Research

Journal Articles (in Korean)

1. Style Learning of Generative AI and Reexamination of the Scope of Expression Protection under U.S. Copyright Law: Focusing on the Idea-Expression Dichotomy and Substantial Similarity in Non-Literal Copying, 37(2) J. Law (2026)
   Abstract

   The advancement of generative artificial intelligence technology, including conversational AI, has made it possible to produce outputs that imitate the writing style and narrative manner of specific authors. This phenomenon calls for a reexamination of the distinction between ideas and expression under copyright law. The problem, however, is not limited to whether writing style itself should be recognized as an independent object of rights. It is necessary to examine separately the question of how copyrighted works are reproduced and used during the AI training process, and the question of whether outputs generated after training substantially reproduce protected expression from the original works. This article examines the issues of style learning by generative AI and the assessment of substantial similarity in AI-generated outputs, focusing primarily on U.S. copyright case law and doctrine. It first considers the place of writing style within the idea-expression dichotomy by analyzing the explanation-use distinction established in Baker v. Selden, the abstraction test articulated in Nichols v. Universal Pictures Corporation, and the scènes à faire doctrine. Writing style, as a general matter, falls closer to the realm of unprotectable ideas, techniques, or modes of expression; however, where stylistic elements manifest as specific choices, arrangements, and combinations of expression in a particular work, and where generative AI outputs substantially reproduce those elements, such elements may become cognizable in a substantial similarity analysis. The article next examines the question of reproduction arising from the AI training process, in connection with the reproduction right, the distribution right, the first-sale doctrine, and fair use. The question of whether AI-generated outputs constitute copyright infringement must be assessed independently of the legality of the training process, focusing on whether the output has substantially utilized protected expression from the original work — examined through the two-part test of Arnstein v. Porter and the total concept and feel doctrine, after filtering out genre conventions, stock expressions, and functional elements. Ultimately, caution is warranted in constructing writing style as a new form of exclusive right. As a matter of legislative policy, rather than establishing a separate category of protection for writing style, it would be more appropriate to explore a licensing and compensation framework for the use of training data, a market-substitution standard for style imitation using specific authors' names, and transparency obligations concerning training data and AI-generated outputs.

2. Legal Challenges and Implications of Industrial Non-Personal Data Transactions for Conversational AI Training, 26(1) J. Law & Pol. Res. (2026)
   Abstract

   The recent advancement of large language models and generative artificial intelligence has reinforced the trend where the limits of model performance are determined not only by the sophistication of algorithms but also by the scale and quality of training data. In particular, the proliferation of few-shot learning — which enables models to perform tasks with only a minimal amount of data — has shifted the criterion for data value from simple accumulation volume to an evaluation of the performance contribution of individual datasets. In this environment, industrial non-personal data for conversational AI training has evolved from a secondary byproduct into a critical resource that defines performance limits and serves as the foundation for economic value creation. This study examines the legal issues surrounding such industrial training data from the perspective of designing usage relationships and establishing compensation settlement frameworks. Given the non-rivalrous nature of data, the establishment of a circulation order based on just compensation is required. From a comparative legal perspective, the FRAND compensation principles of the EU Data Act, Germany's contractual protection model, France's interoperability regulations, the discussions on fair use doctrine and expansion of market-based licensing in the United States, and the non-enjoyment use exemptions in Japan and Singapore all converge toward securing data liquidity, despite adopting different institutional approaches. To objectify the assessment of compensation, this study explores the possibility of invoking the Shapley Value and Monte Carlo sampling techniques — which calculate the marginal increment a specific data point contributes to model performance — as supplementary criteria for judicial balancing and as evidentiary tools. Furthermore, standard contractual clauses can be introduced to mitigate the opacity of transaction terms and the fragmentation of contractual structures, stipulating the scope of quality warranties, procedures for correction and resettlement upon discovery of defects, limitations of liability, and audit log preservation and inspection rights. In addition, the introduction of data transaction intermediaries may be considered to institutionally absorb the uncertainties arising from individual data valuation and contribution assessment.

3. The Dual System of Digital Norms in the AI Era and Legislative Considerations: Implications for the South Korean AI Framework Act through a Comparative Legal Analysis of the EU and the US, 712 Legis. (2026)
   Abstract

   This study analyzes the global digital regulatory order formed in response to the rapid advancement of Artificial Intelligence (AI) technology and the expansion of the data economy. Based on this analysis, it examines the legislative orientation of the Framework Act on the Development of Artificial Intelligence and Establishment of Trust (the "Framework Act on AI"), which came into effect in the Republic of Korea in 2026. In an AI environment, data possesses unique attributes of non-rivalry and non-excludability; consequently, traditional property law frameworks designed for exclusive possession are prone to regulatory gaps in determining data's legal status. To address these institutional challenges, global legal paradigms have diverged into two primary models: the ex-ante regulation and fundamental rights protection model led by the European Union, and the market autonomy and ex-post corrective model led by the United States. Starting from the GDPR and extending to the Data Act and the world's first comprehensive Artificial Intelligence Act, the EU has established an integrated regulatory system that enhances administrative transparency and reinforces fundamental rights protection through a risk-based approach. Conversely, the U.S. maintains a pragmatic line prioritizing trade secret protection and freedom of contract, while consolidating a decentralized legal order to secure technological hegemony through reinforced self-regulation. By employing a comparative legal analysis focused on institutional effectiveness, this study elucidates the process of conflict and convergence between these two legal systems and proposes a roadmap for an AI management framework. To ensure the stable settlement of the Framework Act on AI, it is crucial to embrace the advantages of U.S.-style technology-autonomous infrastructure while establishing a certification and evaluation system aligned with global standards to secure accessibility to the EU market. Ultimately, moving beyond passive regulatory compliance, a legislative effort is needed to internalize the principle of substantive accountability within the legal system to guarantee human dignity throughout the entire AI lifecycle — from planning to deployment and operation.

4. Judicial Acceptance and Challenges of Clinical Practice Guidelines as Criteria for Determining Medical Malpractice, 26(3) Korean Soc'y L. & Med. (2025) (with H.Y. Jeong)
   Abstract

   This study examines the judicial status and legal effects of Clinical Practice Guidelines (CPGs) in medical malpractice litigation from a comparative perspective and proposes policy tasks for utilizing them as a criterion for determining the duty of care. As normative criteria for medical practice shift from traditional medical customs to objective rationality based on scientific evidence, CPGs have evolved into a core benchmark for establishing the legal standard of care. The United States facilitates a transition through the Restatement (Third) of Torts, establishing CPGs as both an offensive and defensive tool in litigation. The United Kingdom assigns quasi-normative status to National Institute for Health and Care Excellence guidelines. Germany codifies medical standards through the Patient Rights Act, recognizing judicial effects of presumed negligence for guideline violations. Korean courts utilize CPGs as compelling evidence yet lack differentiated criteria based on recommendation grades. The study proposes granting soft law status to CPGs, adopting GRADE methodology to differentiate judicial effects by recommendation strength, standardizing expert witness inquiries, and strengthening judicial gatekeeping regarding scientific validity while maintaining judicial flexibility.

5. Lapse of Devises Due to Predeceased Beneficiaries and Realization of the Testator's Intent: A Comparative Study of the American Anti-lapse Statute and Legislative Proposals for the Korean Civil Code, 29(1) Theory & Prac. Priv. L. (2025)
   Abstract

   This study analyzes the legal vacuum that arises when a devisee predeceases the testator in testamentary succession and presents specific legislative proposals for the Korean Civil Code based on a comparative analysis of the American anti-lapse statute. The current Korean Civil Code restricts the right of representation (daeseup-sangsok) exclusively to intestate succession. Consequently, the testator's presumed intent is not properly reflected when a devisee predeceases in a will: when a testator devises property to kindred, particularly lineal descendants, it is generally presumed that they intend for the property to pass to the devisee's descendants should the devisee fail to survive them, yet under the current interpretation such intent cannot be realized unless the will explicitly includes a substitute disposition. This creates an irrational imbalance between intestate and testamentary succession, discourages the use of wills, and undermines the coherence of the inheritance law system. In the United States, the anti-lapse statute protects the testator's presumed intent by allowing the issue of certain predeceased kindred devisees to take the gift by representation, provided the testator has not expressed a contrary intent. This study derives implications for the Korean legal system through an in-depth analysis of the application requirements, legal effects, and major precedents found in the Uniform Probate Code (UPC) and the California Probate Code (CPC). Accordingly, it proposes the introduction of an anti-lapse provision into the Korean Civil Code through an express amendment (Article 1090-2), with the scope of applicable devisees suggested as either lineal descendants and siblings or blood relatives within the fourth degree, substitute takers limited to the devisee's issue, and the statute superseded by the testator's clear contrary intent or designation of an alternative beneficiary. The introduction of this anti-lapse statute would faithfully reflect the testator's presumed intent, contribute to the activation of the testamentary system, resolve the discrimination between intestate and testamentary succession, and increase predictability and legal stability while preventing unnecessary disputes.

6. A Study on the Class Designation of Devisees in Wills: The U.S. Class Gift Doctrine and Its Implications for Korean Civil Code, 113 Korean J. Civ. L. (2025)
   Abstract

   This study analyzes the legal doctrine of class gifts under U.S. law as a means to substantively realize private autonomy in the field of inheritance law and examines the legal issues and legislative tasks for its adoption into the Korean inheritance law system. Under current law, a will must have certain and determinable terms at the time of the testator's death to be valid; thus, designating devisees by a collective class name leads to interpretive difficulties regarding the finality of the membership. Specifically, when a class member predeceases the testator or membership fluctuates after the execution of the will, the property may revert to the legal heirs, illustrating the limitations of the current system where the testator's presumptive intent lacks sufficient institutional protection. While will-substitute trusts under the Trust Act are proposed as a flexible alternative, they face practical hurdles, including high trustee fees and entry barriers, conflicts between substantive and procedural laws regarding the specific identification of beneficiaries in real estate registration, and potential disputes over the inclusion of trust assets in the calculation of forced shares as special gifts. Accordingly, this study proposes the establishment of a default rule in the Civil Code that explicitly allows for the class designation of devisees. Specifically, to prevent delays in distribution caused by the fluctuating nature of class members, it suggests adopting the Rule of Convenience from U.S. law. Furthermore, regarding the inclusion of posthumously conceived children through Assisted Reproductive Technology (ART), the study proposes a dual standard — combining the testator's explicit written consent with an objective time limit — to harmonize legal stability with private autonomy. As for practical issues, the study discusses procedural improvements to allow for the registration of beneficiary determination criteria instead of individual personal information in real estate records; in terms of taxation, it suggests a tax-neutral system that defers the calculation of the tax base until shares are finalized, alongside anti-abuse rules. Regarding the conflict with forced shares, it explores measures to ensure the effectiveness of class gifts through the principle of value-based return and the adjustment of the order of abatement. If the class gift doctrine is introduced following progressive discussion and deliberation, it will enable the legal system to embrace diverse modern family relationships while harmoniously promoting the realization of private autonomy and the stability of inheritance relations.

