노동법논총 [The Journal of Labor Law]

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    한국비교노동법학회 [The Korea Society of Comparative Labor Law]
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  • 등재여부
    KCI 등재
  • 주제분류
    사회과학 > 법학
  • 십진분류
    KDC 360 DDC 344.01
제40집 (13건)



미국의 노동조합 경비원조에 대한 태도와 시사점


한국비교노동법학회 노동법논총 제40집 2017.08 pp.1-23

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In the case of supporting the wage of full-time labor officers in the United States, in principle, the problem on whether or not it is regarded as unfair labor practice does not occur since the labor union pay it to them. Therefore, in the United States, the wage of full-time labor officers is the principle that a labor union has a burden by itself and it has the financial independence unlike Korea because it aims at the industrial and job classificational system and the system beyond corporations. Supporting the operating expenses to labor unions is prohibited as an unfair labor practice or unlawful act under the National Labor Relations Act since an employer or a labor union is the subject of action. In other words, the employer is regulated as an unfair labor practice or unlawful act against supporting operating expenses to labor unions while the labor union is regulated as an unfair labor practice regarding the act to exact the supporting of operating expenses to it In the United States, the Union Lost Time Payment is the system that union officers, union Stewards, or Union Committee Members take time off from their regular jobs to investigate a grievance, negotiate a contract, attend a safety meeting, or perform other work for the union. It is enforced systematically from the Office of Labor-Management Standards under the related provisions of the Labor-Management Reporting and Disclosure Act. The union officers receive the wages from their unions not employers which are deducted during work performance for the unions and the Labor-Management Reporting and Disclosure Act requires that the labor unions observe the fundamental standards of financial policy in order to improve their transparency and responsibility.



권리분쟁 사항과 단체교섭 사항에 대한 재검토


한국비교노동법학회 노동법논총 제40집 2017.08 pp.25-54

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The controversy over rights dispute and interests dispute has lasted for a long time. The recognition that rights dispute is not subject to collective bargaining and strike is widely accepted. However, it is incorrect to judge that it is not included in the object of collective bargaining and strike just because of the matter of rights dispute. Such an interpretation does not match the provision of Article 81-3 of The Trade Union and Labor Relations Adjustment Act(TULRAA) of Korea. Article 81-3 of TULRAA provided that the purpose of collective bargaining is “agreement of collective bargaining agreement and other collective bargaining”. Article 81-3 3 of TULRAA clearly show that the right to collective bargaining does not mean that it should be exercised only for the purpose of concluding collective agreement. The most essential purpose of collective bargaining is the determination of union members’ working conditions through the conclusion of collective agreements and the formation of collective autonomy. However, it is also an important objective of collective bargaining to resolve various problems in the process of interpretation and applying collective agreement. As a result, the tension in the process of collective bargaining is relaxed, while on the other hand the concentration of the collective bargaining itself is enhanced, and it is possible to concluded the collective bargaining rather early. The issue other than the purpose of concluding collective agreements can be negotiated on a continuous basis during the valid period of collective bargaining agreement. This will improve the negotiation skills of each party and problem solving skills of autonomy and furthermore it will be a decisive opportunity to secure sustainable stability of labor relations. This is because the basic requirement of the TULRAA is that Labor unions and management voluntarily solve the problems without relying on public institutions. This will be a catalyst to realize the principle of collective autonomy at a higher level with Korean labor-management relations.mean that it should be exercised only for the purpose of concluding collective agreement. The most essential purpose of collective bargaining is the determination of union members’ working conditions through the conclusion of collective agreements and the formation of collective autonomy. However, it is also an important objective of collective bargaining to resolve various problems in the process of interpretation and applying collective agreement.



