신용카드 부정사용의 유형과 손실부담

최상회(Choi, Sang-Hoe) 원광대학교 법학연구소 2010 圓光法學 Vol.26 No.1

The credit card has become an essential part of our everyday life, serving as an inseparable tool in the national economy as well as in the household one. However, this useful tool has been causing a lot of negative side effects and disputes as well with people's misuse or abuse of it. Now, the legislation of credit card transaction like credit professional finance law is made up of individual and dispersive legislation form which is focusing on restriction by legal form. So, in case of happening disputes related to credit card, because consumer tries solutions in search of the act unsystematically, there will have to be complementaries in legislation and in policy about this. Credit card fraud is a wide-ranging term for theft and fraud committed using a credit card or any similar payment mechanism as a fraudulent source of funds in a transaction. The purpose may be to obtain goods without paying, or to obtain unauthorized funds from an account. Credit card fraud is also an adjunct to identity theft. This paper is a study on the type of the consumption on the credit card fraud and try to find a solution to a problem in loss on credit card fraud. This is intended to make an overall survey on credit card transaction and find out suitable legal tool for solving disputes arising in connection with them. And this is the way increase a trust in credit card system, furthermore it will be contributed to build the society of credit.

창의적 콘텐츠와 방송통신융합 환경에서의 저작권

최상회(Choi, Sang-Hoe) 충북대학교 법학연구소 2011 과학기술과 법 Vol.2 No.1

Recently, digital media had a tremendous impact on the development of the Internet, telecommunications, and broadcasting areas. The rapid popularization of the Internet, wireless communication systems, and digital broadcasting networks have led us to an epochal framework for epochal framework for content services with an end-to-end delivery chain of content generation, distribution, and consumption. A copyright is a set of exclusive rights granted by a state to the creator of an original work or their assignee for a limited period of time upon disclosure of the work. This includes the right to copy, distribute and adapt the work. In most jurisdictions copyright arises upon fixation and does not need to be registered. Copyright owners have the exclusive statutory right to exercise control over copying and other exploitation of the works for a specific period of time, after which the work is said to enter the public domain. Uses covered under limitations and exceptions to copyright, such as fair use, do not require permission from the copyright owner. All other uses require permission. Copyright owners can license or permanently transfer or assign their exclusive rights to others. Fundamental Law for distribution and production is copyright law. It is true that copyright laws place restrictions on the publication and use of another person's creative work. We should try to achieve a perfect combination of profit on authors and public, those would be the best contents.

인폼드 컨센트(Informed Consent)의 법리구조

최상회(Choi Sang-Hoe),윤종민(Yoon Chong-Min) 한국법학회 2009 법학연구 Vol.33 No.-

환자 자신의 몸에 어떤 일이 발생하였는가를 관리하는 환자의 법적, 윤리적 권리와 치료에서 환자를 돌보는 의사의 윤리적 의무로부터 시작하는 인폼드 컨센트(Informed consent)법리는 환자에게 충분한 정보를 제공하여 그 자신의 치료에 관한 선택을 할 수 있도록 하는 과정이라고 할 수 있다. 환자 쪽의 이해는 제공되는 정보만큼 똑같이 중요하기 때문에, 대화는 문외한인 환자들이 쉽게 알 수 있는 용어로 진행되어야 하고, 환자는 설명을 듣는 과정에서 이것을 이해할 수 있을 것이다. 인폼드 컨센트 법리는 수술 전 환자와의 대화나 병원에서의 의학적 동의서 형식들은 좋은 치료에 필요한 권한을 주는 것이기 때문에 이 동의서가 강압적인 상황에서 이루어지면 안될 것이고, 환자가 자유롭게 의사결정을 할 수 있도록 해야 할 것이다. 이 논문에서는 인폼드 컨센트 법리구조의 전반적인 내용들과 우리나라의 판례를 유형별로 알아보고 특히 그 한 축인 설명의무의 범위와 관련하여 많은 논쟁이 있지만 설명의무를 검토하는 단계적인 방법들을 통하여 의료법에서의 설명의무조항 신설의 필요성을 언급하고자 하였다. Informed consent is the process by which a fully informed patient can participate in choices about her health care. It originates from the legal and ethical right the patient has to direct what happens to her body and from the ethical duty of the physician to involve the patient in her health care. The informed consent doctrine is generally implemented through good healthcare practice: pre-operation discussions with patients and the use of medical consent forms in hospitals. However, reliance on a signed form should not undermine the basis of the doctrine in giving the patient an opportunity to weigh and respond to the risk. The most important goal of informed consent is that the patient have an opportunity to be an informed participant in his health care decisions. It is generally accepted that complete informed consent includes a discussion of the following elements: (ⅰ) the nature of the decision/procedure, (ⅱ) reasonable alternatives to the proposed intervention, (ⅲ) the relevant risks, benefits, and uncertainties related to each alternative, (ⅳ) assessment of patient understanding, (ⅴ) the acceptance of the intervention by the patient. In order for the patient's consent to be valid, he must be considered competent to make the decision at hand and his consent must be voluntary. It is easy for coercive situations to arise in medicine. Patients often feel powerless and vulnerable. To encourage voluntariness, the physician can make clear to the patient that he is participating in a decision, not merely signing a form. With this understanding, the informed consent process should be seen as an invitation to him to participate in his health care decisions. The physician is also generally obligated to provide a recommendation and share her reasoning process with the patient. Comprehension on the part of the patient is equally as important as the information provided. Consequently, the discussion should be carried on in layperson's terms and the patient's understanding should be assessed along the way. I would like to suggest a step by step method in reviewing the physician breach of his obligation to explain. Although there is still some controversy over the exact scope of facts that the physician must explain. The physician must explain (ⅰ) the specific method of treatment, (ⅱ) matters required for obtaining informed consent or approval from the patient and (ⅲ) financial impact of the treatment. Some of the medical problems that physician confront cannot be solved merely through the application of objective medical knowledge and technology. Some medical problems involve a moral dimension related to the life of the patient. Therefore, physician shoud be interested. not only in medical technologies and techniques, but also in the lives of their patients.

