학 Vol.16 No.1

For restraint the speculative trade of real estate in particular area, Article 118 of Program and Utilization for National Land Development Act provides that one who shall buy or sell the land must be acquire the gourvernment's pemnssion. It also provides that the land transaction contract without such pemrlssion should be ineffective. However the general view and judicial precedents have interpreted the Article based on the Doctrine of Floating Void. Under tills doctrme, a party could not demend the performance of the obligatIon, because pnor to the pemnssion, the contract does not canry It into effect. As legal obligations, the contracting parties must cooperate for getting the pemrlssion. If the pemnssion is granted, the contract shall become valid definitely. But this doctrine CaJmot bar effectively any speculative trades. Moreover it is a theoretical repugnance that the legal duty of cooperation for getting the pemrlssion IS based upon the valicl1ty of contract, while the contract Without pemnssion is null and void Therefore it is appropnate view that the contract Without pemrlssion is valid, provided that Its effect ought to be suspended until the acquisition of pemrlssion. Tills article suggests that the pemnssion for land transaction is the legal provisional concl1tion, and the legal duty of cooperation for getting the pemrission ought to be recognized from the provisional vallcl1ty of contract. Also suggests, the contract carnes It into effect definitely when the legal provisional condition(pemrlssion) is fulfilled, and therefore the obhgations of contractant, such as payment and registration, are actualized by the acquisition of permission. Furthermore the legal foundation of a cooperative duty, for the applications of permission and registration, based on the Article 148 of Korean Civil Law referring to prohibition for infringement of conditional right and Article 150 referring to prohibition for the anti-fidelity behaviors of contractant in acquisition of contraction.

離婚으로 인한 財産分割請求權의 法的 性格과 相續의 認定 與否에 대한 法理 再檢討(上)

정상현(Jung Sang-Hyun) 성균관대학교 법학연구소 2006 성균관법학 Vol.18 No.1

  This article deals with the legal character of the claim for the division of matrimonial property, and with the possibility of succession on the property divided. The division of matrimonial property is a very serious problem to married couple at the time of their dissolution, and practically a large number of judicial precedents in connected with this problem have accumulated already. Therefore this research divides two articles for the arrangement of various theory and precedents. In this serial number, I publish the first article which includes general contents on the right of claim for division of the matrimonial property, legislative background of provision in connected with the right in the Korean Civil Code(the fallow as KCC), and matters on legal character and succession of the right of claim. The second article will be published in next serial number, and it should include the decision of subject, concrete method, standard and ratio for division of matrimonial property, especially in judicial precedents, the matters concerned with the way to distinguish the portion of property which is able to succeed from is not able to.<BR>  I think that several following points have to make a study further detail in this article.<BR>  The origin of family is a that of property, and the relation of husband and wife is the same means as the economical organization. The matrimonial property is the essential qualities of family life, and it is a very important matter of the family law who possess the property have been acquired in married period. In spite of that matter"s seriousness, in Korea, for some past time, the problem of properties possession have not been discussed at all. As a matter of course, the matrimonial properties that even had been possessed to wife since the wedding time and have been acquired in married period belong to the husband in essence as well as in outward form, because in a large percentage of married couple, most of wives have not economic and social independence from husband"s management and guardianship under the "Patriarchal System".<BR>  But the present days, the legislative matter to regulate the matrimonial property rise to the surface by reason of improvement of wife"s economic position in family. Therefore the KCC has "the Matrimonial Property System" ever since the time of its establishment, and it separately had provisions that is able to regulate the possession of properties from contract of husband and wife, and otherwise to regulate by statutory. The former calls "the Contractual Property System"(KCC Sec. 829) and the latter calls "the Legal Property System"(KCC Sec. 830 and the following). Merely in Korea, the utilization of Contractual Property System is unsatisfied, and therefore in general we obey the Legal Property System provided by the statute law. According to the KCC, it provides that properties have been possessed since the wedding time or acquired in married period by a party belong to that party exclusively(Art.830 Para.1), provides that in principle these peculiar properties are possessed, took charge and shall be able to dispose by each one(Art.831), and provides that the indefinite properties to whom to belong is presumed the co-ownership of husband and wife(Art.830 Para.2).<BR>  Even though the matrimonial property is based on "the Separate System", it is not serious problem that the properties of a married couple to whom to belong or to be registered at the happy time of husband and wife. However it is necessary to arrange the properties acquired collaboratively by a married couple, at the time of dissolution of marriage such as divorce. At this time, the right of claim for division of the matrimonial property have been endow to each of husband and wife. On the KCC, it had not been mentioned at the time of the establishment of Code in 1960, but the provision of Article 2 of 839 about it was inserted n

