• Journal of Arbitration Studies
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• v.23 no.2
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• pp.115-139
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• 2013

In the area of legal studies, negotiation can be taught as a profession skill in legal matters such as making negotiating a contract or resolving disputes including alternative dispute resolution. Given recent changes in the legal services market such as the opening of the market, expected higher competition in the legal profession and a high expectation for lawyers' role in society, negotiation skills are an important element of legal expertise that should be developed in law schools. The main purpose of negotiation training should be to make law school students aware of their role as lawyers to help their clients resolve their problems using their legal expertise and negotiation skills in an appropriate and effective way.

• Journal of Arbitration Studies
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• v.18 no.2
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• pp.129-148
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• 2008

국제거래에서 분쟁이 소송으로 발전될 경우 당해 사안에 적용될 준거법의 결정문제와 어느 나라의 법원에서 재판을 받을 것인가에 대한 국제재판관할권의 문제가 빈번히 대두되고 있다. 소송을 제기하는 당사자들로서는 자신에게 유리한 재판결과를 얻을 수 있는 법이 준거법으로 선택될 가능성이 있는 국가의 법원에 소송을 제기하는 소위 '포럼 쇼핑 (forum shopping)' 전략을 세우기도 한다. 이러한 포럼 쇼핑에 대응하기 위해 영미 판례법인 common law에서는 오래 전부터 forum non conveniens를 확립하였다. 본 논문에서는 forum non conveniens를 심리한 미국 대법원의 판단기준을 살펴보면 먼저, 적절한 대체관할지의 존재여부이며, 둘째 사적이익 부분에서 자국민이 현저하기 불리한 위치에 처하는지를 확인하고, 셋째 공적이익 부분에서 미국의 이익이 심각하게 침해되지는 않는지를 검토하여 판단하게 된다. 이러한 법리적 판단근거를 제시하고 이에 대한 적용사례를 분석하여 향후 무역거래를 포함한 일련의 국제계약에 있어 분쟁시 국내기업들이 미국법정에 재판받지 않고 국내법원으로 재판관할지를 선택할 수 있는 전략을 제시함으로써 패소가능성 등의 계약위험을 줄일 수 있을 것으로 판단된다.

• The Korean Society of Law and Medicine
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• v.10 no.2
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• pp.407-426
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• 2009

Kennzeichnend f$\ddot{u}$r die $\ddot{a}$rztlichen T$\ddot{a}$tigkeiten, wenn Konflikte in medikament$\ddot{o}$sen Behandlungen auftreten, passiert es oft, dass es wegen unn$\ddot{o}$tigen Missverst$\ddot{a}$ndnissen oder Mangel an Verst$\ddot{a}$ndnis zwischen Arzt und Patient als extremes Ph$\ddot{a}$nomen zum impulsiven Strafprozess oder physischer Gewalt von Seite des Patienten kommt. In diesem Falle verteidigt sich der Arzt mit Schutzbehandlung und Behandlungsablehnung um die Folgen der $\ddot{a}$rztlichen Behandlung zu entweichen. Es ist dadurch auf beiden Seiten, Arzt und Patient, eine schwierige Sache. Denn der Versuch solche F$\ddot{a}$lle in Konflikten durch Zivilklage zu kl$\ddot{a}$ren, ist die Beweisf$\ddot{u}$hrung des Patienten und die dadurch in Lange gezogene Anklage meist durch die $\ddot{a}$rztliche Fachlichkeit und Behutsamkeit nicht wirklich m$\ddot{o}$glich. Infolgedessen ist es n$\ddot{o}$tig alternative Streitbeilegungsmethoden wie Schlichtung, Regelung oder Vermittelung einzuf$\ddot{u}$hren, anstatt von Gerichtsverfahren. Konflikte in einer $\ddot{a}$rztlichen Behandlung sind f$\ddot{u}$r den Patienten und auch f$\ddot{u}$r den Arzt eine Plage, denn physischer und geistiger Schaden wird dadurch verursacht. So ist eine schnelle Einf$\ddot{u}$hrung vertrauensw$\ddot{u}$rdiger Methoden in diesem Bereich notwendiger als in anderen. In diesem Aufsatz wird eine m$\ddot{o}$gliche Einf$\ddot{u}$hrung von einer passenden alternativen Beilegung von Rechtsstreitigkeiten in S$\ddot{u}$dkorea und ein Plan zur Aktivierung von dieser vorgef$\ddot{u}$hrt. Derzeitig wird in Deutschland als Alternative f$\ddot{u}$r Anklagen in den jeweiligen Bundesl$\ddot{a}$ndern die von den $\ddot{A}$rztevereinen erstellten und beaufsichtigten Schlichtungsstellen und Gutachterkommission in Rat genommen. Schlie$\ss$lich sollten wir aufgrund der vorliegenden Fakten und die Vor-und Nachteile dieser Schlichtungsmethoden auffassen und als Vorbild unserer anwenden und versuchen diese in Aktion zu bringen.