전자수리서비스 업종에서의 불법파견 관련 하급심 판례 재검토 — 서울중앙지법 2017. 1. 12 선고, 2013가합53613 판결을 중심으로 —


한국비교노동법학회 노동법논총 제40집 2017.08 pp.55-77

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A worker who is required to comply with another person’s instructions regarding when, where, and how to perform the work is ordinarily an employee. Training a worker indicates that the company wants the services performed in a particular method or manner, which also indicates control. Integration of the worker’s services into the company’s core business operations generally shows that the worker is subject to direction and control. Supervising and Paying Assistants. However, a lack of control is indicated when the worker is able to hire his or her own assistants and pay them from the worker’s own funds. If the worker works certain hours set by the company, employment status is indicated. If the company does not control the hours of the worker, independent contractor status is indicated. If a worker must perform services in the order or sequence as determined by the company, the worker is generally subject to an employer’s control. However, if the worker chooses his or her own method for completing a job, a lack of control exists. If the company ordinarily pays the worker’s business and traveling expenses, the worker is ordinarily an employee. If the company furnishes significant tools, materials, and other equipment, an employment relationship is indicated. If the worker does not invest in his or her own facilities, control is indicated because the worker depends on the company for such facilities. A worker who cannot realize a profit beyond an ordinary salary or suffer a loss is generally considered to be an employee.



철강산업에서의 전산(MES)시스템을 통한 작업수행과 원청(도급업체)의 지시권 — 대상판결: 광주고등법원 2016. 8. 17. 선고 2013나1128 판결을 중심으로 —


한국비교노동법학회 노동법논총 제40집 2017.08 pp.79-111

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This paper analyzes the criterion objectively that encloses the distinction between a contract for work and a temporary agency contract. Afterwards, it studies the normative meaning of subject case that ruled the main grounds for an argument as a temporary agency contract, which are the relevance of facts not to be handled from the traditional courts under which the case interpreted the work performance by MES (Manufacturing Execution System) system as a significant command and order, regarded as an element of a temporary agency contract in the concrete decision and considered the work of subcontractor composing a part of the process in the case of continuous process as an illegal temporary agency contract due to the joint work with contractor's employees although the case accepts the general theory of the Supreme Court. In other words, this paper organizes the relevance of facts and ruling contents of the subject case after which it examines the attitude of the case regarding each normative issue, especially the work performance through the MES system and the right of instruction of the contractor. The MES system as adopted generally from the modern manufacturing industry does not have the main purpose to command and order subcontractor's employees, but has the main purpose to deliver the information in order to manage the products effectively. Therefore, recognizing the work performance by MES as a significant command and order, regarded as an element of a temporary agency contract is the interpretation resulting from understanding the MES system wrongfully. Again for emphasis, the MES system has the main purpose to record and manage all of the information needed by ordering a temporary agency work, inspecting a completed work, sharing working information, and proceeding the work effectively so that it is not seen as the command and order under the Act on the Protection, etc. of the Temporary Agency Workers. Recently, when considered as the reality managing the products through the MES system mainly in the big manufacturing industry, if the court stands the attitude of the subject case without considering the characteristics of a large industry, as a matter of fact, the usage of a temporary agency work in the manufacturing industry in Korea will be prohibited and disappeared. In this regard, the judgment in the first trial, 「That the defendant ordered the instruction of crain work to the plaintiffs through the computation apparatus is seen as the reasonable contents of the work on characteristic assigned to subcontractors in this case so that the defendant is not be seen to exercise the right of direction and supervision at work」 is to understand the characteristics of the steel industry based on manufacturing fairly.



