• Title/Summary/Keyword: 분쟁절차

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The Characteristics and Suggestions of the Unilateral Retaliation in the WTO Dispute Settlement Mechanism (WTO분쟁해결제도에서 일방적 보복조치의 특성과 시사점)

  • Hong, Sungkyu
    • International Commerce and Information Review
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    • v.19 no.1
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    • pp.155-187
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    • 2017
  • In the US, the Sections 301 of the Trade Act of 1974 are still being used to resolve disputes. The U.S' such unilateral retaliations grounded on the Sections 301 of the Trade Act, in fact, violate the WTO agreements and hinder the development of international trade as the trade partner may assume it as a reprisal move impeding the fair settlement of disputes. Here, this study is going to examine the characteristics and functions of the WTO dispute settlement system briefly and compare the countermeasures recognized to be legitimate by the WTO with the U.S' unilateral retaliation. Also, this author will analyse the US-Japan Automobiles (DS6) and EC-Bananas III (DS27) as one of the typical cases resulted from the unilateral retaliation. According to the result, these cases do not conform to WTO-consistency, and it implies that it is absurd to accept the US' unilateral retaliation internationally. In conclusion, presently, it is a global trend to solidify protectionism, and to vitalize trade and resolve trade disputes efficiently, it is needed to prohibit the recourse to unilateral retaliations and also positively apply the WTO dispute settlement system(DSU) defining rules about how to strengthen the multilateral system.

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Simplification of Multiple Stage-Discharge Curves by Using Probability Distribution Curve (확률 분포 곡선을 이용한 다중 수위-유량 곡선 단순화)

  • Kim, Tae Jin;Kim, Jung Ho
    • Proceedings of the Korea Water Resources Association Conference
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    • 2018.05a
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    • pp.284-284
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    • 2018
  • 대부분의 물분쟁의 경우 강 또는 호수를 공유하고 있는 국가 간에 발생하고 있으며 국내에도 제한된 물로 인하여 다양한 지역에서 물 분쟁이 발생하고 있다. 이렇듯 물 부족으로 인한 물분쟁 현상은 점차 심화되고 있으며 특히 강을 공유하고 있는 인접지역에서 발생할 가능성이 높아지고 있다. 본 연구에서 Water Rights Analysis Package (WRAP) 모델의 국내 적용을 위한 기초자료 구축단계로서 수위별로 되어 있는 수위-유량 관계 곡선식을 단순화하여 자연하천유량 산정을 위한 절차를 간편화하였다. 첫째, 확률 분포곡선을 이용한 수위 자료 구간별 구분; 둘째, 구분된 수위 자료에 대한 회귀 분석 실시; 셋째, 실측 유량 자료 및 모의 유량 자료를 이용한 신뢰도 산정 및 비교를 통한 본 연구결과에 대한 타당성 검토를 수행하였다.

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A Study on Application of Summary Procedure in Case of Software Appraisal (소프트웨어 감정의 간이절차 활용 논의에 대한 검토)

  • Kim, Si-Yeol;Kang, Yoon-Soo
    • Journal of Software Assessment and Valuation
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    • v.15 no.2
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    • pp.25-33
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    • 2019
  • In copyright dispute on software, appraisal procedure is needed, which is regarded as an implementation of the right to fast trial. Considering that, in practice, there has been a long discussion of attempting to operate the software appraisal as a summary procedure. This was done usually by reducing the resources devoted to the summary procedure, however, this way inevitably makes difference in a result obtained through the procedure. Therefore, this research reviewed the previous operation of summary procedure in software appraisal, focusing on intrinsic nature of the summary procedure and role of software appraisal in the trial process.