• Journal of Arbitration Studies
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• v.26 no.4
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• pp.129-149
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• 2016

Medical dispute means the dispute between the hospital and the patient due to a medical accident. In general, medical accidents must be in accordance with the terms that are used in the medical dispute adjustment method stated in Article 2 (definition). In relation to this, there is a need to discuss an efficient operation scheme for Alternative Dispute Resolution (ADR) in medical disputes. In addition, it is necessary to look at issues of civil liability and criminal liability. In particular, in the consumer dispute arbitration committee, there is a case to make a "decision not to adjust" in aggressive intervention in the process of conflict resolution. The medical staff, on the basis of its "decision," can use this as a proven material for civil and criminal cases. This is rather upon the determination of the consumer council as a typical side effect to defend the user's perspective. This is the "decision" as was expressed from an order, "not adjusted." It is also determined to be easy and clearly timely. In the medical litigation, it is requesting the burden of proof of a patient's cause-and-effect relationship with the doctors committing negligence and medical malpractice. This seems to require the promotion of legislation in the direction to reduce future cases. It is determined that the burden of proof of medical accidents must be improved. The institution receiving the medical accident should prevent a closure report. Further, it is necessary to limit the transition to a franchise point. In this paper, we understand the problems of the current medical dispute resolution system, trying to establish a medical dispute resolution system desirable through an efficient alternative. In addition, it wants help in the protection and realization in medical consumers' and patients' rights. The relevant authorities will take advantage of these measures. After all, this could contribute to the system for a smooth resolution of a medical dispute.

• Journal of Arbitration Studies
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• v.29 no.1
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• pp.3-29
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• 2019

A franchise business is a business in which the owners, or "franchisors," sell the rights to their business logo, name, and model to third party retail outlets, owned by independent, third party operators, called "franchisees." There are a number of features in franchising or terms in franchise agreements that may lead to disputes between franchisors and franchisees. These disputes may arise because of underlying risks in the franchise relationship, franchise agreement, or conduct of the parties. In this case, ADR is an effective way to resolve disputes in a quicker and often less costly way than having to go to court. If an agreement cannot be reached through mediation, then arbitration becomes the next step to resolving the differences. Whereas mediation is non-binding and focused on facilitating the parties to find a resolution that is acceptable to both, arbitration is binding and may result in a decision that is not acceptable to one of the parties. These situations can be resolved through experienced arbitration as arbitration allows franchisees to settle matters promptly and outside of the public eye. In addition, franchise dispute arbitration is usually less costly than going to traditional court. Considering all of these, reaching an agreement will also have typical clauses that address the issue of dispute resolution. It is again a more efficient process than going through the legal process and courts and is often less costly. By going through arbitration, the parties agree to give up their rights to pursue the dispute in the courts. However, there is a problem that the arbitration prior to the agreement and under the terms would be contrary to the restriction of jurisdiction under the "ACT ON THE REGULATION OF TERMS AND CONDITIONS" in Korea.

• Korea Trade Review
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• v.43 no.5
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• pp.139-158
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• 2018

As trade volume increases and the business environment becomes more complex and competitive, international trade disputes are also increasing and becoming more complex. Parties need to become more aware of alternatives to costly and time consuming arbitration and litigation. The ADR (Alternative Dispute Resolution) can encompass all dispute resolution processed and can act as a substitute for traditional litigation. Mediation, a type of ADR, offers an amicable dispute settlement mechanism between concerned parties through a natural mediator. There are several strong points of mediation compared with litigation or arbitration. First of all, mediation can take place without having to complete time-consuming and expensive discovery processes associated with litigation. In addition, since mediation is considered a private process, the dispute can remain out of the public eye. It can be embarrassing and disrupt business when customer or suppliers learn that a company is involved in litigation. Lastly, mediation is less adversarial than litigation or arbitration, so the parties often can salvage their relationships. Often the parties to mediation find themselves continuing to conduct business. In spite of such benefits of mediation, it is less used in Korea and therefore, this article aims to promote the mediation system in international trade disputes. However, this paper has limitation, for example, why ADR is not used well in Korea and need to suggest how ADR can work best in international trade disputes.