도급과 파견의 구별에 관한 최근 판결의 동향과 쟁점 — 대상판결: 서울고등법원 2017.2.10. 선고 2014나49625 등(병합) —


한국비교노동법학회 노동법논총 제40집 2017.08 pp.113-148

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The court of this case denied the labor of subcontract and acknowledged the illegal dispatched labor to the indirect processes in the motor industry. irrespective of the use of word: subcontract. If there is the order or direction of user-employer to the workers, the labor belongs to the dispatched labor from viewpoint of employee dispatching or the Protection of Dispatched-Employee Act(hereafter the ‘PDEA’). So, user-employer has the duty to hire the dispatched workers. If user-employer doesn’t hire them, they have the right to ask for the verdict in substitution for the user-employer expression of will. So that verdict is found in the court, an employment relation between user-employer and dispatched workers is established. Two problems is proposed on this case: First, for it is difficult to distinguish the order or direction of user-employer’s from that of the contractor, the problem with contract for dispatched labor or contract for any construction work. If the company that dispatchs the workers independently exists and user-employer don’t directly order the workers but contractor. the legal relation between user-employer and workers is that of subcontract. That is to avoid the judgement based on the element of dependent labor relation. Second, PDEA has the clause that user-employer should directly hire the dispatched workers in case of illegal dispatched labor. the court made an interpretation of this clause as concluding employment contract. I don’t agree court’s understanding of this clause. This clause is the meaning that user-employer has just obligation to hire the dispatched worker, because the administrative fine for negligence is imposed on him in case of the user- employer’s violation of the clause.



농업인 안전재해예방에 관한 입법의 비교법적 검토


한국비교노동법학회 노동법논총 제40집 2017.08 pp.149-177

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Farmer's accident rate is higher than that of general employee. In korean agriculture are most of farmers small self-employed farmers. They are not employee. Therefore, the industrial accident law and the occupation safety and health acts are not applied to this farmers. The Act on the Safety Insurance of the Farmers and Fishermen and the Prevention of Safety Accidents is applied from January 7, 2016. But the preventionrules of this law are insufficiency. Therefore, it is necessary to make suggestions and make legislative proposals in Korea through comparative legal studies on the prevention of safety accidents for small self-employed farmers. In this article, we first examined the legislation on the prevention of safety accidents of farmers in Germany. Above all, Germany is organizing self-employed farms as industrial accident insurance, and considering farms as workplaces, farmers as farm owners. To this farmers as the employers in the industrial accident law and the occupation safety and health acts are imposed preventive obligations on themselves, family members and other assistants. In particular, German Social Legislation(SGB) imposes a preventive obligation on a single farmer who is working alone. In Korea, where most of the farmers are small self-employed farmers, it is necessary to introduce the concept of farmers as a ‘Unternehmer’ and farms as ‘Betrieb’ in Germany. In this article, we have proposed a legislation for the prevention of farmer's safety accidents.



산업안전보건법의 집행상의 문제점 및 개선방안에 관한 연구


한국비교노동법학회 노동법논총 제40집 2017.08 pp.179-220

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In order to advance industrial safety and health, it is important to advance the contents of the Occupational Safety and Health Law, but apart from this, it is difficult to achieve the advanced future of occupational safety and health without solving the enforcement issues of the law. Even if the occupational safety and health law is legislated with good content, if the operational ability of the executive organization of the law is insufficient or its enforcement function does not work properly, the purpose of the will be diminished and its effectiveness will be greatly reduced. In view of the experiences of industrialized countries in the prevention of industrial accidents, considering the fact that it is impossible to discipline everything in the statute, it is necessary to supplement the voids and defects of the Occupational Safety and Health Law through its enforcement, The importance of the executive issue can not be overemphasized. In these advanced countries, we have been working for a long time to improve the quality level of law enforcement, ie, systematically thinking and approaching enforcement of the Occupational Safety and Health Law. In particular, the reason for emphasizing the expertise of the OSH administrative organization is that they are deeply aware of the importance of the enforcement of the Occupational Safety and Health Law. In order to advance the enforcement of the Occupational Safety and Health Law for the future under the consciousness of this problem, this article presents the improvement method of the law enforcement, and its main contents are as follows. First, many problems in the implementation of the Occupational Safety and Health Law are caused by the ‘poverty of philosophy’ about the law of the executing agency. Therefore, in order to normalize the enforcement of the Occupational Safety and Health Law, the issue of the law and the lack of understanding of legislative thought should be resolved. Second, the specialization of occupational safety and health administration must be solved not only for the contents of the Occupational Safety and Health Law, but also for advancing enforcement. Unless the occupational safety and health administration is specialized, the advanced future of occupational safety and health in Korea can not be promised. Thirdly, if the Occupational Safety and Health Law is implemented in a strictly formal manner, it is difficult to encourage the formal compliance of person responsible for compliance and lead to practical compliance. In order to enforce the effect of enforcement of the Occupational Safety and Health Law, it is indispensable to provide guidance and supervision that focuses on confirmation of actual implementation without departing from confirmation of formal implementation. Fourth, the enforcement of the Occupational Safety and Health Law should be done systematically, not segmentally. The Occupational Safety and Health Law should be enforced in a way that takes into account the whole context of the law, including taking into account the intent of the law. In other words, law enforcement should focus on not only the punishment after the accident, but also the cause of the accident and the measures to prevent the recurrence, and the law should be enforced to include the role of the subcontractor in addition to the contractor and other related fields other than the occupational safety and health field. Fifth. It is more important than strengthening the preventive guidance administration and strengthening the law enforcement infrastructure (infrastructure), rather than relying mainly on punishment, as a way to improve understanding and compliance with the Occupational Safety and Health Law of person responsible for compliance.



