• 한국건설관리학회논문집
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• 제7권6호
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• pp.99-111
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• 2006

최근 건설산업의 급격한 환경변화로 국내 건설업계는 어려운 환경에 처해 있다. 건설사의 재무구조 악화로 인한 공사 중단이나 계약 해제 등으로 보증채권자에 의한 건설보증 분쟁도 꾸준히 증가하고 있는 추세이다. 보증채권자에 의한 분쟁 제기 시 소송이 아닌 ADR(Alternative Dispute Resolution), 특히 협상을 통한 분쟁 해결이 가장 바람직한 방안이나 활용할 만한 자료가 극히 제한적이어서 원만히 해결되지 못하고 결국 분쟁으로 이어지고 있는 것이 현실이다. 본 연구에서는 건설분쟁 중 건설보증 분쟁 발생 시 ADR을 통한 해결가능성을 모색하고자, 최근 5년간(2000년${\sim}$2004년) 건설보증과 관련한 대법원 판례를 분석하여 가설 설정과 검증을 통하여 소송의 유효성을 분석하였다. 본 연구결과 소송에 의한 분쟁 해결은 평균 1,067일(최장 1,965일)이 소요되는데 비하여 원고 승소율은 45% 미만으로 나타나 쌍방 모두 이에 따른 시간적, 경제적 손실이 적지 않은 것으로 나타났다. 본 연구를 통하여 제시된 여러 변수들의 승소율을 감안하여 보증계약 당사자가 어느 정도 수용 가능한 기준을 가지고 협상에 참여한다면 손실을 최소화하면서 각자의 만족도를 충족시켜 주게 될 것입니다. 그러나 본 연구에 대한 결과만으로 현재 진행 중이거나 향후 발생하게 될 모든 건설보증의 클레임이나 분쟁에 대한 대응방안을 마련하는 데에는 한계가 있다. 다만, 이상의 연구 결과를 활용하여 보다 적극적으로 건설보증 분쟁을 예방하고 관리방안을 마련하여 단계적이고 체계적으로 시행해 나가는 방안을 모색해야 한다.

• 한국중재학회지:중재연구
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• 제15권3호
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• pp.3-25
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• 2005

The companies' management strategies of the electronic commerce market are different from those of the traditional market. The main difference between the electronic commerce market and the traditional market is an IT network system which is a companies' management strategies in the electronic commerce market. This study focuses on the examination and analysis of the companies' management strategies which are constituted through influence on the effectiveness of the IT network system in the electronic commerce market and Promoting Arbitration System in The Era of Digital Economy this study is to introduce several alternative policies of the Government and companies to such formated IT network system of the electronic commerce market in the future. It's also suggested that the Korean Commercial Arbitration Board (KCAB) fully cover consideration and arbitration, while KCAB for Electronic Commerce activates its proper role of consulting and ad hoc arbitration by using electronic information. E-commerce sets up the probability that its merchants and customers will not exist in the same legal jurisdictions. The confusing application of laws and wide geographical dispersion of these parties will necessitate a faster and cheaper dispute resolution methodology. Therefore, online ADR may be effective for e-commerce dispute resolution. The examples of online ADR operation are the cyber mediation of Electronic Transaction Dispute Resolution Committee, the cyber mediation of Korean Commercial Arbitration Board, the cyber mediation of Click N Settle, the online ADR of BBB online, and the cyber arbitration of virtual Magistrate. The paper points out the last one as the most desired practice. This study results are how to minimize the disputes and the method of dispute settlement. Therefore, a role of arbitration proposed and emphasized. To protect the dispute in advance, it's suggested to revise rules timely following on technical changes, and emphasized that the dispute has to lead to arbitration settlement not for consuming unnecessary time and finance for enterprises and consumers.

• 한국중재학회지:중재연구
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• 제30권4호
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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.