7. Legislation of the Claim for Vicarious Compensation and Its Interpretive Issues: The 2024 Civil Code Amendment Bill, 36(2) J. Law (2025)
   Abstract

   The 2024 Korean Civil Code Amendment Draft has proposed to codify the right to claim substitute performance through the enactment of Articles 399-2 and 537(3). This codification seeks to formalize a right that had previously been recognized in case law and academic doctrine. The right to claim substitute performance is defined as the creditor's right to demand the transfer of rights or restitution of benefits acquired by the debtor in lieu of the original object of obligation due to the impossibility of performance. This institution is designed to promote equitable outcomes when performance becomes impossible, thereby contributing to the realization of contractual justice. Despite the proposed codification, interpretative gaps remain concerning the requirements and scope of application. This study addresses these major interpretative issues through comparative legal analysis with legislative examples from France, Germany, and Japan. First, regarding obligations involving acts (either active or passive), it is reasonable to extend the substitute performance claim to such obligations, supported by the principle of equitable allocation of benefits, the absence of justification for differential treatment based on the nature of the obligation, and the open-ended wording of the amendment draft that accommodates such cases. Second, concerning original impossibility, it is consistent with systematic coherence to interpret that claims for substitute performance should extend to cases of original impossibility, aligning with the 2024 draft's abolition of the traditional doctrine rendering contracts void for original impossibility. Third, in relation to benefits derived from legal acts, there is no sufficient reason to differentiate rights attribution based on the origin of the benefit; excluding such benefits would undermine the effectiveness and fairness of the system. Finally, with respect to excess benefits, it would be inconsistent with equitable principles to allow creditors to acquire windfall gains without their own contribution. Thus, it is consistent with good faith to limit the scope of substitute performance claims to the market value of the object at the time of impossibility. The 2024 draft reflects a deliberate legislative openness, allowing space for doctrinal and judicial development in the application of the right to claim substitute performance. For the stable establishment of this legal institution, it is essential to develop a coherent interpretative framework grounded in comparative analysis and to accumulate judicial precedents over time.

8. Family Law in the Era of Low Fertility: A Study on Legal Factors in Marriage and Childbirth Decisions in Korea, 527 Human Rights & Just. (2025)
   Abstract

   South Korea recorded an unprecedentedly low total fertility rate of 0.72 births in 2023. This decline in the birth rate is not merely a demographic phenomenon but reflects fundamental changes in social structure and value systems. Given that out-of-wedlock births remain notably rare in Korea, examining legal barriers to marriage is essential for addressing low fertility. This study analyzes how current family law institutions influence individuals' decisions regarding marriage and childbirth. First, this study examined the limitations of birth notification systems and protected birth systems as legal institutions directly related to childbirth decisions. In particular, it analyzed how restrictions on unmarried women's access to assisted reproductive technology constrain the possibility of childbirth regardless of marital status. Second, the study confirmed that the rigidity of the paternity presumption system acts as a barrier to marriage and childbirth. The current system applies paternity presumption to children born from extramarital relationships as long as the marital relationship remains intact, with limited methods to rebut this presumption. This rigidity creates legal uncertainty in family formation, potentially negatively affecting both marriage and childbirth decisions. Third, the study examined how the property division system in divorce affects decisions on marriage and childbirth. In practice, pre-marital assets are often subject to division, and equal distribution tends to be recognized in long-term marriages. This has become a deterrent to marriage among young generations who have accumulated assets, consequently affecting the fertility rate. Thus, paradoxically, institutions focused on protecting traditional family relationships act as legal barriers that restrict family formation in the modern context. Resolving these issues requires a fundamental review of the family law system. Specifically, solutions include improving the protected birth system, making the paternity presumption system more flexible, and introducing prenuptial agreement systems. This will be a process of seeking harmony between traditional family concepts and modern family formation methods beyond mere institutional improvements. For effective legal responses to the low fertility issue, it is necessary to harmonize two values: respect for individual autonomy and ensuring social sustainability. To this end, family law should evolve by fundamentally shifting policy objectives from demographic targets of increasing fertility rates to promoting individual autonomous choices, thereby moving toward recognizing diverse family relationships and respecting individual decisions.

9. Tort Liability of E-commerce Platforms for Sales Suspension Based on Intellectual Property Infringement Claims, 80 J. Consum. Policy Stud. 311 (2025)
   Abstract

   The research examines how online marketplaces handle intellectual property disputes, particularly when sellers face unjustified sales suspensions. The study analyzes platform responsibility through comparative legal frameworks from the US, Europe, and Japan, arguing that due diligence standards should vary based on business models and involvement levels. Key findings emphasize that platforms should establish fair dispute resolution procedures, implement automatic reinstatement if rights holders fail to pursue legal action, and impose sanctions against repeat false claimants. The analysis suggests balancing IP holder protections with seller rights, proposing that consequential damages doctrines can reasonably limit platform liability while fostering sustainable e-commerce development.

10. Medical Negligence and Causation in Healthcare-Associated Infection Cases and Their Standards of Proof, 25 Korean Soc'y L. & Med. 127 (2024)
    Abstract

    The Supreme Court Decision 2024Da204665 (September 27, 2024) provided important standards for proving medical negligence and causation in healthcare-associated infection cases, requiring the existence of medical conduct constituting malpractice and the probability that such malpractice caused damage to the patient for presuming causation. The most significant challenge in legally addressing healthcare-associated infection cases lies in evidentiary issues inherently connected to the specialized nature of medical practice. This study analyzes the significance and limitations of the subject case, considering both the unique characteristics of healthcare-associated infections and the practical realities of medical settings. Through comparative legal analysis of Germany, France, and Japan, it seeks concrete improvements that harmoniously consider both patient remedies and medical realities. While the Court's approach is fundamentally sound, it has limitations: the standard of normatively required infection prevention measures remains abstract, and the medical characteristics of infection incubation periods and manifestation patterns are insufficiently considered in determining temporal proximity. Addressing these issues requires establishing specific infection control standards considering institutional types, scales, and clinical characteristics, implementing rational distribution of the burden of proof, and constructing systematic evidence collection mechanisms.

11. A Legal Study on the Regulation of Content Recommendation Algorithms in Digital Platforms, 28 Theory & Prac. Priv. L. 175 (2024)
    Abstract

    Digital platforms have emerged as core actors in public opinion formation and cultural creation, and as the influence of their content recommendation algorithms on users' information access and consumption grows, the bias and discriminatory effects of these algorithms have become a social problem. However, regulation is difficult due to the opacity of algorithms, ambiguity of responsibility, and the cross-border nature of these services. The EU, along with Germany, the UK, the US, and Japan, is making various legal and institutional efforts to strengthen platform accountability and improve algorithmic transparency, but these regulatory efforts face challenges including conflicts with global companies' trade secret protection demands, limits of enforcement due to the cross-border nature of services, and difficulty proving illegal conduct due to algorithmic opacity. The study recommends implementing transparency reporting systems for large platforms, granting algorithmic explanation rights when reasonable suspicion exists that decisions unduly restrict user rights or produce discriminatory effects, with collective remedies as resolution mechanisms. It emphasizes meaningful transparency rather than complete disclosure and advocates for specialized independent oversight with expert participation and international standardization cooperation.

12. French Public Health Code and Regulation of Illegal Medical Practices, 41(2) J. Prop. L. 97 (2024)
    Abstract

    A significant proportion of medical harm results from structural problems within the system. Holding a single individual accountable for outcomes resulting from systemic problems is not an effective approach to achieving meaningful patient safety outcomes. It is therefore necessary to move from a reactive to a proactive system for responding to medical harm — to rethink the health care system and, more fundamentally, the structure of health care legislation, the scope of medical practice, and the regulation of illegal medical activities. This paper provides an overview of the health legal system, focusing on the French Public Health Code (Code de la santé publique), and examines the qualifications and duties of health professionals, the purpose and subjects of medical practice, the types and locations of medical institutions, and telemedicine. It also analyzes the definition, criminal provisions, categories and major cases of illegal medical practice in France. Notable aspects of the French Public Health Code include its preventive approach to promoting public health rather than merely regulating medical practices, and its careful balance between respecting professional self-regulation and ensuring public interest and safety through state intervention. Drawing on this analysis, the paper suggests that Korea establish mutually complementary cooperation among healthcare professionals, carefully consider the introduction of telemedicine on the basis of verified competence and system reliability, and strike a balance in determining the scope of medical practice and regulating illegal medical activities.

13. An Opinion on the Introduction of No-fault Divorce System: Is the Introduction of Harshness Clauses and a Post-divorce Maintenance System Necessary?, 38 Korean J. Fam. L. 145 (2024) (first author, with M.J. Son & S.H. Hyun)
    Abstract

    In 2015, the Supreme Court ruled that the change of the current fault-based divorce system to the no-fault divorce system cannot be allowed in the absence of complementary measures to protect the weak, such as harshness clauses or post-divorce maintenance, adhering to the position that the fault-based divorce system is also necessary to protect the marriage system. This paper aims to argue that the ruling is incorrect through a comparative legal study of the divorce systems in Germany, France and the United Kingdom. Germany introduced a no-fault divorce policy in 1976, France in 1975, and the UK in 1973, with harshness clauses and strengthened post-divorce maintenance in the form of lifetime regular payments as a compromise; however, the former was rarely used and was eventually abolished in France and the UK, while the latter led to a steep decline in the marriage rate and was replaced with a weakened post-divorce maintenance system in the form of a lump sum payment. Moreover, statistics have found that the no-fault divorce system does not increase the divorce rate. In Korea, the doctrine of abuse of rights under Article 2 of the Korean Civil Act can serve the function of a harshness clause, and the property division system can effectively handle post-divorce maintenance. Therefore, we no longer need to hesitate to transition to a no-fault divorce system.

14. Reconsideration of the Assignment Order, 41(1) J. Prop. L. 87 (2024)
    Abstract

    An assignment order represents a court decision transferring a debtor's monetary claim against a third party to a judgment creditor as payment substitute. The positions of both debtor and third party mirror those in claim assignments, with the judgment creditor receiving de facto priority payment effects. Assignment orders are widely applied under Korean law and used more frequently than comparable German or Japanese systems. As an exception to the equality principle, careful scrutiny of requirements and effects is advisable. The court's ordered transfer differs from contractual assignment, and the judgment creditor assumes insolvency risk while gaining exclusive claim attribution benefits. Terminology should consider replacing "order" with "determination," and the debtor's third-party claim should consistently be termed an "attached claim." Future claims require identifiable specificity, though requiring near-term probability warrants reconsideration. Transferability assessment should occur at requirement review stages, not preliminary attachment phases. When hypothec subrogation conflicts with assignment orders, precedence arguments lack sufficient justification. Creditor subrogation lawsuits render subsequent assignment orders invalid, potentially undermining procedural stability.

