• Journal of Korea Fair Competition Federation
• /
• no.98
• /
• pp.10-16
• /
• 2003

손해배상제도가 활성화되면 공정거래법 위반행위로 피해를 입었다고 주장하는 당사자들은 공정위에 시정조치의 발동을 촉구하는 것과 별도로 법원에 손해배상청구를 하여 신속한 권리 구제를 받을 수 있고, 동일한 사안에 대하여 공정위와 법원이 관여하게 되는 기회가 확대됨에 따라 현재와 같은 양 기관 사이의 판단 과정의 괴리도 좁혀질 수 있을 것으로 기대된다. 다만 개정안에도 불구하고 손해배상소송에서 입증이 어려운 영역인 인과관계와 손해액에 관한 피해자의 실질적인 입증부담은 여전히 남아 있으므로 개정안에 따른 제도개선이 소 제기 활성화라는 효과를 얼마나 가져 올 것인지는 더 지켜볼 문제이다.

• Journal of Arbitration Studies
• /
• v.15 no.3
• /
• pp.85-112
• /
• 2005

The purposes of this paper are to investigate how deeply the courts in Korea and the U.S. are involved in the enforcement process of the arbitral award. The extent of judicial review of arbitral award and the procedures to execute the arbitral award were explored and compared in each of the countries. In Korea the winning party should file a suit for enforcement judgement to execute the arbitral award, while the winning party in the U.S. should file an application for motion. Such difference in the execution process between Korea and the U.S. may be led to a higher burden on the Korean winning party in the execution process due to the complexity and instability during the new litigation for enforcement judgement. In addition, the Korean Arbitration Act does not grant any authority for the court to intervene with the substantive matters in the arbitral award, while in the U.S. the Common Law allows the court to vacate the arbitral ward when the arbitral award is entered with the manifest disregard of the law by the arbitral tribunal. It would be more practical for the court to supplementarily intervene with the arbitral award which obviously hurts the legal interest of the arbitral parties.

• Journal of Korea Port Economic Association
• /
• v.25 no.1
• /
• pp.169-190
• /
• 2009

In order to establish whether any charterparty terms are incorporated into the bill of lading, the first necessity is to specify the charterparty alluded to the incorporation clause in the bill of lading. However, this becomes a potential problem where the date of a charterparty is not inserted on the face of the bill of lading in case a vessel is in operation under a number of charterparties. Over many years this issue has frequently been raised before the English courts, but it is still causing problems. The purpose of this study is to examines the several English authorities which dealt with the issue relating to the specification of charterparty incorporated into the bill of lading and to present some interpretation rules and the order of priority. As a result, the comparative analysis of English authorities shows that they failed to give dear guidance on this issue. This article therefore suggests four interpretation rules such as the precedence of a B/L's face, the rule of appositeness, surrounding circumstances, the contra proferentem rule and shows that the precedence of a B/L's face is most applicable for all parties.

• The Journal of the Korea Contents Association
• /
• v.21 no.3
• /
• pp.645-652
• /
• 2021

This paper analyzed the so-called 'Honey Butter Almond case', which became a hot topic by showing that the packaging design of a product can be distinguished as a recognizable trademark, not just a pattern. In the judgment, the issue was whether the discrimination power of the registered trademark and the similarity to the previously used trademark. First of all, with respect to the discrimination power of the registered trademark, the court said that the package front figure functions as an identification mark of the source, as long as the specificity of the expression method and overall composition are distinct from the commonly used. And the court said that it is difficult to say that the dominant impression is similar to the previously used trademark (the snack 'Honey Butter Chip') in terms of its name and idea. This case is acknowledging the function of the packaging design as a product label, and also acknowledging it can acquire identification as a distinctive trademark through the uniqueness of its composition and expression method.

• Journal of Legislation Research
• /
• no.53
• /
• pp.553-591
• /
• 2017

This article discussed whether so-called 'foreign judgments obtained by fraud' is in breach of public policy provided in Article 217(1)(3) of Civil Procedure Act and, if so, what the specific requirements could be. The summary of the conclusion is as follows. The 'foreign judgments obtained by fraud' is against the municipal procedural public policy and then shall not be recognized. In this regard one more question comes up whether reviewing if 'foreign judgments obtained by fraud' is in breach of the municipal procedural public policy is allowed in consideration of the principle of prohibition of $r{\acute{e}}vision$ au fond. Since the principle is applied entirely in the course of the above reviewing, it is allowed only when it does not breach the principle. The two instances that the reviewing is allowed are where the defendant was not able to produce evidences of fraud during foreign procedures and where the defendant's claim of fraud without evidences was rejected by the foreign court and then evidences of fraud were found after the foreign procedure was completed. On the other hand, the specific requirements for 'foreign judgments obtained by fraud' to be against public policy are following four requirements based on principle of strict interpretation of public policy. (1) plaintiff's intention to fraud, (2) preventing the defendant from being involved in the procedure by fraud or cheating the foreign court using manipulated evidences, (3) the defendant could not present himself in the foreign court procedure due to the plaintiff's extraneous fraud or the foreign court decided wrongly due to intrinsic fraud, and (4) defendant's fundamental procedural rights were breached to the extent that recognizing the effect of foreign judgments was against justice defendant's fundamental procedural rights. These results differ from the Supreme Court 2004. 10. 28. ruling 2002da74213 in many aspects. Most of all, in my opinion there is no need to distinguish between intrinsic fraud and extraneous fraud and reviewing 'foreign judgments obtained by fraud' is not in conflict with the principle of prohibition of $r{\acute{e}}vision$ au fond but the both may coexist. In this regard I expect the variation of the Supreme Court's position and hope to contribute to academia and practitioners.

• Korean journal of communication and information
• /
• v.38
• /
• pp.211-244
• /
• 2007

Article 17 and 18 of the Korean Constitution respectively prescribe the violation of individual's right to privacy and the secrecy of wire communication. Meanwhile, Article 20 of the Criminal Code provides that an act which is conducted within the ambit of laws or pursuant to accepted business practices or which does not violate the social norms shall not be punishable. In 1999, the Constitutional Court held that media reports on public matters of public figures must be given strong constitutional protection, and treated differently from reports on private matters of private figures. In accordance with the decision, the Supreme Court has expanded the scope of constitutional guarantee of freedom of expression since 2002. This study analyzes the issue of media liability for publication of illegally intercepted wire communication by a third person. Particularly, it reviews Seoul High Court's ruling on 'X-file scandal' which disclosed intercepted wire communications between notable public figures regarding a slush fund for a presidential candidate. In the light of this analysis, the study concludes that the media reporting of the intercepted communication does not violate social norms of Article 20, and therefore it is entitled to a constitutional privilege.