산업안전보건법에서 나타난 도급에 관한 쟁점


한국비교노동법학회 노동법논총 제40집 2017.08 pp.221-264

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From the viewpoint of contract relationship and occupational safety and health acts relationship, it is very difficult to define the limit of the scope of responsibility according to legal concept and type of contract. Especially from the viewpoint of contract theory of civil law, asking contents of invited contract, which correspond to autonomous meaning of the contract, to bear of responsibility can be controversial. In addition, It is necessary to judge whether it is appropriate to prohibit subcontracts, in a multi-layered structure such as a secondary, tertiary structure, caused by Individual contract. Forcing by limiting the unconditional contents of contract by law can cause continuous conflict with civil law and enforcing the law. However it is an important issue for worker's life and safety and health to make their responsible for safety and health from workplace of contractor that cause the danger. In this sense, it is reasonable to judge administration area of contractor from meaning of place that gives spatial meaning to the workplace to charge responsibility. And currently, scope of contract responsibility is defined only on the basis of limited space concept, which is the workplace, but if scope of workplace changes due to changes in various industrial environments such as the Fourth Industry, exterior contract also needs to be responsible for safety and health as a general responsibility. Particularly in case of workplace where the harmful substance is handled, a corporate responsibility is required through the prior safety and health management system on provision of information, etc.



인준투표제의 재발견


한국비교노동법학회 노동법논총 제40집 2017.08 pp.265-312

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The Ssangyong Engineering & Construction Case whereby it was ruled that the ratification voting for the general meeting was null and void not only violates the autonomy and democracy of the labor union that the law fundamentally protects, but also needs to be reviewed thoroughly starting even before the law was amended. Even if the current Article 29(1) of the Trade Union and Labor Adjustments Act authorizes the representative to make collective agreements, If we take into consideration the fact that legal principles for collective associations in the Constitution, the Civil Act, the Commercial Act strive for democratic values, that the Criminal Act does not expressly prohibit the ratification voting for the general meeting, and numerous other illustrations from other countries, it is unjust to conclude that the ratification voting for the general meeting is null and void. Nonetheless, any collective agreements in violation of the ratification voting of the general meeting or any other valid, internal procedures, shall be null and void in consideration of the importance of labor union democracy, the legal principles associated with representative actions that lack procedural legitimacy, the importance of procedural legitimacy for labor and company's relationship. Recently, a significant ruling was made on the subject of ratification voting for the general meeting. The Hankook Baljun case, although follows the earlier precedent, proposed a possibility to limit the representative's authority to make collective agreements in order to realize labor union democracy substantially. From the perspective of substantial labor union democracy, this case also provides for the turning point for creating a modern legal principle for the ratification voting of the general meeting, and a starting point at that as well. Under the Taxi Corporation Labor Union case, they reiterated the legal principles of the Hankook Baljun case, and as to any actions taken under by the quasi-representative who made collective agreements without being elected through a valid procedure, the case was clear that individual labor union member could not claim for damages for violating its fiduciary duty. But on a similar case, K Labor Union case, the court allows for individual labor union members could claim compensation against the labor union and the representative on the grounds of being denied their right to participate and laid the groundwork for civil relief for members of the labor union. However, even so the court ruled that the collective agreement already signed by the unlawful representative was still valid, this judgment is unjust in consideration of labor union democracy, violation of the autonomy and democracy of the labor union, procedural legitimacy and the importance of reviewing the procedure of the collective agreements, unsatisfactory civil relief with unrealistic compensation, the possibility of no legal benefit because of the joint and several legal principle, the low probability of enforcement on the labor union representative, etc. The acts of the quasi-representative who has been bought off can be very dangerous to both the labor union and its members. Although previous cases were unable to control the unjust actions of the quasi-representatives by stating that the ratification voting for general meeting was null and void, the more recent cases show a glimpse of the possibility of controlling these quasi-representatives by expressly recognizing the validity of procedural legitimacy. One can say that this is overcoming the old tradition and welcoming the rebirth of the ratification voting for general meeting in new meaning. Nevertheless, the legal benefits of the relief are not that great. Therefore, in order to prevent the company from trying to buy the representative, control the representative and protect labor union democracy, we need to be able to hold the representative accountable through compensation and criminal indictment. If such a change is not possible for now, than the compensation given to the members should be at least adjusted to meet the current standards.