15. Extent of Subrogation of Claims in Public Insurance, 27 Theory & Prac. Priv. L. 161 (2023)
    Abstract

    The scope of an insurer's subrogation rights becomes a contentious issue when the insured amount is less than the total value of the insurance, and the rights of the insured victim are diminished due to their comparative negligence. The Supreme Court shifted precedent by adopting negligence set-off after deduction for public insurance recipients. This approach prioritizes victim protection and social security objectives, and the insurer's subrogation is limited to portions corresponding to the wrongdoer's liability. While balancing insurer and victim interests appropriately, the doctrine requires legislative and policy refinement due to statutory interpretation concerns and the increased financial burden on the state insurer.

16. A Study of Orphan Drug Designation from a Legal and Policy Perspective, 23 J. Comp. L. 411 (2023)
    Abstract

    In Korea, the designation of rare diseases and orphan drugs is based on the rarity of the disease and the benefit of the drug. With advances in diagnostic technology, activation of health check-ups and an increase in the elderly population, the number of rare diseases is expected to increase. Government policies and regulations concerning orphan drugs have a significant impact on their development and distribution. The designation of orphan drugs is important not only for patients and their families, but also for national finances and the entry of pharmaceutical companies into orphan drug development. Therefore, the formulation of regulatory policies should be carefully considered in terms of improving access for rare disease patients, providing incentives for orphan drug development, and allocating scarce resources. To maximize the benefits of orphan drug regulation, it is necessary to raise awareness of the benefits of orphan drugs and to increase investment in their development, thereby promoting the growth of the orphan drug market. Designation of orphan drugs should consider both the rarity and severity of the disease, as well as the potential marketability of the drug. In some cases, it may be appropriate to de-designate orphan drugs based on a cost-benefit analysis. Overall, a balanced approach is needed to ensure that orphan drugs are available to those who need them while maintaining fiscal responsibility.

17. Analyzing Temporal Constraints on the Exercise of the Right of Formation in the Absence of Statutory Provisions, 23 J. Law & Pol. Res. 241 (2023)
    Abstract

    The right of formation must be exercised within the exclusion period, and whether the exclusion period has passed is a matter of ex officio investigation, which the court must investigate and consider at trial even if there is no claim by the parties. The interpretation of the exclusion period of the right of formation is therefore an important part of practice and determines the existence of the legal relationship itself. It is not appropriate to stipulate the period of exclusion of the right of formation exercised through legal acts in the same way as formation effected through a court-intervened formation judgment; the period of exclusion should accordingly be resolved not by legislation but by interpretation. In determining the exclusion period of the right of formation in a specific case, the purpose to be achieved through the contract, the need to quickly establish the legal relationship, and socio-economic efficiency should be examined.

18. Liability for Damage Caused by Defective Public Facilities and Protection of Users, 9 J. Consumer L. 49 (2023)
    Abstract

    Recently, the Supreme Court issued a ruling that denied the responsibility of local governments — which are responsible for the installation and management of U-turn guide signs and auxiliary signs — for accidents that occurred at intersections where such signs did not reflect the actual situation on the road. However, this ruling seems to have neglected the basic purpose of traffic safety facilities. Traffic safety devices are installed to prevent road hazards and ensure traffic safety, so they must be easily recognizable so that even inexperienced drivers can make accurate decisions in a short time. In the above case, the Supreme Court's decision can be criticized in that the defendant local government was able to replace the sign without incurring large costs, and the public official belonging to the defendant was apparently able to recognize it. When the public facility contributes to an accident, it should not be allowed to deny the responsibility of the state or local government, even if a partial reduction for comparative negligence is granted. Recognition of the responsibility of public facilities for damages ultimately depends on the extent to which victims are compensated and the issue of effective compensation. In practice, the state or local government will first pay the entire compensation amount to the victim and then exercise its right to compensation against the party that caused the occurrence or extension of the damage; this is a problem that should be solved by exercising the right to compensation, not by refusing to recognize the responsibility of the state or local government. The basic reason for recognizing the responsibility of public facilities is to reduce social losses due to accidents by ensuring that the state or local governments install and manage traffic safety facilities effectively. Therefore, it is not desirable to limit the scope of recognition of this responsibility; if local governments face financial difficulties in compensating damages, the insurance system should be used in a practical way, such as subscribing to the compensation mutual aid program.

19. Legal Liability for Damages Related to Cryptocurrency Transactions, 30 J. Comp. Priv. L. 45 (2023)
    Abstract

    Cryptocurrency is an intangible asset with property value: it can be bought and sold according to its exchange value, and profits and losses can be realized according to its market price. The asset nature of cryptocurrencies is the basis for civil liability for damages related to cryptocurrency transactions, which fall within the regulatory domain of property law. Such transactions involve at least one contractual relationship, and the cryptocurrency trading platform is obliged to provide sufficient information regarding the user's rights and obligations in the pre-contractual phase and to obtain the user's informed consent. Where a user suffers damage due to the platform's intent or negligence, the platform must compensate the user to a reasonable extent, calculated in light of the platform's degree of negligence and the user's contribution. Platforms can also be held liable in tort: breach of contract can indicate tortious conduct, and violations of consumer protection, personal information, investor protection, and administrative laws can ground civil tort liability. Foreign case law shows that specific performance may be denied in such cases while liability for damages is recognized; if the value of the cryptocurrency has declined or the cryptocurrency no longer exists at the time of compensation, damages may be based on the market price at the time of the loss, at the plaintiff's choice. Much remains to be done to ensure the safety and security of the cryptocurrency market for all participants.

20. Short-term Extinctive Prescription for Torts Damages in which Minors are Victims, 26 Theory & Prac. Priv. L. 159 (2022)
    Abstract

    In cases involving claims for compensation for tort damages, civil and criminal proceedings over the same tort are often pending at the same time, and the progress of the related case can be an indirect fact for determining when the victim became aware of the perpetrator and the damage. Article 766(1) of the Civil Act provides that the claim lapses by prescription three years from the date the injured party or their legal representative becomes aware of the damage and the identity of the person who caused it — a subjective standard whose application calls for predictable criteria. Determining the threshold case by case incurs legal costs, so establishing criteria for the starting point of the extinctive prescription enhances legal stability, reduces social costs, and improves predictability for both parties. This article proposes such criteria: where the related case is a civil suit to which the victim is a party, the starting point should be the pronouncement of the district court's judgment; where the victim is not a party and only a similar case is pending, the point when the victim learned of the judgment; where the victim filed a criminal complaint, the day the judgment became known through the crime victim notification system; and where a first-instance ruling unfavorable to the victim is overturned on appeal, the finalization of the judgment establishing the perpetrator's responsibility. Legislative alternatives — interruption, suspension, or extension of the prescription period, or abolition of the short-term extinctive prescription for tort claims — are also considered, with the good-faith rejection of a prescription defense reserved as a last resort.

21. Liability for Damages Due to Violation of Supervisory Duty by the Legal Guardian of the Mental Patient, 23 Korean Soc'y L. & Med. 133 (2022)
    Abstract

    Supreme Court Decision 2018Da228486, decided July 29, 2021, held that Article 750 of the Civil Act, rather than Article 755, is the proper basis for liability for damages arising from a legal guardian's violation of the duty to supervise a mental patient. This judgment recognizes that a legal guardian can be held liable in tort under Article 750 for neglecting the duty of supervision over a mental patient, because a duty of protection carries with it a duty of supervision under law. However, unlike Article 755(1), which explicitly requires a statutory duty of supervision, Article 750 sets out only general tort liability. Thus, to recognize tort liability under Article 750, it is not necessary that the duty of supervision have a statutory basis — in such cases, the duty of supervision may also be recognized on the basis of customary law or sound reasoning. A legal guardian's duty of supervision is not a general duty to prevent all consequences of a mental patient's conduct, but a duty within a reasonably limited scope. Accordingly, responsibility should be recognized only where the objective circumstances make it appropriate to hold the legal guardian liable for the mental patient's acts. Under the Act on the Improvement of Mental Health and the Support for Welfare Services for Mental Patients, a legal guardian cannot even be granted the authority needed to fulfill a supervisory duty aimed at preventing the mental patient from harming others.

22. Legal Approaches to Price Discrimination and Price Fixing through Machine Learning, 659 Legis. 243 (2021)
    Abstract

    Machine-learning AI could allow sellers to set prices close to each consumer's maximum willingness to pay, and to make implicit price adjustments among competing sellers. It is therefore necessary to review the legal regulation of price discrimination and price fixing in this context. In particular, it is essential to recognize that the data used for machine learning is personal information that consumers have often provided without knowing its value, and that privacy preferences differ from person to person. However, before conduct can be treated as price discrimination or price fixing, it is necessary to understand in detail the factors that machine-learning AI actually considers in setting prices for each consumer. A more extensive and detailed discussion is needed going forward. Through such discussion — broadening our thinking about what kind of regulation should be pursued from the standpoint of competition law — it will be possible to promote a form of coexistence that maximizes the economic value of data by enabling its fair and transparent use.

23. A Study on Legal Interest of Confirmation of Lawsuit for Negative Confirmation, 38 J. Prop. L. 323 (2021)
    Abstract

    Legal interest of confirmation is the requirement to file suit in a lawsuit that confirms the nonexistence of an obligation. An action demanding a declaration of the nonexistence of an obligation has both a conflict-prevention function and a provisional dispute-resolution function. Legal interest of confirmation can be seen as a concept inherent in the lawsuit for confirmation. Still, since it is not specified in the Korean Civil Procedure Act, rigorous demands for the legal interest of confirmation should be avoided. In principle, it is reasonable for courts to affirm the legal interest of confirmation as long as it does not lead to litigation abuse. The dissenting opinion in Supreme Court Decision 2018Da257958, 257965 holds that a legal interest of confirmation is permissible to raise a lawsuit confirming the nonexistence of an obligation only where there are exceptional circumstances justifying an immediate confirmation interest. However, it is unreasonable to require a legal interest of confirmation without a stipulated statutory provision and then additionally require exceptional circumstances, as this effectively inverts the principle and the exception. A party seeking to use the litigation system should not be blocked by the court in advance. In a lawsuit confirming the nonexistence of an obligation, the legal interest of confirmation should be denied only in very limited cases, such as abuse of the right of action. On the other hand, in the case of unforeseeable subsequent damages, the res judicata of the previous judgment does not apply, so this is irrelevant to the discussion of the legal interest of confirmation. The legal interest of confirmation should be judged in light of its relationship with res judicata. In some cases in the United States, the debtor who files the lawsuit confirming the nonexistence of an obligation bears the burden of proof, but the court should not overturn the general principle governing the burden of proof. Nonetheless, the court should judge the dispute by waiting for it to mature so that the creditor does not suffer an unexpected disadvantage.