許可없는 土地去來契約의 效力에 관한 判例 再檢討

정상현(Sang-Hyun Jung) 한국비교사법학회 2005 比較私法 Vol.12 No.2

The Article 118 of Act on the Program and Utilization for National Land provides that one who shall buy or sell the land must be acquire the gourvernment's permission and also provides that the land transaction contract without such permission should be ineffective. It aims at for restraint the speculative trade of real estate in particular area. However the general view and judicial precedents have interpreted the Article based on the Doctrine of Floating Void. Under this doctrine, a party could not demend the performance of the obligation, because prior to the permission, the contract does not carry it into effect. As legal obligations, the contracting parties must cooperate for getting the permission. If the permission is granted, the contract shall become valid definitely. And in relation to those points, judicial precedents concretely show the following facts that this permission makes the validity of a floating void, that earnest money cannot be returned as unjust enrichment and that the contracts can be canceled by buyer's giving up the money and saler's double repayment. But this doctrine and precedents cannot bar effectively any speculative trades. Because a certain seller may abuse it speculatively, that the contract without permission is null and void. Namely, the typical form of those speculative trades is that after the seller made contracts without permission on the trades of real estate in special region, while he delays the acquisition of permission intentionally, induces other buyers to contract double or triple trades, finally he transfers and registers own property to the buyer who proposed the highest price. In this case, if the first contract without permission was null and void, the seller should not violate the first buyer's faith, he also should not breach any duties that have to cooperate for the first buyer in order to acquire the permission and registration. Because the floating void, voidance and nullity of contracts means that any legal duty or obligation does not exist. Therefore it is appropriate view that the contract without permission is valid, provided that its effect ought to be suspended until the acquisition of permission. This article suggests that the permission for land transaction is the legal suspensive condition, and the legal duty of cooperation for getting the permission ought to be recognized from the provisional validity of contract. Also suggests, the contract carries it into effect definitely when the legal suspensive condition(permission) is fulfilled, and therefore the obligations of contractant, such as payment and registration, are actualized by the acquisition of permission. A legal effect of like this can be founded out of following. That is to say, because the Article 148 of Korean Civil Law provides that the rights and duties of the parties during the pendency of a condition may be disposed of, inherited, preserved or secured in accordance with the general rules, even if the permission as legal suspensive condition does not be acquired, the land transaction contract carries it into effect. Furthermore the legal foundation of a cooperative duty, for the applications of permission and registration, based on the Article 148 of Korean Civil Law referring to prohibition for infringement of conditional right and Article 150 referring to prohibition for the anti-fidelity behaviors of contractant in acquisition of condition.

