• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.73
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• pp.65-90
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• 2017

The rule of warranty in English insurance law was established in the second part of the $18^{th}$ century by Lord Mansfield, who laid the foundations of the modern English law of insurance contract and developed very different rule of insurance law, especially in the field of warranty. At the time of Lord Mansfield, warranty, that is, the promise given by the assured, played an important role for the insurer to assess the scope of the risk. Legal environments, however, have changed since the age of Lord Mansfield. English and Scottish Commissions proposed very dramatic reform of law in the field of warranty law to reflect the changes of legal environment through the Insurance Act 2016. This article intends to consider the legal implications through the comparative analysis between the new regime of warranty in the Insurance Act 2015 and MIA 1906. The major changes in the Insurance Act 2015 are summarized as following. First, Basis of the contract clauses in non-consumer insurance contracts should be of no effect and representations should not be capable of being converted into warranties by means of a policy term or statement on the proposal form. This requirement should not be capable of being avoided by the use of a contract term and the arrangement of contracting out by parties should be of no effect. Secondly, The existing remedy for breach of warranty, that is, automatic discharge of the insurer's liability, should be removed. Instead, the insurer's libility should be suspended from the point of breach of warranty and reattach if and when a breach of warranty has been remedies. Thirdly, A breach of warranty should genally be regarded as remedied where the insured ceases to be in breach of it. In the other hand, for time-specific warranties which apply at or by an ascertainable time, a breach should be regarded as remedies, if the risk to which the warranty relates later, becomes essentially the same as that originally contemplated by the parties. Fourthly, where a term of an insurance contract relates to a particular kind of loss, or loss at a particular location/time, the breach of that term should only give the remedy in relation to loss of that particular kind of loss, or at a particular location/time. Finally, whether a term of an insurance contrat relates to loss of a particular kind of at a particular location/time should be determined objectively, based on whether compliance with that ther would tend to reduce the risk of the occurrence of that category of loss.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.49
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• pp.257-281
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• 2011

The duty of utmost good faith is found in sections 17-20 of MIA 1906. Critics of the current legal regime on the pre-contractual duty from the viewpoint of the assured, have been concentrated on two points in particular. First, the scope of the duty is so wide that it imposes too high burden on the assured. The second criticism is directed at the remedy, prescribed by the MIA 1906, s.17, against breach of the duty. This article intends to analyse the legal implications of proposals in CP 2007 for reforming pre-contractual duty of utmost good faith of business assured in English insurance contracts law and the problems of proposals. The Law Commissions are proposing four fundamental changes to meet the long-standing criticism and the results of analysis are as following. First, the Law Commissions are proposing a change in the test of constructive knowledge in relation to the duty of disclosure so that a business assured will be obliged to disclose facts which he knows or a reasonable ought to know in the circumstances. Secondly, deviating from the current legal position, the Law Commissions are proposing that if a business assured has made a misrepresentation, but the assured honestly and reasonably believe what it said to be true, the insurer should not have any remedy due to the misrepresentation. The proposal is designed to protect the reasonable expectations of business assured at the pre-contractual stage. Thirdly, the Law Commissions are proposing to change the test for materiality by replacing the "prudent insurer" test by a "reasonable assured" test. The proposed test would focus on the question of what a reasonable assured in the circumstances would think what is relevant to the judgment of the insurer. Finally, the Law Commissions are proposing flexible remedies in case of the breach of the duty. The Law Commissions are proposing no remedy when an assured is acting honestly and reasonably, while avoidance in case of dishonesty. On the other hand, The Law Commissions seem to have an intention to introduce a compensatory remedy in case of negligent breach of the duty.