24. A Study on Condominium Buildings and Land Use Right, 28 J. Comp. Priv. L. 1 (2021)
    Abstract

    In Korea, land and buildings are registered as separate and independent objects on separate registration certificates. However, since a building cannot exist apart from the land beneath it, it is crucial to understand the organic relationship between land and buildings. Article 20(2) of the Act on Ownership and Management of Condominium Buildings provides that, absent a contrary agreement in the bylaws, an owner of a partitioned property cannot dispose of the land use right separately from the exclusively owned area, thereby establishing the unity of the exclusive part and the land use right. If the owner of a partitioned property lacks a land use right, Article 7 of the Act grants the landowner the right to demand that the owner of the partitioned property purchase the land — reflecting the traditional priority given to land ownership. However, the owner of a partitioned property who lacks a land use right is not in the same position as someone who built a building on another's land without any title, and there are social demands to protect such owners. Since the Act treats the land use right as subordinate to condominium ownership, it would be more appropriate, from a legislative standpoint, to grant a land use right to the owner of the partitioned property; in such a case, the landowner should select the type of land use right, with the court fixing the fee upon a party's request. The Supreme Court has ruled that even where a new exclusive part is created through an extension of a condominium building, the land use right attached to an existing exclusive part cannot automatically be diverted to the extension. However, in the case of a condominium building belonging to a single owner, treating that owner's land ownership as also constituting the land use right for the new exclusive part would better accord with the parties' intent. From a strictly legal standpoint, land and buildings are separate and independent real property. Yet because the value of a building is in practice reflected in the value of the land beneath it, it is practically impossible to separate the utility generated by a building from that of the land. This point deserves attention in any examination of condominium buildings and land use rights.

25. Tort Liability for Breach of Contractual Obligation in Japan, 185 Just. 69 (2021)
    Abstract

    Traditionally, the relationship between contractual and tort liability has been discussed mainly in terms of the competition, or concurrence, of claims. The discussion should instead shift to whether tort liability arises where one party to a contract intentionally or negligently violates a contractual duty and thereby causes damage to the other party. If contractual factors are excluded in principle when assessing illegality — a requirement of tort liability — then tort liability cannot be recognized simply because a contractual obligation was violated. On the other hand, some take the position that a contractual duty of care cannot be excluded when assessing illegality. In Japan, tort liability in this context is interpreted in various ways. According to the precedents of the Supreme Court of Japan, contractual factors such as a fiduciary duty arising from a delegation contract are taken into account in establishing tort liability. If contractual elements are treated as relevant to the requirements of tort liability, the entire process from the conclusion of the contract through its performance can be grasped comprehensively and continuously. However, rather than directly adopting this interpretation in Korea and hastily recognizing tort liability wholesale, it is necessary to examine the types of contracts and the content of the obligations involved in greater detail.

26. A Study on Wrong Allocation in Civil Enforcement and Unjust Enrichment: Focused on Supreme Court Decision 2014Da206983 Delivered on July 18, 2019, 24 Theory & Prac. Priv. L. 165 (2021)
    Abstract

    Where a creditor entitled to receive an allocation was unable to do so, that creditor may bring a claim against the person who wrongly received the allocation in civil enforcement proceedings. An objection to allocation only provides a relative resolution between the parties to the civil enforcement allocation. The question then arises whether a creditor who did not receive the allocation may bring a claim for restitution of unjust enrichment against the person who received the wrong allocation. Supreme Court Decision 2014Da206983 held that a creditor who did not object to the allocation in the civil enforcement proceeding still retains the right to claim unjust enrichment. A creditor holding a lien may claim restitution of unjust enrichment at any time, because that creditor can directly assert a claim against the exchange value of the debtor's specific property. Accordingly, even if the creditor raised no objection to the allocation, the creditor's right to claim restitution of unjust enrichment should be recognized. By contrast, a creditor without a lien cannot claim restitution of unjust enrichment unless that creditor objected to the allocation in advance.

27. The Action for Subsidy (Action à Fins de Subsides) in France, 23 Theory & Prac. Priv. L. 163 (2020)
    Abstract

    The action à fins de subsides (action for a subsidy) in France does not aim to establish paternity, but rather to promote the welfare of the child. This action is available where the parent-child relationship has not been properly established: a person born out of wedlock becomes the plaintiff, and in certain cases the mother or guardian may bring the action on the child's behalf. The defendant is a person who had a relationship with the mother during the period of conception. The debtor must pay periodic subsidies to the beneficiary. Even if a legal parent-child relationship is later established between the beneficiary and a third party following the court's decision, the debtor cannot demand reimbursement of the subsidies already paid. In modern times, advances in genetic testing have raised questions about the practical value of this action. However, it is difficult to view the subsidy system as unnecessary simply because biological truth can now be discovered. Even today, the subsidy system retains value in cases where establishing a parent-child relationship is difficult, such as in cases of incest or rape. It is also worth noting that a form of risk-based liability has been recognized, and that the burden of proof has in practice been shifted onto the potential father.

28. A Study on the Oath in French Civil Litigation, 70 Kyungpook Nat'l U. L.J. 161 (2020)
    Abstract

    In France, an oath is prescribed by the Civil Code as a method of evidence. In Korea, the Civil Procedure Code stipulates the oath of witnesses, while France deals with the oath as evidence under the Civil Code. The French oath may be misunderstood as a witness's testimony, but it is not a promissory oath declared prior to carrying out certain duties — it is a judicial oath serving as evidence. Therefore, it should be noted that even though the same term is used, the oath in the French Civil Code is a completely different concept from the oath in the Korean Civil Procedure Code. The judicial oath in the French Civil Code is a statement in which one of the parties acknowledges the truthfulness of facts that are favorable or disadvantageous to him or her, made in a certain form before the court. It is divided into an oath for the conclusion of the trial and an oath by authority of the court. Once an oath has been made by either party to terminate the trial, the other party cannot prove that it is false, and the court has no discretion over the fact stated in the oath. On the other hand, the court may require an oath from either party at its discretion, which serves only as one form of evidence. The oath by authority of the court plays only a complementary role, and in terms of proof, the court is not bound by that oath. In Korea, there is no concept corresponding to the oath of French civil litigation. The oath in the French Civil Code is meant to give public confidence to statements made by the parties in their own favor. In the sense that trust can have the effect of reducing external costs borne by society as a whole, the concept of the oath in the French Civil Code can be used as a basis to reconsider the scope of pleadings and evidence in our civil proceedings.

29. Actions Relating to Filiation in France, 34 Korean J. Fam. L. 307 (2020)
    Abstract

    Actions to establish filiation in France can be classified as an action to establish maternity, an action to establish paternity, a judicial action to reinstate the presumption of paternity, and a judicial action to confirm possession of status (possession d'état). Actions contesting filiation can be classified as actions contesting maternity or paternity and actions contesting possession of status. The French Civil Code appears to be attempting to build a new relationship with realism, considering whether a person can be recognized as a parent within the social network. At the same time, the civil courts' authority to rule on questions of filiation has been extended into criminal procedure. In recent years, family peace appears to have taken priority over biological truth in Korea. The Korean Supreme Court has held that even where a wife received sperm from a third party through artificial insemination with her husband's consent during the marriage, the child is presumed to be the husband's child — a precedent that assumes the legal relationship need not correspond to biological truth. It is worth reconsidering the direction of Korean policy and legislation on this point. In the future, when revising the filiation provisions of the Civil Code, it will be necessary to take into account not only the stability of the child's status and family peace, but also evolving social perceptions in our society.

30. The Remedy for Ecological Damage in France, 19 J. Law & Pol. Res. 571 (2019)
    Abstract

    The French Environmental Code not only implements the EU Environmental Liability Directive but also provides for group litigation. In France, there is no strict distinction between public and private law, and the relationship between the two is open and flexible. In the case of group litigation under the Environmental Code, the action is brought in the form of a civil action, and the French Civil Code also provides for periodic penalty payments to compel compliance. These features of French law offer a new perspective for Korean law. In France, environmental group litigation originates from the concept of pure environmental damage, or ecological damage, and collective interest. In the past, environmental benefits were generally understood not to be subject to civil action, as they were considered public-interest in nature and were recognized even where no individual's legal interest was infringed. In recent years, however, the French Supreme Court (Cour de cassation) has tended to broadly recognize restitution and compensation for ecological damage involving significant harm to the components or functions of ecosystems or to the collective benefits people derive from the environment. There is also a tendency to relax the standing requirements for plaintiffs, to recognize compensation for precautionary measures and intermediate damages, and to recognize liability for environmental harm even without fault where a factor posing a serious risk to human health has been introduced. In France, discussion of the estimation and calculation of environmental damages has developed considerably, and these developments are worth considering for Korean law.

31. Contractual Exchange of Personal Digital Data and Digital Contents, 26 J. Comp. Priv. L. 245 (2019)
    Abstract

    As technology for the commercial use of personal data advances, users provide more digital personal data to online platform operators, often without even realizing it. Digital personal data is increasing in both quality and quantity. Since a significant portion of an online platform's revenue derives from users' digital personal data, and since, when an online platform operator sells its business, the users' digital personal data is factored into the value of the transferred assets as a special asset, digital personal information has real economic value. However, an individual who has consented to the provision and processing of his or her digital personal data can hardly be said to recognize that economic value. An agreement between an online platform operator and a user, under which digital content is provided in exchange for digital personal data, constitutes an exchange. Because the user who provides personal data in exchange for a service should be regarded as a consumer, it is necessary to examine the problem of consumer protection in the contractual exchange of personal digital data and digital contents. From the standpoint of contract law, the operator should not use the digital personal data provided for any purpose other than its original purpose. The terms and conditions governing the use of digital personal data should be governed by contract. An opt-in approach should be adopted at the conclusion of the contract, and the user's control over his or her digital personal data should be recognized. The subscription terms of online platform operators can be regulated under the law governing standardized contracts. Consideration should also be given to ways of preventing operators from refusing to supply digital content to users who do not consent to the processing of their personal data. Finally, online platform operators should be prevented from abusing their position to unfairly control the provision of their services.