• 한국중재학회지:중재연구
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• 제24권1호
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• pp.159-179
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• 2014

Currently disputes related to sports arise in various ways. Moreover, as the awareness of the rights of the people in the field of sports grows the chances of disputes occurring increases. Therefore, the number of sports disputes which will be dealt with by courts will increase. On the other hand, there are demands for fast and efficient legal resolutions for diverse sports disputes. However, as a dispute resolution system, the current domestic arbitration for sports disputes exposed several problems: the lack of professional arbitrators for sports disputes, procedural elements of delay, and the lack of promotion of the arbitration system. This study will first analyze the system for the resolution of domestic sports disputes. Then this study will review of the system for the resolution of international sports disputes and propose the establishment of an arbitration system for the resolution of domestic sports disputes.

• 법제연구
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• 제44호
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• pp.343-386
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• 2013

우리나라의 금융ADR제도는 금융감독당국인 금융감독원 및 그 안에 설치되는 금융분쟁조정위원회가 제도운영의 주체가 되는 이른바 "금융분쟁조정제도"로 대표된다고 할 수 있고, 이를 흔히 "행정형 금융ADR제도"라고 평가하고 있다. 이 제도는 금융위원회설치법(1997)에 의해 1999년경에 도입되어 10여년에 걸친 제도운영의 성과를 축적하여 현재에 이르고 있다. 그런데 정작 우리나라에서 금융ADR제도가 주목받기 시작한 것은 대체로 2008년의 이른바 금융위기 이후에 금융소비자보호가 강조되기 시작하면서이다. 금융거래를 통하여 피해를 입은 금융소비자를 보호하기 위한 제도적 방안의 하나로 "소송외적 분쟁해결제도(이른바 ADR)"에 대한 관심이 높아졌기 때문이다. 그나마 우리나라 금융ADR제도에 관한 논의는 주로 감독체제 개편과 관련하여 금융ADR기관의 운영주체를 누구로 할 것인가에 집중되었다는 점에 특이성이 있고, 우리 금융ADR제도의 특징을 객관적인 입장에서 면밀하게 분석한 위에 제도개선의 방향성을 제시하는 논의는 충분하게 이루어졌다고 할 수 없다. 본고는 이와 같은 점들을 문제의식으로 하여 우리나라의 금융ADR제도의 특징을 분석하여 하나의 제도모델로 구체화하고, 이를 통하여 제도의 문제점을 분명히 하고 그 개선방향을 제시하고자 하였다. 우리나라 금융ADR제도는 "행정형 통합형 합의형+집행력 부여형(준사법형) IDR비전치형(ADR기관내 합의권고형)"의 특징을 갖는 제도모델로 평가할 수 있다. 그러나 준사법형 효력모델을 채택하면서도 제도의 실효성확보를 위한 제도적 기반을 갖추지 못하고 있고, 통합형 ADR기관의 제도운영의 부담이 크다는 두 가지 문제점을 극복하여야 하는 과제를 동시에 안고 있다. 그러한 관점에서 본고는 현행 제도의 실효성 확보와 업계자율형 ADR제도(특히 IDR전치형 제도)의 확충을 위한 개선방안을 제시하였다. 특히 제도의 실효성확보 방안으로서 조정안에 편면적 구속력을 부여하지 않고도 조정성립율을 높일 수 있는 방안이 제도개선으로서는 최선책이라는 전제 하에 내부의 인원확충을 도모하고 조정절차 및 효력을 차등화하는 방안, 금융기관이 조정절차 중에 소송으로 도피하는 문제점을 해결하기 위하여 피신청인인 금융기관은 합의권고 또는 조정안을 제시받기 전에는 소를 제기하지 못하도록 규제하는 방안, 소송과의 연계제도로서 소송절차의 중지제도 외에 시효중단효를 부여하는 방안을 각각 제시하였다.