기간제법 시행 이후 갱신기대권 법리에 관한 소고

노길준, 이승길

한국비교노동법학회 노동법논총 제40집 2017.08 pp.313-353

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(1) The renewal expectation right in the Short-term Employee Act was the legal principle established to prevent the employer’s abuse of using fixed-term employment and to protect employees in the repeatedly renewed employment contract. Even though it has been ten years since the Fixed-term Employee Act was implemented, it is a still controversy between the labor and management over whether the principle of renewal expectation rights could be used or not. Since there were some court rulings about renewal expectation rights in the regional and high courts, but there has been no Supreme Court ruling until recently. Even in the regional and high courts, such renewal expectation rights were not recognized continuously. The Supreme Court ruled on the case of “Working-Together Foundation” and recognized the renewal expectation right at the newly established short-term employment contract. This Supreme Court ruling could suggest a court ruling guide over whether the legal principle of renewal expectation right could be recognized or not. (2) After the Fixed-term Employee Act was implemented, whether the legal principle of renewal expectation rights could be recognized depends on whether in Article 4 of the Fixed-term Employee Act, the purpose of its enactment for restricting fixed-term employment could be interpreted narrowly as one to ‘prevent the abuse of using fixed-term employment contracts or widely as one to extend flexibility in employment. Also, there has been no such a Supreme Court ruling about the recognized case of renewal expectation rights so far. Now, we have some rulings in the regional and high courts as well as the Supreme Court about renewal expectation rights. In terms of reviewing the purpose of the Fixed-term Employee Act about the restriction of fixed-term employments, which was to prevent the abuse of repeating fixed-term employments and to guarantee the employee’s status, the Short-term Employee Act could not be used to prevent a justifiable expectation of automatic renewal, but also to extinguish expectation renewal rights already established and granted. After all, as the legal principle of renewal expectation rights has several limitations, Article 4 of the Fixed-term Employee Act should be supplemented with more legislative revisions.