土地去來許可區域 內의 土地收用과 收用補償金에 대한 買受人의 權利

정상현(鄭相鉉, Jung, Sang Hyun) 성균관대학교 법학연구소 2009 성균관법학 Vol.21 No.1

In general, the Korean Supreme Court affirms that a buyer has the right of claim on the substitutional compensation money when the seller receives the money on the basis of expropriation. Such a decision is recognized by the assumption that the sales contract is valid. But in this case, the object of sales contract is the land in the Area of Transaction by Permission. In Korea, for the restraint of speculative trade of real estate in particular area, Article 118 of Program and Utilization for National Land Development Act provides that one who shall buy or sell the land in particular area must acquire the permission of government. It also provides that the contract without such permission should be ineffective. The general view and judicial precedents have interpreted the Article on the basis of the Doctrine of Floating Void.1)Under this doctrine, a party could not demand to the other party the performance of the obligation, because prior to the permission, the contract does not carry it into effect. If the permission is granted, the contract shall be valid definitely. Therefore, in this case, the Supreme Court does not recognize the buyer's right of claim on the compensation money based on expropriation. But I think that such attitudes of judicial precedents should be criticized in comparison with prior two decisions of the Supreme Court which the contract without permission should be ineffective and the buyer has a right of claim on the substitutional compensation money without legal sources in the expropriation. The following explains in detail. The first, the Supreme Court decides that the contract without permission in particular area should be ineffective, but it also decides that the contracting parties must cooperate for getting the permission as legal obligations.2)That is to say, it affirms that the parties of contract can not refuse the performance of cooperating obligation3)and the one party must pay for damages to the other party on the basis of non-performance of cooperating obligation.4)Moreover it decides that, as unjust enrichment, the one party cannot demand the repayment of the earnest money which he had payed to the other party on the time of contract.5)And it also decides that the permission of transaction is not the "permission" of trade prohibited by law but the "authorization" toward the effect of contract.6) However the Doctrine of Floating Void created by the Supreme Court cannot bar effectively any speculative trades, and moreover it is a theoretical repugnance. Because, while the Doctrine of Floating Void by the Supreme Court has the assumption which the contract without permission is null and void in particular area, the Supreme Court recognizes that the parties of contract have the legal duty of cooperation for getting the permission, the refusal of repayment of the earnest money as unjust enrichment, and the regard the "permission" as the "authorization" on the basis of the validity of contract. Therefore it is appropriate view that the permission for transaction in special area should be the special condition for the transfer of property. I think that the contract without permission has a general validity if it meets the general qualifications, and the legal duty of cooperation for getting the permission ought to be recognized from the general validity of contract. Also I think that the contract carries it into effect definitely when the special condition is fulfilled, and therefore the obligations of contracting parties, such as payment and registration, are actualized by the acquisition of permission. The second, the Supreme Court decides that the buyer has the right of claim on the compensation money when the seller receives the money on the basis of expropriation.7)About the origin of the decision, the Supreme Court also decides that there is no reason to deny the buyer's right, even if the Korean Civil Code does not provide the right. But, for grant a legal right to th

해약금으로 추정되는 계약금의 일부지급과 계약의 해제에 관한 판결 재검토

정상현(JUNG, Sang-Hyun)(鄭相鉉),박석일(PARK, Seok-Il)(朴碩一) 성균관대학교 법학연구원 2019 성균관법학 Vol.31 No.4