• International Commerce and Information Review
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• v.1 no.1
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• pp.131-156
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• 1999

최근의 통상환경중 "Logistics" 혁명을 통한 컨테이너 운송의 신속화, 인터넷혁명을 통한 전자상거래 활성화는 EDI, EC등을 통해 "Paperless trade"가 실현을 앞당기고 있다. 본 논고는 이러한 물류혁명과 인터넷 정보기술의 발달로 대두되는 문제중 기존의 종이서류로서의 운송서류를 전자식 운송서류로 대체하는데 따른 문제점과 이의 활성화 방안에 대해서 살펴보고자 한다. 인터넷 전자거래가 활성화되어지면 기존의 종이서류들은 전자메시지로 대체될 것으로 여겨진다. 이에 따라 전자계약서, 전자송장, 전자보험증권, 전자선하증권 등이 출현할 것이지만 이중 무엇보다도 전자식 운송서류중 유통성 운송서류의 전자화는 그간 전자화의 핵심부문으로 여겨서 상당한 중요성을 두어왔다. 현재 이용되는 유통성 운송서류는 그간 선하증권의 지연도착문제와 이에 따른 추가 경비의 소요, 또한 선하증권 발급에 따른 부대경비의 과다소비, 종이서류로서의 선하증권의 위조에 따른 사기문제 등에 제기되어 졌고 이에 따라 선취화물보상장 등의 현실적 대안이 제시되었지만 이 또한 여러 문제점을 야기시켜왔다. 전자식 운송서류는 이러한 문제점을 다소 해소할 수 있는 방안으로 알려져 왔다. 전자거래가 활성활 될 미래에는 운송서류의 전자화는 필연적으로 대두되게 될 것이고, 이러한 전자화에 있어 해상운송장의 사용은 바람직한 모델로 여겨지고 있다. 그렇지만 전매가 잦은 산업에 있어 해상운송장은 자체의 유통성의 미비로 인해 그 사용에 문제점이 있고, 실제 상관행에서 많은 이점을 가진 선하증권의 발행 욕구를 충족시켜 줄 수 있어야 할 것이다. 본 논고에서는 전자식 운송서류의 활성화 방안으로 첫째, 전자식 운송서류에 관한 법률정비가 필요할 것으로 여겨지며 둘째, 유통성 전자식 운송서류에 있어 관리기관의 안정성이 확보되어야 할 것으로 여겨지며 셋째, UCP에서 전자식 운송서류에 관한 조항이 삽입되어져야 할것으로 여겨지며 넷째, 여러 측면에서 우위성을 지닌 전자무역거래의 활성화는 점차적으로 운송서류의 전자화를 활성화시키는데 반드시 필요한 명제로 등장할 것으로 여겨진다.

• International Area Studies Review
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• v.13 no.3
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• pp.781-799
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• 2009

Korea and China should come up with a mutually beneficial FTA proposal at an early date and thus lead the way towards the FTA. An FTA with China is a key issue of economic cooperation in order to confront soaring Chinese competitiveness in international markets. The purpose of this research paper is to analyze the overall Busan regional economy impacts of the Korea-China FTA. We analyzed the quantitative effects of an FTA by using microeconomic concept. The Korea-China FTA will have positive effects on the overall industry in Busan. Therefore, Busan regional industries exports and imports are expected to grow. Busan is worried the deal would pave the way for imports of cheap Chinese agricultural products, hurting the nation's already fragile agricultural sector. In contrast, Busan's manufacturing sector is expected to see its surplus rise. In sum, we think the FTA will bring benefit to the whole industry in Busan Regional economy because it accelerates development of the industries by trade and investment along with comparative advantage.

• Journal of the Korean Society for Aviation and Aeronautics
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• v.17 no.4
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• pp.94-106
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• 2009