• 한국중재학회지:중재연구
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• 제25권1호
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• pp.87-105
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• 2015

Intellectual property law is slowly fighting to keep pace with the rapid growth of the fashion industry. Copyright and patent law have proven only minimally effective in fashion, even in the US and other top fashion nations, forcing designers and fashion companies to rely on their trademarks to protect their work. Litigating trademark disputes in the fashion industry presents a host of problems as witnessed in a recent Christian Louboutin case, leading the parties to resort to Alternative Dispute Resolution(ADR) and Online Dispute Resolution(ODR). ADR methods, especially arbitration, are increasingly emerging as substitutes to litigation. Using these methods, the fashion industry (CFDA in the US case) should sincerely consider a self-regulating program in which its members, both fashion designers and corporations alike, can resolve disputes in a manner mutually beneficial to all parties in order to preserve the industry's growth, solidarity, and esteem In particular, for the US fashion industry, the ongoing Innovative Design Protection and Privacy Prevention Act(IDPPPA) anti-counterfeit legislation could have caused a chilling effect against innovation. New designers with no name and less resources who could normally flourish producing inspired-by designs may find themselves subject to copyright infringement legislation since the IDPPPA may expand the protection of established designers and brands with more resources. This fear and its implication could be solved by the fashion industry itself since fashion experts know best how to handle these fast-paced issues arising in the field. Therefore, stakeholders in the fashion industry should commit to protecting innovation within fashion on a long-term basis by establishing a panel handling an ADR process. This can mitigate the uncertainty created by the IDPPPA or any other legislation from elsewhere, which could result in a shying away from experimentation with inspired-by designs.

• 한국중재학회지:중재연구
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• 제21권2호
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• pp.85-112
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• 2011

These days utilization of copyright in daily life and economic activities is becoming more important than ever, and IT technology is developing day by day. Along with those fact, copyright infringement and dispute is naturally increasing. This thesis dealt with the 3 different issues of ADR on copyright. The First part, introduce ADR system that was performed by Korea Copyright Committee according to Copyright law. This paper evaluate the committee's efforts to provide resolution of copyright disputes via conciliation was effective. So it needs to be look over several countries' ADR, beside conventional judicial remedy. And Korea's copyright conciliation system which is successfully operating also introduced. Second, In many countries, including South Korea are take advantage of conciliation as the way to settle down the dispute over copyright. Furthermore, looked over if we can use arbitration as tool to settle dispute or not. Currently in Korea, patent dispute is handled by Industrial Property Dispute Conciliation Committee(The Invention Promotion Act Ch.5) and Layout-design Review and Mediation Committee(The Act on the Layout-designs of Semiconductor Integrated Circuits Art.29-34), but using performance of those two committee is still too low. In comparison, the copyright committee, a affiliation organization of the ministry of culture, sports and tourism has much more result in conciliation compare with patent dispute. Copyright disputes has arbitrability of it's subject-matter and many regulating organs are interested in it. (especially, binding of arbitral award and final resolution). Take advantage of both conciliation and arbitration could be good way to resolve copyright disputes. Third, the writer look at the proposal on the creation of Northeast Regional Center for Intellectual Property ADR. Because of the nature of copyright and rapid development of internet technology, international use of work become more frequent and accordingly infringement cases are increasing. The role of commercial arbitration regimes and institutions which has progressed significantly worldwide level, but which has only just begun in the intellectual property ADR area, leads also to a clash of often very different legal cultures and protection in a market economy. International cooperation in regional area with conflict interests becomes an important alternative. But it will depend on the building of regional institutions and mechanisms. The feasibility of this proposal and preconditions were examined. Establishment of new international organization requires a lot of time, cost and efforts. And risk of failure is much too high. Therefore factual, statistical review should be preceded. In addition, technical measures, such as on-line arbitration is necessary to review also. Furthermore in order to establish new organization, the relative law, legal environment, public sentiment and international compliance must be carefully considered with factual review about the needs and economic benefits of each country Yet on complex regulatory matters such as IP and ADR, a great deal of the potential benefits from international standards arises not from the international legal framework nor even the formal content of national legislation, but from the informed and effective use made of the possibilities within the system, including by policymakers and regulators.