韓ㆍ日 철강산업 사내하도급의 특징에 대한 비교법적 검토


한국비교노동법학회 노동법논총 제40집 2017.08 pp.355-394

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‘Subcontract work’ has a long history and has become settled as one of the types of employment in Japan. While ‘subcontract work’ in civil law fundamentally aims at ‘completion of duty’, it has been diversified into simple labor by diversifying employment types. By reflecting these situations, the Worker Dispatching Act was established in 1985. However, further issues such as classifying between subcontract and dispatched work have emerged. To cope with newly emerging problems, the Japanese government (formerly the Ministry of Labor) established ‘criteria for classifying dispatched work and subcontract work’ (Notification no. 37). According to this notification, when an employer is not able to keep ‘independence in personnel management’ and ‘independence in management’ as a business owner, the work can be regarded as ‘dispatched work’ (in other words, disguised subcontract work). However, the criteria for this notification were too severe, and much criticism of it arose. In the Japanese manufacturing industry, there are a lot of cases where workers from original contract and subcontract companies work together at the same places, making it very difficult to meet all the requirements presented by the notification for this kind of in-house subcontracting work. Hence, in 2009, the Japanese Ministry of Health, Labor and Welfare presented ‘Questions and Answers’ regarding Notification no. 37, and lessened the criteria for classifying dispatching and subcontracting work. The main contents of ‘Questions and Answers’ offer specifications and guidance on technique through daily conversations between workers from original contract companies and subcontract companies, the responsibility of the field manager, the mix of workers from original contract companies and subcontract companies, the use of facilities in the company, the use of installation/equipment, and so on. In particular, the ‘Questions and Answers’ for that notification were enacted to solve the problems of disguised subcontract work that have been occurring in the assembly-line system, where the original company’s workers and the subcontract company’s workers are mixed together when working in the automotive and shipbuilding industries. Therefore, the criteria for classifying dispatching work and subcontracting work in ‘Questions and Answers’ have been mitigated compared to the criteria in the original Notification no. 37. When considering similar situations in Korea, similar problems of in-house subcontracting work have been emerging. However, as the Korean court presented in the case of POSCO, the tendency to deny subcontracting work in the assembly-line system is strong. This judgement is based on the interpretation of civil law; however, it can be criticized that the judgement did not fully reflect the actual labor situation in which employment types have been undergoing drastic changes due to industry restructuring. In that sense, this research can provide implications to resolve problems related to in-house subcontracting work in Korea.



인턴십의 양극화와 정부의 인턴 보호 지침


한국비교노동법학회 노동법논총 제40집 2017.08 pp.395-444

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In recent years, internships have become more pervasive than ever before in Korea. This is largely attributable to the recession, which made internships a necessity for most students and graduates. Today, students and graduates apply for, and willingly accept, internships, hoping to obtain real-world experiences. Even if the work is unpaid, it is undertaken by the applicants with the presumption that the opportunity will serve as a stepping-stone to their prospective careers. Thus, for many young Koreans, internships are a matter of economic survival, as they provide the work experience that is necessary to be competitive in today's labor market. However, internships are not entirely a product of economic necessity. Aside from increasing one's marketability, internships provide many intangible benefits that are important to the applicant. Internships allow young graduates to explore an industry before taking on the permanent job. Other intangible benefits include learning basic workplace skills like work ethic, leadership, and responsibility. Not surprisingly, some employers have taken advantage of the rising demand for unpaid internships. Just as recent graduates are seeking out internships more than ever before, employers are happy to make room for the free labor. The more graduates are eager to work for free, the more employers are eager to let them. Notably absent from the unpaid internship debate, however, is any distinction between the types of internships at issue. It should not be used the same criteria for an unpaid intern and a paid intern in large company. The Labor Standard Act(LSA) does not define interns. Rather, the Act’s protections apply to all employees. Therefore, the threshold question in every unpaid intern case is whether the intern is an employee under the LSA. Unfortunately, the LSA leaves the question unanswered by providing a circular definition of employee: “any individual who provides works for the wage”. Therefore, courts have to search for guidance regarding unpaid internships under the LSA. But the Supreme Court has not yet to address the legality of the unpaid internship clearly. In that respect Trainee’s Manual of the Ministry of Education and Work Experience Guideline of the Ministry of Employment and Labor, which prescribe the process of the training, protection of the trainee, and the guidance for the distinction of interns and employee, can be regarded as a meaningful step to the establishment of the legal status of interns. The government, thus, plays a vital role in updating the law and pushing reform to ensure that those who engage in substantive work are fairly compensated, that employers do not have an incentive to substitute paid workers with unpaid interns, and that all workers, including unpaid interns, have equal protection from harassment and discrimination. Educational institutions should also participate in such reform by ensuring internship opportunities for their students. Nevertheless it should not be overlooked that ambiguous statutory language, unclear legal precedent, and non-binding government’s interpretation could result in courts’ applying inconsistent standards to determine the employment status of interns. A bright line rule for determining when an intern qualifies as an employee under the LSA is critical to settle the uncertainty in this area of the law. At any rate more courts will address the legality of the unpaid internship, and will undoubtedly formulate new tests and build upon the old.




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