32. A Study on a Lawsuit for Suspension of the Extinctive Prescription, 36 J. Prop. L. 107 (2019)
    Abstract

    The Supreme Court recently issued two significant en banc decisions concerning lawsuits for the suspension of extinctive prescription. One addressed whether there is a legal interest in litigation for a repeat lawsuit to suspend extinctive prescription (Supreme Court Decision 2018Da22008, decided July 19, 2018), and the other addressed whether a new type of confirmation lawsuit is permissible for that purpose (Supreme Court Decision 2015Da232316, decided October 18, 2018). Where a favorable final judgment already exists but the ten-year prescription period is about to expire, it is reasonable to recognize a legal interest in a repeat lawsuit to suspend extinctive prescription. In light of the contract-law principle "pacta sunt servanda," an obligation should in principle be fulfilled, and extending the prescription period does not place the debtor at any particular disadvantage. Nor, in such a case, is there any expectation or reliance interest on the debtor's part that the creditor will not exercise the claim. On the contrary, the dissenting opinion risks sending the wrong signal to debtors — that a debt fixed by judgment can be extinguished and effectively discharged merely by evading payment for ten years. In addition, the Supreme Court concluded that a new type of confirmation lawsuit is permissible, allowing the creditor to choose whichever form of action best suits the creditor's circumstances and needs. However, this new type of confirmation lawsuit can only confirm facts or legal rules. If the creditor wishes to bring suit, the creditor should consider a lawsuit confirming the claim itself.

33. A Study on Cryptographic Assets and Related Transactions, 22 Theory & Prac. Priv. L. 45 (2019)
    Abstract

    Unlike ordinary money, cryptocurrency is distributed and stored across P2P networks worldwide without a central bank issuing it. To obtain cryptocurrency, one may operate a server computer known as a miner, buy it on a cryptocurrency exchange, or receive it in exchange for providing goods or services. In a cryptocurrency transaction, the object of the transaction is not the cryptocurrency itself, but its digital address. In the case of person-to-person cryptocurrency transactions, the actual subject of the transaction is only the private key, and the nature of the transaction itself is simply a sales contract. A cryptocurrency exchange holds cryptocurrency on behalf of users but does not have ownership of it or the right to use it. Since the exchange is obligated to return the same or equivalent cryptocurrency to the owner, the relationship between the exchange and the individual can be regarded as a form of storage (deposit) contract. A cryptocurrency-mediated transaction is a contract of exchange, in which the parties agree to exchange some property right other than money. Where a seizure order is issued against the right to claim the return of cryptocurrency, a creditor may request the court to issue a collection order or, in lieu of collection, a sale order directing the execution officer to sell the claim in a manner fixed by the court. However, if an individual does not keep the cryptocurrency at an exchange but merely stores it in a cryptocurrency wallet, the court will treat and seize it as movable property.

34. A Study on Confirmation of Existence of Maternal Relation and Division of Inherited Property, 65 Kyungpook Nat'l U. L.J. 173 (2019)
    Abstract

    Confirmation of the existence of a biological parental relationship is retrospectively effective from the time of the child's birth, provided that a right already acquired by a third person is not thereby prejudiced. Other co-inheritors are not included within the "third person" referred to in Article 860 of the Civil Code. The Supreme Court held that Article 860, concerning the retroactive restriction on recognition, does not apply to a maternal relationship that does not itself require recognition. In addition, the Supreme Court found that the inheritor could not deny the effect of a division or disposition of inherited property already made by another co-inheritor of the deceased mother — and that this holds true even where the maternal relationship is clarified only after another co-inheritor has already divided or disposed of the inherited property, through the finalization of a declaratory judgment confirming the existence of that maternal relationship. Departing from the existing doctrine that a parental relationship is recognized from birth regardless of retroactive effect, the Supreme Court limited the scope of application of Article 1014. Confirming that the child is in fact her own child within a maternal relationship is not itself constitutive of the relationship. The Supreme Court's judgment is therefore reasonable in this respect. However, because there is no time limit on the right to claim payment of an amount equivalent to one's share of inheritance, the stability of existing legal relationships may be disturbed once a long period of time has elapsed. It is accordingly necessary to find a way to reasonably reconcile the interests of the confirmed inheritor and other affected parties.

35. The Effect of Partial Repayment by an Obliger Who Is Subjected to High Obligation in Semi-joint and Several Obligation, 169 Just. 177 (2018)
    Abstract

    The Korean Civil Code has no express provision on semi-joint and several obligation, but judicial precedent has recognized the concept. In the past, the Supreme Court sometimes applied a theory extinguishing debt in proportion to fault, and at other times a theory extinguishing debt to benefit creditors. In Supreme Court Decision 2012Da74236, decided March 22, 2018, the Supreme Court made clear that it adopted the theory extinguishing debt to benefit creditors, overruling the precedent that had applied the theory extinguishing debt by the ratio of negligence. If semi-joint and several obligation is to be recognized at all, the conclusion of the ruling is sound. More fundamentally, however, this class of cases should be resolved under the law of joint and several obligation rather than a separate law of semi-joint and several obligation, and it is also necessary to consider narrowing the scope of absolute effect in order to protect creditors. The purpose of semi-joint and several obligation is said to be to guarantee full payment of the debt to the creditor regardless of whether any individual debtor has sufficient property. It is difficult to accept that semi-joint and several obligation cannot be recognized without an explicit statutory provision, simply because Article 760 of the Civil Act uses the phrase "in solidarity." The French Civil Code, the German Civil Code, and the Japanese Civil Code are not properly regarded as sources of the concept of semi-joint and several obligation. Even granting the need to protect creditors, it is likewise undesirable to recognize semi-joint and several obligation in the absence of any statutory basis.

36. A Study on Compensation for Damage in Civil Litigation of Japanese Long-term Care Facilities, 19 Korean Soc'y L. & Med. 173 (2018)
    Abstract

    Japan is a super-aged society in which more than 20% of the population is over 65. As a result, many accidents occur in long-term care facilities, giving rise to a substantial body of civil litigation. Japanese courts have in many cases held long-term care facilities liable for injuries suffered by elderly residents on their premises. These cases can be divided into (1) falls, (2) wandering, (3) suffocation, (4) bedsores, and (5) accidents among facility users. In most cases, the courts found that the facility had violated its duty to protect its users — not only where the manager or an employee failed to watch over and care for the elderly resident, but in some cases even where the facility failed to maintain adequate staffing and physical systems. The key consideration in such judgments is whether the facility could foresee the possibility of an accident and whether it took measures to prevent one. Japanese courts also recognize a shift in the burden of proof in order to expedite victims' recovery. However, the liability of facilities for damages should not be made so onerous that operators become reluctant to admit residents and enter into care contracts.

37. A Study on the Scope of Claim Right of Vicarious Compensation, 35 J. Prop. L. 149 (2018)
    Abstract

    The Supreme Court recognized the claim right of vicarious compensation with respect to insurance proceeds received by a debtor, ruling that the claim extends to the entire insurance payment and is not limited to the sale proceeds. If the insurance proceeds exceed the purchase price, who should receive the excess? This should be assessed in light of the value the parties attached to the object at the time they entered into the contract of sale, in anticipation of the market price up to the time of performance. In principle, the market price at the time performance became impossible should serve as the standard, and any later increase in market price should be considered only if the debtor knew or could have known of it. This yields the same result as granting the creditor the claim right only up to the extent of the creditor's actual loss. It is unreasonable to assume that a creditor, who merely entered into a contract, should receive vicarious compensation exceeding that loss without any additional effort or risk. Rather, it is the debtor — who exercised talent or ability to generate the excess profit — who is better positioned to enjoy it. Allowing the creditor to claim the excess profit through the claim right of vicarious compensation would risk pre-emptively blocking efficient breach. In this respect, it is reasonable that the High Court limited the claim to the extent of the creditor's damages. However, the specific amount of loss should be calculated as of the time performance became impossible. The Supreme Court's reasoning — that the claim extends to the entire insurance payment received by the defendant — should be revised. In practice, a creditor seeking to exercise the claim right of vicarious compensation will need to prove the market price, but as a practical matter the insurance proceeds received by the debtor as vicarious compensation will be assumed to represent the market price; the debtor should accordingly bear the burden of proving any excess profit.

38. A Comparative Study on Negotiorum Gestio (Management of Another's Affairs) in France and Korea, 18 J. Law & Pol. Res. 539 (2018)
    Abstract

    Through Ordinance No. 2016-131 of February 10, 2016, reforming the law of contracts, the general regime of obligations, and the law of proof, the French legislature modernized the rules applicable to gestion d'affaires (management of another's affairs, akin to negotiorum gestio) and payment of the undue, and formally established the concept of unjust enrichment. The purpose of this study is to compare and analyze gestion d'affaires under the French Civil Code as revised in 2016 and under the Korean Civil Code. There are not many cases in which gestion d'affaires has been recognized under the Korean Civil Code. The French Civil Code, however, appears to recognize gestion d'affaires more readily. In this article, the provisions and case law of each country are compared to identify the differences between the Korean and French Civil Codes. First, considering the ideological basis of gestion d'affaires, the Korean Civil Code emphasizes generosity and mutual aid, whereas in France the courts emphasize the allocation of risk and interest: French jurists maintain that the French Civil Code carefully balances the interests of the parties involved so that managers neither suffer losses nor reap profits as a result of managing another's affairs. Second, there are also differences in how gestion d'affaires is defined: the French Civil Code more broadly provides for the rights of managers. Finally, the French Civil Code protects third parties more faithfully, reflecting an emphasis on the security of transactions. We should reconsider what gestion d'affaires ought to look like, and how carefully to coordinate the rights of managers and third parties. This comparative legal examination of gestion d'affaires in France and Korea should make gestion d'affaires more useful in Korea.

39. A Study on Special Benefit and a Spouse's Share of the Inheritance, 10 Legis. & Pol. Stud. 27 (2018)
    Abstract

    The Constitutional Court held that Article 1008 of the Civil Code cannot be said to infringe the property rights of an heir who is a spouse. The article is meant to secure fairness among co-inheritors, but it should also be considered that the deceased's intention ought to take precedence in the disposition of property that the deceased maintained and formed: if the deceased intended to give property to his or her spouse, that intention should be respected. The Supreme Court has addressed whether a gift qualifies as a special benefit and is treated as an advancement of inheritance, but it is not reasonable for the Supreme Court, in determining special benefit, to give practical weight to the spouse's contributory portion. Legislative consideration could be given to excluding the presumption of special benefit according to the deceased's intent, even while the gift is still treated as an advancement of the inheritance share. It is also possible to consider presuming that a gift to co-inheritors other than the spouse constitutes such an advancement.