• 정보보호뉴스
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• s.137
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• pp.42-45
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• 2009

지난해 옥션, SK브로드밴드, GS칼텍스 등의 고객정보 유출사건이 반복적으로 발생하면서 집단소송제 제기 등 개인정보보호의 문제는 사회적인 분쟁으로 확산되고 있는 실정이다. 이런 상황에서 정부의 안일한 대응과 체계적이지 못한 시스템 미비 등이 문제의 근원으로 지적되고 있다. 하지만 보다 근본적인 원인은 바로 턱없이 부족한 개인정보보호의 예산과 실효성 없는 대책에 있다. 따라서 일련의 사건들이 재발되지 않고 개인정보 유출이라는 불법행위가 근절되기 위해서는 개인정보보호 예산 편성 강화와 인터넷상 주민번호를 대체할 식별번호(i-PIN)의 도입을 통한 제도적, 기술적 보완을 강구해야 한다. 특히 정보통신 시설 및 개인정보 보호에 관한 법제를 정비하는 것이 시급하다.

• Journal of Arbitration Studies
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• v.30 no.4
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• pp.71-94
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• 2020

When a dispute or conflict occurs, standard methods for resolving them include resolution by trial or resolutions outside of courts. An alternative dispute resolution method called ADR that aims at remedying disputes instead of filing lawsuits is used commonly throughout the world, including the US and China. ADR, which is a remedy method outside of courts, includes negotiation, arbitration, or mediation between the concerned parties, and the arbitration system has several advantages. The Lemon Law is a consumer protection law of the United States that was enacted in 1975. This law prescribes that when specified quality standards are not met repeatedly due to defects in vehicles or electronic products, the manufacturer must provide exchanges or refunds to consumers. Korea also enacted a newly revised automobile management act, the Korea "Lemon Law," on January 1, 2019, which allows consumers to receive exchanges or refunds from the manufacturer if the same malfunction repeatedly occurs after purchasing a new automobile. There have recently been many cases of large fires occurring while driving import vehicles, causing huge public rage; therefore, interest is being focused on the revised automobile management act. Part 5-2 of the automobile management act was newly added to implement automobile exchange or refund arbitration systems. It is desirable to utilize the arbitration system to smoothly resolve automobile-related disputes that have recently increased significantly, and it is thus being used frequently for practical purposes.

• Journal of Environmental Impact Assessment
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• v.26 no.6
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• pp.495-507
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• 2017

The regional environmental conflicts of 'Mungjangdae Hot Spring Development Project' have still now continued from 1985. As a case study, the limitation of environmental litigation and the feasibility of EIA as Alternative Dispute Resolutions (ADR) for solving the conflict of 'Mungjangdae Hot Spring Development Project' was analysed. In order to mitigate environmental and social conflicts, the scope and time of public participation in EIA process which is democratic procedure based on scientific prediction of environmental impact need to be diversified to the extent 'Aarhus Convention', and the burden of environmental litigation need to be alleviated by the 'EIA consultation' from environmental authorities. In decision-making process related with large scale development plan and project which have enormous impact, the effectiveness of the EIA as ADR can be enhanced by applying citizen involvement in environmental governance and the various aspects of sustainability. The effective utilization of EIA public participation such as public hearing to pursue social equity can be a ESSD scheme for the implementation of SDG at regional dimension in Korea.

• Journal of Arbitration Studies
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• v.11 no.1
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• pp.145-179
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• 2001

The Federal Maritime Commission is issuing new regulations implementing the Administrative dispute Resolution Act. The new regulations expand the Commission's Alternative dispute resolution(“ADR”) services, addressing guidelines and procedures for arbitration and providing for mediation and other ADR services. This rule replaces current subpart U-(Conciliation Service), with a new subpart U-(Alternative Dispute Resolution), that contains a new Commission ADR policy and provisions for various means of ADR. The rule also revises certain other regulations to conform to the Commission's new ADR policy. So, this paper object was to study on the FMC's ADR in U.S. with the emphasis on the final rule analysis.