오늘날 항공기사고는 우리나라뿐만 아니라 세계도처에서 때때로 발생되고 있다. 특히 항공기에 대한 갑작스러운 테로 공격 또는 일반 항공사고에 기인된 항공기의 추락 및 물건의 낙하로 인하여 지상에 있는 제3자에게 손해를 입히는 경우가 간혹 발생되고 있다. 이와 같은 항공사건에 있어 가해자(항공기 운항자)는 피해자(지상 제3자 등)에 대하여 불법행위책임을 부담하게 되는데 이러한 사건들을 해결하기 위하여 1952년의 개정로마조약과 1978년의 몬트리올의정서 등이 있음으로 본 논문에서는 이들 조약의 성립경위 및 주요내용과 개정이유 등을 간략하게 설명하였다. 특히 2001년 9월 11일에 뉴욕에서 발생된 이른바 항공기 납치에 의한 동시다발 테러 사건의 피해는 4대의 항공기에 탑승한 승객 및 승무원 266명이 전원 사망하였고 워싱턴에 있는 미국 방성청사에서의 사망 및 실종이 125명, 세계무역센터에서의 사망 및 실종이 약5,000여명에 달하는 막대한 피해가 발생되었다. 9/11참사사건은 지상에 있는 제3자의 인적 및 물적 손해가 거액에 달하였음으로 이에 따라 영국의 로이드보험 등 세계보험업계가 크게 손실을 입게 되어 항공보험을 기피하는 현상이 생겨나 법적인 문제점이 제기되었다. 국제민간항공기구(ICAO)에서는 9/11사태 이후 이와 같은 테로 사건의 법적대응책과 자구책을 마련하기 위하여 약 8년간의 심의 끝에 항공기에 대한 테로 공격(불법방해 행위)과 1952년 개정로마조약의 현대화(일반위험) 등 새로운 2개 조약을 2009년 5월 2일에 성립시켜 공표하였다. 상기 새로운 2개의 조약 중 첫째 조약은 항공기의 불법방해 행위에 기인된 제3자에 대한 손해 배상에 관한 조약(Convention on Compensation for Damage to Third Parties, Resulting from Acts of Unlawful Interference Involving Aircraft: 일명 불법방해조약이라고 호칭함: Unlawful Interference Convention)이고 둘째 조약은 항공기에 기인된 제3자에 대한 손해배상에 관한조약 (Convention on Compensation for Damage Caused by Aircraft to Third Parties: 일명 일반위험 조약이라고 호칭함: General Risk Convention) 이다. 본 논문에서는 이 새로운 2개 조약에 대한 ICAO가 주관한 성립경위와 주요 내용 및 필자의 논평을 제시하였고 이들 조약에 대하여 한국의 조속한 비준을 촉구하는 바이다.

• International Commerce and Information Review
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• v.8 no.3
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• pp.99-119
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• 2006

The recent trend in the payment terms of international trade shows the gradual shift toward more diversified payment methods (from L/C to not L/C) in order to cope with the increasingly dynamic international transactions in a more flexible manner. The reasons behind this recent shift are as follows : first, the global trade market is breaking away from the traditional L/C methods based on letters of credit toward a not L/C methods. nother reason for the changing trade payment methods is the increasing volume of intra transactions between headquarters and their foreign subsidiaries based on collection payment methods. Having mentioned the above problems that impede the Korean export insurance system, some suggestions can be put forward through a comparative analysis with foreign export insurance system. First, inducing private investments is one way of strengthening financial health of the KEIC. The KEIC also needs to diversify its insurance coverage adapting to the changing international trade environments.

• International Commerce and Information Review
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• v.9 no.1
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• pp.169-186
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• 2007

The purpose of this study analyzes laying stress on Japan example that background of electronic issue of international meritime insurance policy is what, and is marched in some degree present. and this study presented what hereafter subject of electronic insurance plice is. The this paper is to study the current situations of trade financial EDI in Japan and problems in application of marine insurance contracts. The subject of electronic marine policy issue is as following in trade financing EDI. (1) application of electronic document in claim demand. (2) standardization of various documents and insurance plice data. (3) insurance compensation document that become Jeonjahwa in insurance accident settlement. (4) maritime Insurance policy agreement's establishment. (5) when is monopolized to third party, realization of electronic maritime insurance policy offer.