인체 및 인체부산물의 소유권에 대한 비판적 고찰

최상회(Choi, Sang-Hoe) 한국재산법학회 2009 재산법연구 Vol.26 No.1

This paper outlines seek to efficient legislation that protect people’s interests in their bodies, excised body parts and tissue without conferring the rights of full legal ownership. People may be concerned not so much about owning their bodies, as controlling what happens to their body or by-product of human body. People can authorise the removal of their bodily material and its use, either during life or after their death, for medical or scientific purposes. Researchers who acquire human bodies, by-product of human bodies pursuant to such an authority have a right to possess and use them according to the authorization they have been given, but their rights fall short of full ownership because they are limited in the way that they can use the material. It will not be possible for a hospital or researcher to obtain full ownership of a body or body part since the executor is ultimately entitled to possession for burial ,nor to tissue taken from people who have not died. The legal rights of researchers who develop intellectual property and biological products from excised human tissue can be adequately protected by existing the laws of battery, negligence and privacy principles without the need for a new legal principle that people own body parts and tissue removed from their bodies.

민사사건에 대한 헌법소원의 타당성 검토

최상회(Choi Sanghoe) 한국법학회 2016 법학연구 Vol.62 No.-

현행헌법상 대법원과 헌법재판소는 다 같이 사법기관으로서 대등한 지위에 갖는 우리나라 최고의 사법기관이며, 법원은 일반적으로 법률뿐만 아니라 그 상위규범인 헌법에 따라 궁극적으로 헌법을 실현하고 관철시키는 재판을 하여야 한다는 점에서 헌법재판에 속하는 헌법재판기관이라고 할 수 있다. 이러한 사법기관의 이원적 체제는 아마도 협동과 조화의 효율성을 의도하고 만들어진 것이겠지만 대법원과 헌법재판소 사이의 갈등의 원인이 되고 있다. 민사재판과정에서 이루어질 헌법적 판단대상은 실체법인 민법을 상정할 수 있지만, 사적자치가 지배하는 사법 영역에서 민법이 기본권을 제한한다고 볼 수 있는지 신중한 검토가 필요하다. 헌법재판소가 헌법사건으로 충분한 가치를 갖고 있지 않은 민사사건에 대하여 헌법소송을 허용하는 것은 일반소송과 헌법소송을 포함하여 사법체계 전반을 혼란에 빠뜨리는 부작용을 발생시키는 것이다. 기본권을 침해하는 사인의 행위는 민법 제750조의 위법성이 인정되어 불법행위를 구성하게 되므로 사적자치가 지배하는 민사사건은 헌법사건화하지 말고 일반법원에서 판결할 수 있도록 하는 것이 사법체계의 혼란을 최소화하는 것이다. Supreme Court and the Constitutional Court is the highest judicial body of the country equal status as judicial bodies. The Court therefore generally the law, as well as be tried in accordance with the norms of the Constitution may be higher as the Constitutional Court authority. Dualistic system of law enforcement agencies has become a source of conflict between the Supreme Court and the Constitutional Court. Constitutional judge made the target in a civil trial, says the civil law legal entities. It requires a careful review that the civil judicial area that is dominated by private autonomy can be seen as limiting the fundamental rights. Constitutional Court to allow the constitutional lawsuit against a civil case can generate an entangled mess adverse effects on general litigation and the justice system overall. Legal relations in civil ruled that private autonomy is to minimize the disruption of the judicial system that would allow the General Court ruled.