40. Special Rules on the Statutory Mortgage of Spouses and Persons under Guardianship in France, 32 Korean J. Fam. L. 229 (2018)
    Abstract

    A legal hypothec (hypothèque légale) is one that the law grants automatically to certain creditors or in respect of certain claims, and which becomes effective once the creditor decides to register it. French law provides for three cases of legal hypothec between spouses. First, under the participation-in-acquests regime, at the time of liquidation each spouse holds a participation claim against the other; registration may be made before dissolution of the matrimonial regime, in which case it takes effect only from that dissolution and only if the relevant immovable property still exists in the debtor spouse's estate at that date. In the case of early liquidation, registration made before the request takes effect from the date of the request, while registration made afterward takes effect only from its own date. Second, a legal hypothec may be registered in favor of a spouse who brings a judicial claim seeking to establish a debt owed by the other spouse or that spouse's heirs; such registration is provisional, since its effectiveness depends on the claim succeeding. If the claim is upheld, the decision must, at the claimant spouse's initiative, be noted in the margin of the provisional registration — on pain of its nullity — within one month of the date the judgment becomes final; this then forms the basis of a definitive registration that replaces the provisional one, with priority fixed as of the date of the provisional registration. Third, a legal hypothec may be granted where a spouse petitions the court for authorization to replace the other spouse in acts of joint or individual management of that spouse's own property, on grounds of incapacity or hostility; the court may authorize the replaced spouse to register a hypothec over certain immovable property belonging to the other spouse, and if new circumstances later warrant it, the court may order either an initial registration or supplementary registrations, or the creation of a pledge. In addition, a legal hypothec for persons under guardianship (tutelle) may be granted to minors or incapacitated adults over the immovable property of the guardian or legal administrator. At the opening of any guardianship, the family council — or, absent one, the judge — decides, after hearing the guardian, whether registration should be required over the guardian's immovable property. The legal hypothec provided for under the French Civil Code offers suggestive insights, and we should be able to draw on its content in developing the Korean Civil Code.

41. A Study of Tort Liability for Defects in Construction, 82 Korean J. Civ. L. 203 (2018) — Yulchon Early-Career Scholar Award, The Korean Association of Civil Law
    Abstract

    This study examines tort liability for defects in construction. A person who contracted with a construction company (the "contractor") may hold the company (the "builder") that built a defective building liable under warranty or in tort. But can a person who purchased the defective building from the contractor (the "buyer") — who has no direct contractual relationship with the builder — bring a tort claim against the builder? This question has not yet been discussed in Korea, and there is controversy over whether the builder can be held liable to the buyer in tort. The Japanese Supreme Court recognized the builder's tort liability, ruling that defects in a building must constitute defects in its basic safety. Defects in a building often cannot easily be discovered at the time of completion; while the building is used over a period of time, the defects remain hidden and unrecognized, and only emerge over time, ultimately leaving the building's current owner to bear the cost of repair. Liability for such damage arises from the construction of the building itself, a foreseeable source of harm, so a causal relationship can be recognized and tort liability for the resulting damages should follow — the buyer may accordingly claim compensation for damages caused by the builder's wrongful conduct directly against the builder. Given that construction defects are directly linked to risks of bodily injury or even death, liability for building defects must be assessed more strictly than for other wrongful acts. If a building lacks the qualities normally required for safety, the builder should be liable for its wrongful conduct; it should suffice for the buyer to show that the builder engaged in defective construction and that no cause other than a combination of design and construction defects can explain the harm.

42. A Study on the Tort Liability of a Person who Causes Soil Contamination and Buries Waste on his or her own Land, 33 Land L. Rev. 141 (2017)
    Abstract

    According to the Korean Supreme Court's en banc Decision 2009Da66549, decided May 19, 2016, a person who causes soil contamination and buries waste on his or her own land is liable in tort to a subsequent buyer of that land for the contaminated soil and buried waste if the land is transferred without remediation. This study supports the conclusion of the en banc decision but identifies certain problems in its reasoning. Article 10-3 of the Soil Environment Conservation Act imposes strict liability for damages resulting from soil contamination: the person who caused the contamination must compensate for resulting damages and remediate the contaminated soil. The Court's decision affirms illegality by treating the polluter's landfilling, concealment, and sale of the land as a single course of conduct. Article 211 of the Civil Act provides that an owner has the right, "within the bounds of law," to use, profit from, and dispose of the property owned. Given the limited nature of land resources and the transaction costs involved, it is more efficient to hold the polluter responsible for the landfilling. Where the current owner of the polluted land has borne the cost of remediation, there is a proximate causal relationship between the polluter's failure to fulfill the duty to remediate and the current owner's damage. Because the waste is mixed with soil to form part of the land and no longer has independent economic utility of its own, and because excessive cost would be required to remove the buried waste — and because the polluter intended to treat both the waste and the land as a single asset — the buried waste should be considered to have merged with the land. Consequently, the current landowner cannot exercise a right to claim removal of the waste or prevention of disturbance against the polluter. Even where there is an agreement between the person who caused the soil contamination and buried the waste and the subsequent buyer premised on the existence of the contaminated soil or buried waste, the polluter remains liable to the current owner in damages. It is reasonable to treat the polluter's ongoing failure to fulfill the duty of remediation as constituting a new wrongful act each day, with the extinctive prescription period running separately from the day the plaintiff became aware of each instance of damage.

43. A Study on the Relationship between Unjust Enrichment and Payment of a Thing Not Due, 21 Theory & Prac. Priv. L. 273 (2017)
    Abstract

    Under the general heading "other sources of obligations," this sub-title of the French Civil Code corresponds to the chapter dealing with quasi-contracts. Quasi-contracts are "voluntary acts from which an obligation arises for the person who benefits from them without having a right to do so, and sometimes an obligation for their author toward another." The sub-title comprises three chapters devoted successively to management of another's affairs (gestion d'affaires), payment of the undue (paiement de l'indu), and unjust enrichment. Unjust enrichment is a judge-made doctrine: it was revived from the Ancien Droit by the Cour de cassation to allow compensation for a person who became impoverished for the benefit of another who was enriched without legal cause. Unjust enrichment is subsidiary in character. Historically, restitution of the undue was thought to rest on the theory of cause: cause is an essential element for the validity of legal acts, and payment of the undue constitutes a payment without cause that must be annulled. Rather than grounding restitution of the undue in the theory of cause, other scholars have instead invoked the general idea of unjust enrichment. In the French Civil Code, payment of the undue is governed separately from unjust enrichment. In the Korean Civil Code, Article 742 and the provisions that follow limit the scope of claims for restitution of payments made without legal obligation. In the French Civil Code, however, restitution for payment of the undue is more readily available than under the Korean Civil Code, and French law presupposes the existence of a third party in addition to the two original parties. Comparing the Korean Civil Code with the French Civil Code as revised in 2016 allows for a deeper understanding of the Korean Civil Code.

44. A Study on Enhancing the Inheritance Rights of the Spouse, 31 Korean J. Fam. L. 271 (2017) — Best Paper Award, The Korean Society of Family Law
    Abstract

    Following amendments to the Civil Act, inheritance law concerning the spouse has changed. Although not reflected in the current Civil Act, three amendment bills were submitted to the National Assembly in 2005 and 2006, and in 2014 an amendment to inheritance law was discussed at a special subcommittee of the Ministry of Justice. These proposed amendments appear to reflect the idea of gender equality in the Civil Act and aim to improve the inheritance rights of the surviving spouse. There has been a consensus on strengthening the inheritance rights of the spouse, and this topic has generated considerable discussion. A straightforward way to strengthen the spouse's legal status would be to increase the spouse's share of inheritance. In determining whether a gift should be treated as a special benefit constituting an advance on inheritance, the Supreme Court considers the assets, income, and standard of living of both parties, and the method used to evaluate the contributory portion is also evolving — courts appear to take into account the surviving spouse's livelihood in determining the spouse's contributory portion. When one spouse dies, the important task under inheritance law is to liquidate the property formed during the marriage, and the spouse who contributed to forming that property has the right to have the inherited property liquidated accordingly. This study proposes a revision under which the surviving spouse's share of property formed during the marriage would be liquidated prior to the division of the remaining inherited property. This proposed revision takes into account not only the length of the marriage, but also the age of the surviving spouse and the spouse's contribution to child-rearing and property formation. In addition, the study considers granting the surviving spouse a right of residence for a certain period of time, in order to secure a substantial residence for the spouse. It may be necessary to consider adjusting inheritance rights more broadly in order to maintain the surviving spouse's standard of living.

45. Negotiorum Gestio, Payment of a Thing Not Due, and Unjust Enrichment under the Reformed French Civil Code, 34 J. Prop. L. 335 (2017)
    Abstract

    In 2016, the French Civil Code was reformed. The Ordinance of February 10, 2016 formally recognizes unjust enrichment under that name and clarifies the regime of the other quasi-contracts, an area that had previously generated substantial litigation (Articles 1300 to 1303-4). Article 1300 defines quasi-contracts as purely voluntary acts from which an obligation arises for a person who benefits from them without having a right to do so, and sometimes an obligation for their author toward another; Article 1300 governs management of another's affairs (gestion d'affaires), payment of the undue, and unjust enrichment. A number of conditions must be satisfied for gestion d'affaires to be established (Article 1301): the manager must act knowingly and voluntarily; the manager must intervene without being obligated to do so by law or contract; the manager's action must be spontaneous; the principal must have been unable to act; and the management must be useful. Codifying prior case law, Article 1301-4 recognizes gestion d'affaires even where the manager has a personal interest or a shared interest in the affair. The manager is in principle bound by the same obligations as an agent (mandataire). If the manager's action does not satisfy the conditions for gestion d'affaires but nonetheless benefits the principal, the principal must compensate the manager under the rules of unjust enrichment (Article 1301-5). The regime for payment of the undue is now set out in Articles 1302 to 1302-3. Article 1302 requires restitution of what was paid without being owed; its second paragraph preserves the traditional exception that a natural obligation voluntarily discharged is not subject to restitution. Objective undue payment concerns a debt that does not exist at all. There are two categories of subjective undue payment: one in which a person discharges a debt they do actually owe, but pays the wrong creditor (Article 1302-1), and another in which a person, by mistake or under duress, discharges another person's debt (Article 1302-2). Unjust enrichment exists to compensate for this unjustified transfer of value, by means of an indemnity that the enriched party must pay to the impoverished party (Article 1303). The enrichment may consist in avoiding a loss or in making a saving. Under Article 1303-1, enrichment is unjustified when it results neither from the impoverished party's performance of an obligation nor from that party's donative intent. The enrichment must be causally linked to the impoverishment. Article 1303-2 specifies, in accordance with case law, that compensation is excluded where the impoverishment results from an act performed by the impoverished party for personal profit. The link between the enrichment and the impoverishment need not arise directly between the enriched and the impoverished parties — it may be indirect and pass through an intermediary third party. Unjust enrichment can only be invoked on a subsidiary basis: no other cause of action may be available to the impoverished party. It is necessary to examine the content and sub-concepts of the sources of obligations under the reformed French Civil Code.