• International Commerce and Information Review
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• v.6 no.2
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• pp.65-84
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• 2004

Korean Government has provided special support to Korean export industry during past 40 years. However, due to the agreement on UR and appearance of WTO, the Government can't provide most of the subsidies which were allowed before WTO era. Hence, export insurance system became more useful tool since it's one of the few allowed subsidies under WTO. This study tries to find the impacts of export insurance systems on the exports in Korea, the United States, and Japan. Firstly, this study surveyed the export insurance systems of Korea, the United States, and Japan. Then, using a regression analysis it analysed the effects of export insurance systems upon the exports in Korea, the United States, and Japan respectively. The period of data is from 1980 to 1999. The results of the regression analysis for export insurance showed significant and positive effects of both Korean and Japanese but the United States showed insignificant and positive upon the exports.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.55
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• pp.209-240
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• 2012

Since the age of Lord Mansfield, who laid the foundation of the modern English insurance contract law in the second part of the 18th century, English insurance law has developed a unique rule of warranty. Lord Mansfield adopted very different approach and afforded such a strict legal character to insurance warranty, because the promise, given by the insured, played an important role for the insurer to assess the scope of the risk insured at that time. It is still important that the insured keep his promises strictly to the insurer under the insurance contract, but legal environments have changed dramatically since the times of Lord Mansfield. English Law Commission proposed some proposals for reforming the warranty regime to reflect the changes of legal environment in CP 2007. This article is, therefore, designed to examine the proposals and consider their legal and practical implications. The proposals of Law Commission is summarized as following. First, in CP 2007, Law Commission made two principal proposals for reform of the law on warranty. The first is that the insurer should not be entitled to rely on a breach of warranty unless the insured has been provided with a witten statement of what they have undertaken under warranty. The second is that the insurer should not be entitled to reject a claim on the ground that the insured has breached a warranty unless there was a causal connection between the breach and the loss. Secondly, for consumer insurance, the rule requiring a causal connection would be mandatory, whereas for business insurance, it would be possible for the parties to agree on the effect a breach of warranty should have, provided they use clear language to express their intentions. Thirdly, where the insured contracted on the insurer's written standard terms of business, some statutory controls would be afforded to the contract to ensure that the cover was not substantially different from what the insured reasonably expected. Finally, Law Commission propose that a breach of warranty give the insurer the right to terminate the contract, rather than automatically discharging it from liability, but (unless otherwise agreed) only if the breach has sufficiently serious consequences to justify termination under the general law of contract. Having evaluated the proposals of the Law Commission and considered their legal and practical implications, it is quite clear that the proposed rule interfere with freedom of contract and create legal uncertainty. But change can not made without any victims, so Law Commission's attempt to change severe and injust aspects of the warranty regime would be very welcomed and respected.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.39
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• pp.59-85
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• 2008

An independent bank guarantee(aka an independent guarantee) is provided as an security on a principal obligor's performance of his obligation, and a guarantor should pay the guaranteed amount only upon a beneficiary's written demand. A standby letter of credit has been used in the United States, since it was construed that a bank should not issue a guarantee. There was wide misunderstanding that a standby letter of credit differs from an independent bank guarantee. However, a standby letter of credit is the same security as an independent bank guarantee, and in international business a standby letter of credit is not differentiated from a independent bank guarantee. An independent bank guarantee are independent from the underlying contract, unconditional, and irrevocable. And a guarantor should pay upon written demand without proving a principal obligor breaches the underlying contract. These features of an independent bank guarantee has been abused in international transactions. Thus it has been proposed that some exceptions to the features of an independent bank guarantee should be allowed. United Nations Convention on Independent Guarantees and Standby Letter of Credit(1995) stipulates some exceptions to payment obligation. Export bond insurance, a part of export insurances, operated by the Korea Export Insurance Corporation under the Export Insurance Act, is used as a security for unfair calling by a beneficiary under an independent bank guarantee. Most of the export subsides by the government are prohibited under WTO's Agreement on Subsidies and Countervailing Measures. However, as export insurance is allowed under the WTO, it operates a significant role in enhancing the export. In the event that export bond insurance is provided for a guarantor, an obligor who is subject to recourse by a guarantor, can be exempt from the recourse in case of unfair calling. The Korea Export Insurance Corporation, an insurer, bears unfair calling risk by a beneficiary. Generally it is understood that a demand shall be made before the expiry of an independent bank guarantee. However this is not absolutely true, it shall be decided by URDG, ISP98, the governing law.