원치 않는 아이 출산과 손해배상책임

최상회(Choi, Sang-hoe) 충북대학교 법학연구소 2010 과학기술과 법 Vol.1 No.1

The recovery of damage from unwanted birth of unhealthy child entail the issue of value embedded in human life. Itcan't be addressed and considered based only on general theory of law associated with the recovery of damage, but on philosophical and ethical considerations. Therefore, there have been both complicated and subtle controversies over whether and to what extent each country recognizes the recovery of damage caused by the birth of unhealthy child. As discussed above the unwanted birth of unhealthy child is attracting more and more attention among the community members dealing with legal cases and theories. The stories of parents bringing wrongful conception and birth suits against health authorities raise familiar scenarios - clinical mishaps in family planning techniques including negligently performed abortion and sterilisation, the provision of incorrect results following post-operative testing, and in case of wrongful birth, negligent failures in genetic counselling, whether actual diagnosis or information provision. Claiming that in the absence of such negligent treatment the "unwanted" child would not have been born, parents have typically sought damages under two heads; first, for the pain and suffering attendant on the "personal injury" of pregnancy and birth, and second for the costs of child maintenance. As mentioned before, conventional theory of law has to be applied in deciding the level of recovery, away from both philosophical and ethical aspects surrounding recognition of the damage inflicted on the child. So, the parents should be entitled to both the whole costs of child-rearing and recovery for emotional distress. The unhealthy child itself should be given ordinary costs of care and extra-ordinary costs of care, as well. This way of approach seems to be both rational and desirable given that it improves the welfare of unhealthy child in general and is consistent with law of theory associated recovery of damage in particular.

판례(判例)와 비교법적(比較法的) 검토를 통한 하자담(瑕疵擔) 보책임(保責任)과 채무부이행책임債務不履行責任)의 일고찰(一考察)

최상회 ( Sang Hoe Choi ) 단국대학교법학연구소 2009 법학논총 Vol.33 No.2

This thesis is in need of verification whether many preceding researches passing over something. Also, It will be access to nature of the liability of warranty. When the buyer has the right to by reason of seller`s breach of warranty by article 580·581 of the civll law. It is discussed whether besides this right the buyer has another right to damages by reason of default on an obligation which arise from the contact by article 390 of the civil law. This judgment is significant as the first judgment of the Korean Supreme Court that clarify its attitude approving the concurrence of the liabilities to damages for breach of warranty with default on an obligation of the seller. The meaning of integration of warranty and default on an obligation is that conform the condition and the effect of warranty to the default on an obligation if possible. This thesis examined the possibility and the necessity of the conformity of the provision of Korean Civil Law article 580·581 about Warranty as a special provision to the provision of Korean Civil Law article 390 about default on an obligation, especially laying emphasis on condition of Warranty of a seller. More reasonable solution is newly establishment of general clause about liability of default on obligation or defective performance than revision of the provision of provisory of korean civil law article 390.

사이버 공간에 공개된 정보의 이용과 불법행위책임

최상회(Choi, Sang Hoe) 충북대학교 법학연구소 2010 과학기술과 법 Vol.1 No.2

The rapid growth of Internet infra-structure makes affirmative effect of renovation of the industrial structure, but as the internet has developed rapidly, various kinds of illegal acts have appeared. We have difficulties to call someone to liability in these illegal act of the cyberspace. Because we can't discover who counterpart is easily and prove someone guilty without difficulty. In order to overcome these difficulties in the relief of the victim, there were discussion Korean real action and the trespass to chattels principle, misappropriation doctrine. I think that first discussion is the basis of cyberspace characteristic and seek after a rule applicable to all cases in cyberspace.

집합건물의 건축공사하수급인과 건축사의 담보책임

최상회(Choi Sang hoe) 충북대학교 법학연구소 2014 法學硏究 Vol.25 No.1

Currently, more than half of all people living in aggregate buildings set to be induced Independent Contractors a solid construction. To this end, aggregate buildings constructed in order to protect the owner of a set of active defects in the building occurs, the aggregate buildings owned and managed according to Article 9 of the Act on Civil Liability pursuant to civil liability Independent Contractors Let's ask. Independent Contractors Warranty Liability is established in order that building delivered to the building after the completion of the building owner there must be a defect. The liability of suggesting whether Independent Contractors construction shall not be a problem to let Independent Contractors about Liability Disclaimer shall be free riders. In addition, the main construction Independent Contractors breach shall be in violation of or incidental duties As a set of architectural building construction subcontractors and architects set practically important in the field of building construction building and construction, and a majority. Nevertheless, the Condominium law and Housing Act, the regulations are not responsible for the mortgage. In this paper, we have no way architects and let subcontractors to be held responsible, and consider whether he saw the evidence presented.

생체장기이식의 윤리와 법률문제

최상회(Choi, Sang-Hoe) 충북대학교 법학연구소 2008 法學硏究 Vol.19 No.2

Clinical organ transplantation has been recognized as one of the most gripping medical advances of the century as it provides a way of giving the gift of life to patients with terminal failure of vital organs, which requires the participation of other fellow human beings and of society by donation of organs from deceased or living individuals. Live organ transplantation have the advantage of being able to avoid the issues surrounding the proclamation of cerebral death as well as the fact that it has a higher rate of survival compared to transplants from a dead donor. However, the situation is that there are far more patients who wish to have transplants than those who provide organs. When looking at the general trend of many nations, there is the tendency to rely on live organ transplants. However, A question of the morality of its actions in live organ transplantation and there is the also the issue of how to protect the donors safety and health. Taking this the discussion, this paper attempts to look closely into the discussions about live organ transplants and the autonomous decisions of patients. The backgrond and present situation of live organ transplants, the autonomous decisions by the donors from a civil law perspective are discussed.