46. The Order of Restitution Due to Violation of Legal Reserve of Inheritance, 41 HUFS L. Rev. 247 (2017) (with G.G. Jun; corresponding author)
    Abstract

    Where an heir inherits property that does not reach his or her legal reserve of inheritance, that heir may claim the return of the amount by which the legal reserve was infringed from the donee or legatee. In such a case, the person who infringed the legal reserve must return the gift or testamentary gift received. The Civil Code sets out two principles governing this situation: first, where two or more persons received gifts or testamentary gifts, each must make restitution in proportion to the value received (Article 1115(2)); second, restitution of a gift cannot be demanded until restitution of a testamentary gift has already been made (Article 1116). Where the persons obligated to restore the legal reserve received only gifts, or only testamentary gifts, these two principles do not conflict. But where a person received both a gift and a testamentary gift, the two principles can conflict as to which must be returned first. In Supreme Court Decision 2010Da42624, decided March 14, 2013, the Supreme Court applied Article 1116 preferentially, holding that in claiming restitution for infringement of the legal reserve, one may demand return of a gift only if the legal reserve cannot be satisfied by demanding return of the testamentary gift. However, this outcome favors the heir who received a gift over the heir who received a testamentary gift, which conflicts with Article 1115(2), which requires restitution in the same proportion as each party's share of the testamentary gifts. This article reviews the above decision and, by examining the French Civil Code — the origin of the legal reserve of inheritance provisions — proposes the authors' view on the preferable interpretation of Articles 1115(2) and 1116 in order to resolve this conflict between the two principles. As a matter of interpretation, Article 1115(2) should first be applied to fix the amount that each donee or legatee must return, after which the order of restitution among the persons obligated to return should follow Article 1116. As a matter of legislative policy, the provisions on the legal reserve of inheritance should be amended so that Article 1115(2) and Article 1116 can operate in harmony.

47. A Study on the Function and the Effect of Exercise of Subrogation Right of a Creditor, 34 J. Prop. L. 1 (2017)
    Abstract

    The subrogation right of a creditor allows the creditor to exercise the debtor's rights where the debtor has failed to do so. Its main purpose is to preserve the debtor's general liability property and thereby safeguard the interests of all creditors. The right derives from the French Civil Code, but unlike France, Korea has a full compulsory execution system, including seizure, injunction, and collection orders, so the subrogation right is not often invoked simply to preserve a creditor's monetary claim. The Supreme Court has affirmed the creditor's right of receipt in exercising the subrogation right, and the majority opinion also affirms priority payment through set-off in the course of exercising it. However, the essence of the subrogation right is not to allow the creditor to obtain direct satisfaction from the third-party debtor; it is a substantive right that permits the creditor a degree of intervention in the debtor's otherwise free exercise of property rights, with the creditor typically satisfied through management of the debtor's property. On the other hand, the effect of exercising the subrogation right, in principle, accrues directly to the debtor. It is reasonable to narrow the scope of the subrogation right to situations that fall outside what a collection order could practically achieve; under the Korean Civil Execution Act, which is already well equipped with a collection system, it is undesirable to recognize the subrogation right broadly merely because the debtor lacks funds and is delaying enforcement of a monetary claim. The subrogation right is a very powerful right, given that the debtor's subjective state — deliberation or negligence — is not taken into account, and the creditor may exercise it without notice of the action or the debtor's consent. If reimbursement were, in substance, recognized as an effect of exercising the subrogation right, the essential character of the compulsory execution system could be undermined. It is reasonable that the debtor remains in the position of creditor vis-à-vis the third-party debtor even after receiving notice, so it would be better to remove Article 405(2) of the Civil Act. The Supreme Court has ruled that where judgment favors the creditor, the judgment becomes effective once the debtor becomes aware of the litigation based on the subrogation right; nevertheless, it is undesirable to allow the debtor's procedural rights to go unrecognized under res judicata. It would be preferable instead to secure the debtor's opportunity to participate in the proceeding by making notice of the action to the debtor mandatory.

48. The Forced Heirship (Réserve Héréditaire) in France, 31 Korean J. Fam. L. 269 (2017)
    Abstract

    The law of June 23, 2006 considerably altered the institution of the legal reserve of inheritance (réserve héréditaire) in France, recognizing the reserve in the form of a return of value. Determining the reserve — and hence the disposable portion — now depends on who the beneficiary is. The 2006 law abolished the reserve for ascendants. This reform is symbolically significant, as it breaks the traditional link between the scope of the maintenance obligation and the scope of the reserve. However, it created, solely for the benefit of the father and mother, a right of return over property given to their predeceased child, exercisable if that child dies without descendants. The surviving spouse's reserve is calculated on a mass composed of all existing property, including bequeathed property; it remains open to question whether the spouse's reserve can extend to property encumbered by a right of return. After the death of one spouse, it is necessary to ensure the survival of the other spouse so that the surviving spouse can maintain his or her previous standard of living. Although the deceased's children grow up and acquire their own earning capacity, surviving spouses should be considered in terms of support, since they generally lack independent earning capacity by that stage of life. A spouse may benefit from gifts, and the law allows a decedent to favor a spouse with a larger share of the estate than the ordinary disposable portion permits — though this should not be taken to mean that the regime governing gifts to a spouse is especially favorable overall. It is desirable that the French Civil Code guarantee testamentary freedom to a certain extent; however, in terms of social stability, the French Civil Code's favorable treatment of spouses in couples with few or no children is not necessarily desirable. We should give serious consideration to reforming the Korean Civil Code accordingly. Many couples in Korea hold property in a de facto communal arrangement, even though it is typically registered in one spouse's name alone; as a straightforward means of strengthening the spouse's status, increasing the spouse's inheritance could be considered. The French Civil Code appears to have sought to harmonize competing interests in the estate — for example, by reducing the legal reserve in deference to the decedent's wishes while still recognizing parents' right to claim the return of gifted property — and this approach may offer useful implications for the Korean Civil Code.

49. The Claim for Recovery of Inheritance by Residents of North Korea and the Exclusion Period, 160 Just. 261 (2017)
    Abstract

    The territory of the Republic of Korea consists of the Korean peninsula and its adjacent islands, and residents of North Korea are likewise citizens of the Republic of Korea. The Act on Special Cases Concerning Family Relationships, Inheritance, etc. Between Residents in South and North Korea provides special rules on claims for recovery of inheritance by a North Korean (including a former North Korean). A North Korean who was unable to inherit from a South Korean decedent because family members were separated by the Korean War, or that person's legal representative, may file a claim for recovery of inheritance under Article 11(1) of that Act. Because the Act does not itself prescribe an exclusion period for claims for recovery of inheritance, the exclusion period under the Civil Act applies to North Koreans by default. As a result, the claim is governed by Article 999(2) of the Civil Act, under which a North Korean effectively has almost no realistic opportunity to be protected by the exclusion period. This study accordingly sets out proposals for amending Article 11 of the Act. Under Articles 8(2) and 9(2) of the Act, a claim concerning the legal relationships of separated family members may be filed within two years from the date on which the impediment to filing — division, absence of free communication, or other cause — is removed. However, it is not appropriate to require a North Korean to file a claim for recovery of inheritance within the same exclusion period applicable to affiliation or confirmation of a legitimate child relationship: before bringing a claim for recovery of inheritance, the claimant should have sufficient time to confirm family relationships, and both the North Korean claimant's ability to exercise rights and the South Korean parties' interest in stability must be considered. It is therefore reasonable to provide that a North Korean's claim for recovery of inheritance may be filed within four years from the date the impediment to filing is removed, notwithstanding Article 999(2) of the Civil Act, and it is also desirable that the North Korean claimant's share of the inheritance in such a case be reduced to the scope provided in Article 1112 of the Civil Act.

50. A Study on the Effect of Obligee's Right of Revocation, 66 Korean Lawyers Assoc. J. 698 (2017)
    Abstract

    On March 9, 2017, the Supreme Court substantially changed its existing position in Decision 2015Da217980. The effect of revocation is only relatively effective, operating solely within the relationship between the obligee (creditor) and the beneficiary; it does not affect the legal relationship between the debtor and the beneficiary. Even where a real estate sales contract between the debtor and the beneficiary is set aside through the obligee's right of revocation and the original status is restored by cancelling the beneficiary's registration, the real estate is treated, as between the creditor and the beneficiary, as part of the debtor's liable property under Article 407 of the Civil Act — but the debtor does not thereby directly acquire the property or become its rights-holder. If the debtor disposes of the real estate recovered from the beneficiary to a third party, that disposition is merely the act of a person without entitlement and is therefore ineffective, so the registration of the third party and any subsequent purchasers must be cancelled. In such a case, the obligee who exercised the right of revocation, as well as other obligees affected under Article 407, may demand cancellation of the invalid registration in order to enforce against the real estate treated as the debtor's liable property. However, under the logic of the Court's existing precedent, one could instead conclude that ownership of the real estate should belong to the debtor, or at least that the debtor's disposition of the recovered real estate should be valid. In this sense, the decision represents a substantive change from the Court's earlier position. A careful refinement of this area is needed, building on the precedent and doctrine that have developed under the existing Civil Act. The central challenge concerning the obligee's right of revocation is how to reconcile the competing interests of preserving liable property and protecting the security of business transactions.

51. Protection of Self-Determination Right to Personal Information and Personal Rights in the Changing Digital Media Environment, 3 J. Media & Defamation L. 99 (2017)
    Abstract

    The proliferation of the internet and the rapid development of information and communication services make it difficult for people to control their personal information once it becomes available online. Personal information has proliferated on the internet in recent years, as have the issues and problems surrounding it. The self-determination right to personal information is understood as a right to information privacy in the United States, but is recognized more as a personal right in Germany. Decisions on whether information should be removed from search engines depend on the nature of the information at issue, its sensitivity to the information subject's private life, and the public interest in access to that information. The so-called "right to be forgotten" has become a subject of considerable controversy in today's digital age. Indeed, in the context of a constantly evolving medium such as the internet, the shared understanding of concepts such as privacy and data protection remains limited. The EU drafted a right to erasure (a right to be forgotten), providing an avenue for EU citizens to ask online search engines to remove certain links from their results. If a way can be found to implement it, the right to delete could have a very positive impact, giving individuals greater control over their data and hence greater autonomy. Protection of personal data and the right to be forgotten should be incorporated into personal rights. Personal data are inseparable from the information subject, and the decision to disclose personal information is itself a manifestation of one's personality. Personal information bears certain similarities to personal rights in the field of civil law; however, considering that in reality personal information is circulated and used economically, the self-determination right to personal information should be regarded as a personal right that also protects property interests. The standard for balancing conflicting interests in erasure-right cases is structurally similar to injunctive relief for infringement of personal rights. The Personal Information Protection Act, the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., and the Act on Press Arbitration and Remedies, Etc. for Damage Caused by Press Reports all provide for a right to self-determination or deletion of personal information, enacted on the basis of a prohibitory injunction related to personal rights. The Civil Act, by contrast, does not directly regulate personal rights, but an owner may demand cessation of disturbance from a person who disturbs his or her personal rights, and may demand prevention of disturbance or security for damages from a person who might do so, by analogy to Article 214 of the Civil Act. The Civil Act should be amended to provide general provisions on personal rights so as to achieve broader protection. Considerable effort has already been invested in protecting personal information and personal rights, but a great deal of work remains to expand the self-determination right to personal information and personal rights amid the changing digital media environment.