A Legal Study On Expert Opinion of Medical Records and the Judgment - Focus on Medical Civil Liability - (진료기록감정 및 그 판단에 대한 법적 고찰 - 의료민사책임을 중심으로 -)

  • Baek, Kyoung-hee
    • The Korean Society of Law and Medicine
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    • v.20 no.1
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    • pp.83-107
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    • 2019
  • In order to resolve a dispute over a medical accident, the court is in the process of appraising the medical records for medical professionals to report their medical expertise or judgments using that knowledge. The consequences of expert opinion about a medical accident are only one of the methods of evidence as a reference. Therefore, in principle, the court should not be bound to the results, but the court, which is not a medical expert, can not completely rule out medical expert opinion as to whether there is medical malpractice and causality. Therefore, it can not be denied that the proportion of expert opinion of medical records in the dispute about medical accidents is high and it has an important influence on the judgement of the court. In this paper, we examine the significance and function of expert opinion of the medical accident, examine the appraising procedure of the medical records in the court and the appraising procedure of the medical accidents of the Korean medical dispute mediation arbitrator do. In addition, I would like to examine what kind of attitude is being taken in response to expert opinion of medical records in Korea to court, to examine the implications of the case of Japan as a foreign system, and to suggest improvement points in the expert opinion procedure of medical record filing in Korea. In particular, I would like to suggest improvements on issues such as the fairness of the expert opinion of medical records and the delays in litigation due to delays in the process of expert opinion.

A Study of the Regulations for Calculation of Acceleration Costs on Construction Work (건설공사 공기단축으로 인한 추가비용의 산정규정에 관한 연구)

  • Min, Byeong-UK;Park, Hyung-Keun
    • KSCE Journal of Civil and Environmental Engineering Research
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    • v.37 no.2
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    • pp.409-417
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    • 2017
  • The study is concerned with doing research on the plan to prevent the dispute occurring between contract parties regarding the additional cost generated when the construction period is shortened during construction work. After the review of the claim cases and the judgment cases of the court regarding the additional cost caused by the shortened construction period, the representative problem is the incomplete regulations on calculating the additional cost. In the 1st stage of the results of the research on the problem, the procedure handling the additional cost is presented, and the process of planning and approving the shortening of the construction period is gone through in the stage of the procedure to prevent the dispute on the additional cost between contract parties. In the 2nd stage, the plan on enacting and revising the regulations on removing the incomplete problems of the current regulations relating to the calculation of the additional cost. The basis for the advanced contract management is provided by resolving the incomplete problems of the current regulations relating to the shortening of the construction period with the prevention of a dispute and the resultant loss.

The Improvement Measurement on Dispute Resolution System for Air Service Customer (항공서비스 소비자 분쟁해결제도의 개선방안)