• 통상정보연구
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• 제5권1호
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• pp.137-158
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• 2003

The rapid growth of electronic commerce increases the potential for conflicts over contracts which have been entered into online(e.g. about price, late delivery, defects, specifications...). Using arbitration as a dispute resolution alternative is becoming increasingly popular especially in cases involving intellectual property rights and technology disputes since speed and secrecy are essential. The use of online dispute resolution(ODR) mechanisms to resolve such e-commerce conflicts is crucial for building business, consumer confidence and permitting access to justice in an online business environment. However, the use of the Internet and the World Wide Web in dispute resolution has an impact on the types of communication implied in the relevant processes(negotiation, mediation and arbitration). This paper deals with legal issues with respect to the practice of online arbitration. The paper begins with a brief introduction to the theories behind arbitration. These sections will be followed by a discussion on the specifics of online arbitration and the problems the process faces online arbitration by the legal community.

• 한국중재학회지:중재연구
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• 제19권3호
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• pp.25-42
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• 2009

That occur in international trade disputes between the parties without resorting to a court trial on the basis of principle of government by the parties to resolve the dispute resolution in general (Alternative Disputes Resolution: ADR) agreed to, reconciliation, coordination, mediation and other methods are. Here, unlike arbitration and other dispute resolution arbitrator, the court confirmed the arbitration award came from the judge and the same shall become effective in doing international commerce dispute resolution methods are widely used. Arbitration Agreement is a contractual dispute, regardless of whether a certain law there arise about the relationship between the parties, Currently exists, future conflicts can arise in whole or in part by the arbitration agreement is to be resolved. Arbitration agreement include: the effects of out of contract arbitration proceedings, the court does not want the progress of the dispute referred to arbitration proceedings to the effect, and the presence of the parties to the arbitration agreement does not claim to knowing the defense plea that Appeals ticket of destruction that have the effect of demurrer, that the arbitration agreement are rebuttal to the rebuttal of prozesshindernde Einrede and the mediation of a plea on the merits when the first defense must be submitted to the arbitration proceedings in which the applicant until the arbitration award determined that the property dispute to court for water conservation measures to dispose of the watch was in effect for arbitration in the contract. In addition, the arbitration agreement and the court sentenced the same kinds of effects that resolved the final effect, especially at the same time the effect of foreign recognition and enforcement of the decision regarding the New York Convention arbitration award based on the recognition and enforcement of domestic and international effects are being recognized. Consequently, the arbitration agreement to take effect a valid arbitration agreement exists is determined by whether or not staying. Therefore, agreements between individual university entrance exams based on the company signed a contract regarding the effect of arbitration first, associated with individual university entrance exams, and the leading research and analysis, review, and examine the general concept of the arbitration agreement after the arbitration agreement between the parties focuses on information about the effects of study to contribute to the activation of the arbitration system is aimed at the individual university entrance exams.

• 한국중재학회지:중재연구
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• 제25권4호
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• pp.51-75
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• 2015

Administrative ADR to solve new problems has the characteristics of a new project, hence ADR is established and operated with a lack of human and material resources in the process of introducing administrative ADR. Therefore, it is preferred to resolve conflicts by less costly counseling and mutual agreement before mediation. When we try to settle the disputes through administrative ADR at the stage before mediation, it causes problems for the neutrality and impartiality of the dispute settlement procedures. In this case administrative ADR systems should introduce devices that ensure the impartiality of the process. In some issues becoming social problems, relevant administrative agencies are inclined to establish ADR systems. If ADR systems become available, a person who may use ADR services may have some trouble grasping ADR institutions because he/she can hardly distinguish their business affairs. By subdividing administrative affairs, when the disputes have the issues that touch on various fields of the affairs, parties in the disputes have to take ADR procedures one by one in all ADR-related institutions. This may lead to too heavy a burden on the disputing parties, furthermore forcing them to give up the remedies of their rights. For more efficient ADR operations, it is necessary that the institutions which set up and operate ADR systems should actively exchange and cooperate with one another. They need to forge and strengthen the solidarity between administrations and courts. The administrative agencies which run ADR themselves have to build up the devices for preparing human resources and material facilities for administrative ADR.