52. Self-Determination Right to Personal Information in the Era of Big Data, 14 IT & L. Rev. 151 (2017)
    Abstract

    Personal information protection has attracted a great deal of attention around the world. The self-determination right to personal information forms the normative foundation of the personal information protection regime. This study introduces the case law on the self-determination right to personal information and surveys international trends in privacy regulation. Former U.S. President Barack Obama pushed for cybersecurity legislation, and a number of privacy-related bills were referred to committee. Meanwhile, on January 10, 2017, the European Commission published its long-awaited proposal for an e-Privacy Regulation. The scope of personal information protection should be clearly defined. There is an advantage in that the use of big data can provide companies with entirely new business opportunities. To safely use digital assets posted on social network services, we need to strengthen the various means of personal information protection. Another issue concerns consent to the use of data: the processing of both content and metadata raises certain concerns, since both — metadata sometimes being more sensitive than the content of our online interactions itself — could be used for additional purposes by, for example, our email providers, once the user has consented. How such consent is obtained in practice needs to be carefully addressed. If legislators do not prevent consent from being treated as valid when given under overly broad terms and conditions or through pre-ticked boxes, the e-Privacy Regulation would fall below the standard needed to effectively protect our communications. Legislation in the era of big data should keep pace with the rapid speed at which IT-based services are developing and evolving.

53. Agreements Relating to Prescription under the French Civil Code, 71 Korean J. Civ. L. 267 (2015)
    Abstract

    Through the law of June 17, 2008, the provisions of Title XX of Book III of the French Civil Code were substantially amended. The contractual arrangement of prescription was one of the major advances of this reform. First, the law allows the parties to modify the nominal prescription period. Shortening the length of the ordinary prescription period, which had been considered excessive, was essential from the standpoint of harmonizing with European law. Second, the French Civil Code changed the conditions of validity for agreements relating to prescription. In the past, case law recognized the validity of clauses shortening the period but refused to recognize clauses by which the parties lengthened the applicable period. Today, the law of prescription extends contractual freedom by allowing the parties to lengthen the prescription period up to a limit of ten years, or to shorten it down to a limit of one year. As under prior case law, the parties are also given the possibility of adding to the causes of interruption or suspension of prescription set out in the Civil Code. However, uncertainty remains as to whether the parties may contractually adjust the starting point of the prescription period. Since 2008, proposed reforms of the law of obligations developed as part of the work of the Académie des sciences morales et politiques have concluded with rules concerning other sources of obligations, the general regime of obligations, and their proof. Under these proposals, the parties could not set the starting point of prescription at a date earlier than that on which the creditor was entitled to act — the event that normally marks the starting point of prescription. Although the reform has accentuated the private-interest character of civil prescription under French law, there remain areas where prescription escapes contractual freedom. The principle that no contractual arrangement may defeat the outer time limit (délai butoir), which is a matter of public policy, is expressly affirmed. In addition, no contractual adjustment of prescription is possible with respect to periodic claims or claims relating to personal injury, and parties to insurance and consumer contracts cannot, even by mutual agreement, modify the length of the prescription period or add to its causes of suspension or interruption. This reform thus offers numerous new provisions concerning agreements relating to prescription.

54. The Actio Pauliana (Creditor's Revocatory Action) in French Civil Law, 67 Korean J. Civ. L. 363 (2014)
    Abstract

    A creditor, who cannot be recognized as having a general right to interfere in the affairs of the debtor, may act only by showing that the allegedly fraudulent act is prejudicial to the creditor. The action paulienne allows a creditor to challenge acts that the debtor has performed in fraud of the creditor's rights, and more precisely, to have declared unenforceable against the creditor any transaction by which the debtor has fraudulently diminished the consistency of the debtor's estate in order to evade creditors' pursuit. The action paulienne of Roman law was transmitted to the Korean and Japanese Civil Codes after being incorporated into the French Civil Code, although in Roman law it had characteristics considerably different from those recognized today. In the absence of a fully developed general theory or a genuine tradition, doctrine and case law have gradually elaborated the regime of the action paulienne. The action paulienne concerns three persons: the creditor-plaintiff, the debtor who allegedly committed the fraud, and the third party who is party to the challenged act and defendant to the action. It is directed not against the debtor who committed the fraud, but against the third party who benefited from the fraudulent act. Unlike nullity, which once pronounced produces effects erga omnes, unenforceability deprives the fraudulent act of effect only as against the plaintiff. The action paulienne benefits only the creditor who brings it. It was traditionally accepted that, in the event of the debtor's bankruptcy, an action paulienne brought individually by one creditor nonetheless produced a collective effect for the benefit of all creditors making up the estate, without distinction between those whose rights arose before or after the disputed act, owing to the principles of unity of proceedings and equality among creditors. Several draft reform projects are relevant here — the preliminary draft on the law of obligations by P. Catala, the preliminary draft on contracts by the Ministry of Justice, and the preliminary draft on obligations by F. Terré — and it remains to be seen whether any will ultimately be adopted; nonetheless, these drafts are certainly worthy of scholarly examination. The Korean Civil Code, first adopted in 1960, has never been amended since. In response, the Ministry of Justice has since 2009 pursued an ambitious project to revise the Korean Civil Code. This draft addresses major changes specifically concerning fraudulent transfers. While this draft may have both advantages and disadvantages, it does offer good and worthwhile solutions to many legal problems concerning fraudulent transfers.

55. Neighboring Relations (Relations de Voisinage) in French Civil Law, 63 Korean J. Civ. L. 169 (2013)
    Abstract

    The French Civil Code specifies that a servitude derives either from the natural situation of the land, from obligations imposed by law, or from agreements between property owners. Servitudes deriving from the natural situation of the land and servitudes established by law both concern neighbor relations. Legal servitudes allow for better coexistence among neighboring landowners: no one may cause another a disturbance exceeding the normal inconveniences of neighborhood life. Most servitudes give rise to no indemnity when they are reciprocal — that is, when they impose mutual restrictions capable of burdening both properties alike. Unilateral servitudes, by contrast, are exceptional, and consist mainly of rights of way and drainage of water. Servitudes deriving from the natural situation of the land include the servitude of water drainage, boundary-marking, and fencing. Servitudes established by law serve either the public or municipal interest, or the interest of private individuals. The State and local authorities have created various servitudes of public utility, which benefit a public body or serve the general interest; these do not concern neighbor relations. Servitudes of private utility include party walls and ditches, distances required for planting, construction, or the opening of windows, and rights of way for enclosed land. The Civil Code sets out certain distance requirements to be observed when planting, building, or opening windows facing a neighboring property. Plantings may be made only at the distance prescribed by regulation, local custom, or, failing that, by law; these statutory distances are merely default rules, and if they are not observed, the neighbor may obtain removal or reduction of the planting without having to show any particular harm. Buildings may in principle be erected up to the property line. The legislature drew a distinction between "jours" (light openings) and "vues" (windows offering a view): jours are opaque and cannot be opened, so the owner of a wall may install them even directly on the boundary line, without the neighbor's consent, provided only that they are set at a sufficiently high level. For vues, the law instead prescribes minimum distances, distinguishing between direct and oblique views. The Civil Code allows a landowner to demand, against indemnity, a sufficient right of way across a neighbor's land to reach the public road — corresponding to a right of access to the public road. An enclosure (enclave) exists where a plot surrounded by land belonging to other owners has no, or an insufficient, outlet onto the public road; this right of way is justified by the need to permit normal use of the enclosed land, and the indemnity owed is proportionate to the damage the right of way may cause. The law should organize certain relationships among private individuals — relationships that may involve neighborhood ties and servitudes, and that may combine rights and obligations — so as to allow better use of land and to respond to the demands of the times.

Book Chapters

1. Code civil des Français [translated into Korean], L'Association Henri Capitant coréenne (Parkyoungsa, 2023) (collaborative work by all members)
2. Commentaries on the Door-to-Door Sales Act, Lee, B.J. et al. (Jeongdok, 2023)
3. Supreme Court Case Study Practice [XV], Supreme Court Comparative Law Research Society (The Jurisdiction Development Foundation, 2022) — chapter: “Recognition of Tort Liability for Breach of Contractual Obligations” [this article influenced the Korean Supreme Court Decision of June 24, 2021 (Case No. 2016Da210474)]
4. Comparative Research on Korean and French Civil Law, Festschrift in honor of Professor Hyo-Soon Nam (Parkyoungsa, 2021) — chapter: “Changes and Developments in French Divorce Law”
5. Commentaries on the Revised French Law of Obligations, L'Association Henri Capitant coréenne (Parkyoungsa, 2021)
6. Commentaries on 10 Major Family Law Precedents of 2018 and 2017 (Sechang, 2019 and 2018)
7. La solidarité: Journées Françaises [LXIX], Association Henri Capitant (Bruylant, 2021) — chapter: “Solidarité et Politiques Fiscales en Corée” (in French)

Selected Presentations & Invited Talks

• L'Écosystème Réglementaire de l'IA en Corée du Sud, Café de l'immatériel, Institut de recherche juridique de la Sorbonne, Université Paris 1 Panthéon-Sorbonne, Paris, France (2025)
• Legal Analysis of Korea's Framework Act on Low Birth Rate in an Aging Society, Comparative Perspectives on Family Law and Social Changes Conference, Robbins Collection Research Center, UC Berkeley, USA (2024)
• Exploring the Intersection of Smart Contracts and Consumer Protection in Legal Frameworks, 18th International Association of Consumer Law Conference, Hamburg, Germany (2023)
• Presumption of Paternity and Artificial Insemination in Korea: Legal Implications, 18th World Conference of the International Society of Family Law, University of Antwerp, Belgium (2023)
• La Responsabilité Environnementale en Corée, Journées Internationales de l'Association Henri Capitant, University of Lodz, Poland (2023)
• Solidarité et Politiques Fiscales en Corée, Journées Internationales de l'Association Henri Capitant, Conseil d'État, Paris, France (2019)
• Smart Contracts and Consumer Protection, 17th International Association of Consumer Law Conference, Indiana University Bloomington, USA (2019)
• The Spouse's Legal Portion in Inheritance in Korea, 16th World Conference of the International Society of Family Law, Vrije Universiteit Amsterdam, Netherlands (2017)