The Supreme Court of the Republic of Korea, for a long time, have concluded that one of the parties who enter into a main contract issued a down payment to the other party, the issuance of down payment is a kind of contract. That is to say, the Korean Supreme Court recognize a separate down payment contract independent of the main contract such as a sale contract. Furthermore, it is controversial whether this down payment contract is contract for the need things or not. However, in personal opinion, this argument seems to be unnecessary in light of the interpretation of the Article 565 (1) of the Civil Code of Korea(CCK), the reality of real transactions and the will of contracting parties. Even if we do not accept such a contract as a down payment contract or a contract for the need things, it is a legal effect that occurs when all the down payment are issued. Therefore, I think that the down payment is a part of the whole purchase price, not more than that nor less than that. It is only the first payment that is paid in dividends, which has the special significance. In a realistic transaction, the down payment also has the same meaning as there is no doubt that the buyer s mid payment or balance paid to the seller is a part of the total sales price. However, since the down payment is the first to be paid, it is only an estimated effect of the money for evidence of contracts and the contract releasing fee, or penalty and compensation for damages due to the separate agreement. Therefore, the issuance of the down payment is not necessarily regarded as an independent contract. In fact, the buyer will not be willing to conclude a contract for the payment of the down payment separately from the sale contract, issuing a down payment to the seller. Rather, it is in reality that the parties have the intention that the contents of the sale contract shall have the intention of making a commitment to pay the whole sale price divided into down payment, intermediate payment and balanced payment. As a result, the Supreme Court of Korea has shown contradictory conclusions about the award of the down payment in 2008 and 2015. In these judicial precedents, even though the down payment was not paid at all or was partially paid, Supreme Court presumed that a down payment contract was concluded. This is the ruling that there is a theoretical contradiction. 우리 대법원은 계약금의 교부를 주된 계약과 별도로 체결되는 ‘종된 계약’이라 하고, 이를 널리 ‘계약금계약’이라고 하며, 그 법적 성격을 ‘요물계약’이라고 해석한다. 물론 당사자가 계약금의 액수나 지급시기 및 지급방식에 관하여 명시적으로 주된 계약과 별도의 약정을 하는 경우에는 이러한 해석도 무방하다. 그러나 통상 계약금은 주된 계약의 내용으로 그 액수 등을 정하고 그에 따라 교부될 뿐이다. 이에 대한 대법원의 태도는 계약금을 해약금으로 추정하는 민법 제565조 제1항의 규정 해석이나 실제 거래의 현실, 당사자의 계약금 교부의사에 비추어 불필요한 개념을 인정한 결과라고 생각된다. 왜냐하면 해약금 추정의 효력은 계약금 교부를 굳이 계약금계약이라든가 요물계약 내지 낙성계약이라 하지 않더라도, 주된 계약의 내용으로 계약금을 모두 교부하면 그 자체로서 발생하는 법률효과이기 때문이다. 위 규정에 따라 ‘계약 당시에’ 계약금이 ‘교부’되면 ‘당사자간에 다른 약정이 없는 한’ 해약금으로 추정되어, 교부자는 이를 ‘포기’하고 수령자는 그 배액을 ‘상환’하여 계약을 해제할 수 있다. 계약금은 매매대금의 일부이고, 분할하여 지급되는 대금 중 가장 선행하는 것으로서 특별한 의미가 있을 뿐이다. 이러한 입장에서 계약금에 관한 대법원의 태도를 살펴보면, 계약금의 교부를 통한 주된 계약의 구속력 확보와 해약금 추정력의 인정범위를 일관하여 견지하지 못한 것으로 생각된다. 이 상황은 이 글의 평석대상인 2008년 판례와 2015년 판례가 등장하면서 더욱 심화된 것으로 보인다. 그 이전의 판결들은 계약금 교부를 주된 계약과 별도의 ‘계약금계약’으로 파악하고, 이를 ‘요물계약’으로 이해하는 확고한 태도를 유지하였다. 그러나 2008년 계약금이 전혀 교부되지 않은 사례, 2015년 계약금 중 극히 일부만 교부된 사례에서, 해약금 추정에 따른 주된 계약의 해제를 인정하게 되면 계약의 구속력을 매우 후퇴시키는 결론에 이를 것이라는 우려가 예상되었다. 이에 대법원은 기본원칙으로 계약금계약의 요물계약설을 유지하면서, 추가적이거나 가정적인 내용의 판시를 통하여 낙성계약설의 일면을 드러내었다. 즉 2008년 판례에서는 아직 지급하지 않은 계약금의 지급의무를 불이행하면 계약금계약 자체를 해제할 수 있다는 법정해제(민법 제544조) 가능성을 나타내었다. 이것은 계약금계약의 요물성을 전제하면서도, 계약금이 전혀 지급되지 않은 상태에서 계약금계약은 성립되었고 그 효력으로 아직 지급되지 않은 계약금의 지급의무를 인정함으로써, 낙성계약설의 논리를 그대로 드러낸 것이다. 또한 2015년 판결에서도 계약금을 일부만 지급한 경우에는 계약금계약이 성립되지 않았으므로 이를 해제할 수 없다고 전제하면서, ‘해제할 수 있다고 하더라도’ 해약금의 기준은 실제 지급된 계약금이 아니라 약정 계약금이라는 가정적 결론을 도출하였다. 이 역시 계약금이 일부 지급된 경우에는 요물계약설에 의할 경우 해제할 수 없다는 결론과 낙성계약설에 의할 경우 주된 계약을 해제할 수 있다는 결론이 동시에 존재하는 모순적 상황을 드러낸 것이었다.