  • Lee, Kang-Bin
    • The Korean Journal of Air & Space Law and Policy
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    • v.33 no.2
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    • pp.225-266
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    • 2018
  • In 2017, 1,252 cases of damages relief related to air passenger transport service were received by the Korea Consumer Agency, a 0.8% drop from 1,262 cases in 2016, the first decline since 2013. In 2017, 444 cases (35.4%) out of received cases of damages relief in the field of air passenger service received by the Korea Consumer Agency were agreed on, and out of cases that were not agreed on, the most number of 588 cases (47.0%) were concluded due to information provision and counseling, and 186 cases (14.9%) were applied to the mediation of the Consumer Dispute Mediation Committee. Major legislations that contain regulations for the damages relief and disputes resolution of air service consumers include the Aviation Business Act and the Consumer Fundamental Act, etc. The Aviation Business Act provides the establishment and implementation of damage relief procedure and handling plan, and the receiving and handling of request of damage relief by air transport businessman, and the notice of protection standard for air traffic users. The Consumer Fundamental Act provides the establishment and management of the consumer counseling organization, the damage relief by the Korea Consumer Agency, the consumer dispute mediation, and the enactment of the criteria for resolving consumer disputes. The procedures for damages relief of air service consumers include the receiving and handling of damages relief by air transport businessman, the counseling, and receiving and handling of damages relief by the Consumer Counseling Center, the advice of mutual agreement by the Korea Consumer Agency, and the dispute mediation system by the Consumer Dispute Mediation Committee. The current system of damage relief and dispute mediation for air service consumer have the problem in the exemption from obligation of establishment and implementation of damage relief plan by air transport businessman under the Aviation Business Act, the problem in the exemption from liability in case of nonfulfillment and delay of transport by aviation businessman under the criteria for resolving consumer disputes in the aviation sector, and the uppermost limit in procedure progress and completion of consumer dispute mediation under the Consumer Fundamental Act. Therefore, the improvement measurements of the relevant system for proper damage relief and smooth dispute mediation for air service consumer are to be suggested as follows: First is the maintenance of the relevant laws for damage relief of air service consumer. The exemption regulation from obligation of establishment and implementation of damage relief plan by air transport businessman under the Aviation Business Act shall be revised. To enhance the structualization and expertise of the relevant regulation for protection and damage relief of air service consumer, it will be necessary to prepare the separate legislation similar to the US Federal Regulation 14 CFR and EU Regulation EC Regulation 261/2004. Second is the improvement of criteria for resolving air service consumer disputes. For this, it will be necessary to investigate whether the cause of occurrence of exemption reason was force majeure, and distinguish the exemption from liability in case of nonfulfillment and delay of transport by aviation businessman under the criteria for resolving consumer disputes in the aviation sector, and revise the same as exemption reasons regulated under the air transport chapter of the Commercial Act and Montreal Convention 1999, and unify the compensation criteria for the nonfulfillment of transport that the substitute flight was provided and the delay of transport. Third is the reinforcement of information provision for damage relief of air service consumer. Aviation-related government agencies and concerned agencies should cooperate with airlines and airports to provide rapidly and clearly diverse information to the air traffic users, including laws and policies for damages relief of air service consumers. Fourth is the supplement to the effectiveness, etc. of consumer dispute mediation. If there is no sign of acceptance for dispute mediation, it is not fair to regard it as acceptance, therefore it will be necessary to add objection system. And if a dispute resolution is requested to another dispute settlement agency in addition to the Consumer Dispute Mediation Committee, it is excluded from the damage relief package, but it should be allowed for the party to choose a mediation agency. It will be necessary to devise the institutional measures to increase the completion rate of mediation so that the consumer dispute can be resolved efficiently through the mediation. Fifth is the introduction of the air service consumer arbitration system. A measure to supplement the limitations of the consumer dispute mediation system is to introduce the consumer arbitration system, but there are two measurements which are the introduction of the consumer arbitration under the Consumer Fundamental Act and the introduction of the consumer arbitration under the Arbitration Act. The latter measurement is considered to be appropriate. In conclusion, as a policy task, the government should prepare laws and system to enhance the prevention and relief of damages and protection of the rights and interests of air service consumers, and establish and implement the consumer-centric policy for the advancement of air service.

Benchmarking Research Based on Contract Documents for Successful ADR Implementation to Domestic Construction Industry (ADR 활성화를 위한 건설 계약서의 해외 사례 벤치마킹 연구)

  • Choi Jeong-Won;Kim Sang-Bum
    • Proceedings of the Korean Institute Of Construction Engineering and Management
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    • 2004.11a
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    • pp.629-633
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    • 2004
  • The number of claims and disputes among project participants has been steadily increasing last a few years and it creates numerous conflicts and problems in the domestic construction industry. One of the root causes of claims and disputes can be explained by the fact that project objectives of participants are offer different and not aligned. This research is considered as a pre-study of developing a strategy to mitigate conflicts such as claims and disputes in the domestic construction industry by utilizing Alternative Dispute Resolution (ADR) techniques. This research focused on improving standard contrast documents to establish a systematic dispute resolution process which emphasize the ADR method. To do so, several well-recognized contract documents developed by FIDIC, AIA, ECC were throughly investigated and analyzed using a benchmarking process. Result of the research propose needs of improving the domestic construction document's some clauses and the details will be further Investigated through surveys and expert's opinions.

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A Study on Dispute Claim to the Apartment Reconstruction Projects (공동주택 재건축 사업의 분쟁 클레임에 관한 연구)

  • Lee, Mi-Ae;Kim, Dea-Young
    • Proceedings of the Korean Institute Of Construction Engineering and Management
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    • 2008.11a
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    • pp.268-273
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    • 2008
  • Because a procedure is complicated and various related parties participate in the redevelopment and reconstruction project, it can be extended to diverse disputes when the relation with the related parties is smoothly adjusted. In particular, when the dispute occurs in a phase of occupancy after the complete construction, the regional residents-centric association must give up many rights of invisible parts caused by the construction company's profit maximization because they are short of professionalism about the business. Accordingly, this study is aimed at providing the construction project manager's dispute and claim process for responding to the dispute or claim reasonably and for obtaining the client's (association) rights for the reconstruction project, and at developing the checklist for obtaining the necessary documents by each phase, when the dispute or claim is made by the association against the construction company after the completion of construction. Through this study, the association can obtain the related documents in advance and can implement the reasonable response data when the dispute or claim occurs due to it. Also, it will enable the construction manager to analyze the project costs reasonably and will reduce the estimated wastes. That is, the work efficiency is expected to be improved.

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필리핀의 중재제도 고찰 (OVERVIEW OF ARBITRATION IN THE PHILIPPINES)

  • Panga Jr., Salvador S.
    • Journal of Arbitration Studies
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    • v.19 no.2
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    • pp.179-195
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    • 2009
  • 필리핀의 중재제도를 규정하고 있는 법령은 다음과 같다. 즉 필리핀 민법(법률 제386호), 중재법(법률 제876호), 대체분쟁해결법(법률 제9285호), 국제상거래중재에 관한 국제 연합 국제상거래법위원회(UNCITRAL) 표준법 및 건설산업중재에 관한 대통령령(제1008호)이다. 2004년의 대체적 분쟁해결 제도(ADR) 에 관련된 필리핀 의회의 입법은 필리핀의 중재 실무와 절차에 광범위한 변화를 가져 왔다. 또한 국제중재실무에서 필리핀에 많은 도움을 주었다. 다른 한편으로는 상당한 변화를 가진 UNCITRAL 표준법의 채택과 국내 중재를 관장하는 법률속에 표준법 조항을 편입함으로써 필리핀은 분쟁해결의 대체안으로써 정책 결정의 실행에 대한 중재법의 인식과 ADR법에 있어서의 정책조문의 검토로 보다 실질적인 중재제도가 정착되는 기반을 조성하게 되었다. 국내에서 수행하고 있는 국제적인 중재는 아직까지는 비교적 적다고 생각된다. 그러나 ADR법 내에 규정된 강력한 ADR찬성정책과 ADR에 관대하고 특히 중재에 호의적인 대법원의 친중재적 판결로 인해 향후 수년내에 필리핀과 주변국과의 무역이 크게 증대될 것으로 전망된다.

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A Study on the International Jurisdiction of Electronic Commerce (전자상거래(電子商去來)의 국제재판관할권(國際裁判管轄權)에 관한 연구(硏究))

  • Kim, Young-Joon
    • International Commerce and Information Review
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    • v.2 no.2
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    • pp.1-18
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    • 2000
  • 최근 인터넷 등의 네트워크의 발달과 확산 보급은 가상공간(Cyber Space)이라는 특수한 공간을 창출하면서 이를 기반으로 한 전자상거래는 국내와 국외를 막론하고 급격히 증가하고 있으며, 이에 따른 분쟁의 발생가능성도 확대되고 있다. 이와 관련된 여러 가지 법적 쟁점 가운데 분쟁해결의 절차적 문제로서 재판관할을 어떻게 결정할 것인가가 문제된다. 이와 관련 기존의 국제상거래의 국제재판관할의 법리가 인터넷을 통한 전자상거래와 관련된 경우 어떻게 적용되는지에 대한 기본적 의문이 발생한다. 본고에서는 국제상거래의 국제 재판관할에 관한 기왕의 논의를 간략히 검토하고 특히 전자상거래를 중심으로 하여 인터넷이 관련되는 경우 어떻게 적용가능한지를 검토하고자 한다.

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