• 제목/요약/키워드: Alternative Disputes Resolution

검색결과 103건 처리시간 0.024초

동북아 e-Trade 활성화를 위한 e-ADR에 의한 분쟁해결에 관한 연구 (Dispute Resolution by e-ADR for e- Trade in the Northeast Asia)

  • 최석범;박종석;정재우
    • 한국중재학회지:중재연구
    • /
    • 제12권2호
    • /
    • pp.185-220
    • /
    • 2003
  • Korean Government is increasingly focusing on the Northeast Asia Business and Logistics Hub strategy to create a competitive advantage. A key element of this strategy is creating or leveraging distribution and logistics hubs that act as centres for distribution in Northeast Asia. A Northeast Asian e-Hub Policy is required for business hub and logistics hub in the Northeastern Asia. An e-Hub is an integrated, sophisticated set of e-Biz, information and e-trade facilities and services that provides access to a marketplace and exchangee the e-trade data. To study the e-Hub policy, Pan Asian e-Commerce Alliance, Korea-Japan e-Trade Hub project, and ASEM e-Trade project are considered. E-trade via cyberspace may need new methods of dispute resolution to reduce transaction costs for small value-related disputes and to erect structures that work well across national boundaries. Voluntary Mediation Councils and cyber tribunals should be encouraged by governmental sectors to continue developing private sector mechanisms to resolve e-trade disputes. Government-sponsored online cross-border dispute resolution systems may be also be useful to complement these private sector approaches. E-trade in Northeast Asia results in disputes owing to the incompleteness of e-trade law in the countries. These disputes contain disputes regarding e-trade model, central title registry, authentication body. To resolve these disputes in the Northeast Asia, a variety of electronic alternative dispute resolution bodies must be organized under cooperation of Korea, Japan, China. This study deals with the e-ADR construction in the Northeast Asia to resolve the disputes in the e-trade and to activate the e-trade in the Northeast Asia.

  • PDF

상사분쟁해결제도의 이원화(二元化)에 관한 일고(一考) (A Study on the two systems for Commercial Disputes Resolution)

  • 신한동
    • 한국중재학회지:중재연구
    • /
    • 제8권1호
    • /
    • pp.123-148
    • /
    • 1998
  • Recently many controversies originate for varies reasons, ranging from normal market competition to honest disagreements about rights. Disputes also arise from the clash between institutions and individuals. A free society should provide many systems for resolving controversies. We think of the courts as being primary, but, of course, they are not. In Korea, and in most other parts of the world, disagreements are resolved informally, without the need for judicial intervention. Settlements are worked out privately, usually without lawyers and certainly without judges. Most of judges are finding it difficult to cope with the needs and demands of society. Many businessmen who no longer want to get involved in lawsuits, are looking for alternative methods for resolving their disputes. However, there are actually two systems, litigation and arbitration only, to resolve disputes with binding both parties concerned. Litigation emphasizes on the equity and the justice with allowing three time's judgment for the resonable resolution, and arbitration, which is not subject to appeal, stress on the economic settlement rather than justice. Arbitration process results in a final and binding decisions. Although arbitration is a voluntary procedures that is created by the parties themselves, arbitration differs from mediation and conciliation because of its binding power. Arbitration is today coming into fashion as our primary methods for settling disputes. No company wants to have its funds tied up for long periods. Many parties prefer that the decision be final, rather than facing the prospect of extended appellate litigation. Therefore, government must encourage parties to settle their disputes by arbitration instead of litigation.

  • PDF

공동주택 소비자분쟁 경감방안에 관한 연구 (A Study on the Improvement of Consumer Dispute in the Apartment House)

  • 박성용;김석철;오동현
    • 한국중재학회지:중재연구
    • /
    • 제19권3호
    • /
    • pp.199-217
    • /
    • 2009
  • During the urbanization progresses, apartments such as the house of commons, representing our homes are situated in space. However, many consumer problems of our country's apartment house are caused by the government's failure of housing policy and consumer dispute resolution system In this study, apartment house and alleviate consumer disputes relating to in proactive ways to improve the government's housing policy was presented. At the same time, since the revision of Consumer Fundamental Act on collective alternative dispute resolution system has proposed scheme, this occurred after a dispute to resolve the dispute can be more efficient ways.

  • PDF

ADR기본법의 입법론에 관한 연구 (Research on the Legislation theory of the Fundamental ADR Act)

  • 김상찬
    • 한국중재학회지:중재연구
    • /
    • 제13권2호
    • /
    • pp.157-179
    • /
    • 2004
  • Currently major countries, including the USA, have developed and contrived to activate ADR(Alternative Dispute Resolution) in order to both choose effective means for dispute resolution and establish the reformation of the judicial system; thus meeting people's revamped expectations due to the rapid increase of, and diversification in, civil disputes. This is why there has been some haste in many countries to organize systems for this, so called, 'the Fundamental ADR Act' which regulates the essential structure to accelerate the use of ADR and strengthen the links with trial procedures. For example, in 1999 Germany revised it Civil Procedure Act, to allow for a pre-conciliation process in cases involving only small sums of money. Whilst, with regard to the Civil Procedure Act in France, new regulations have been introduced with regard to actions before either a suit or return to conciliation. In the United Kingdom, as far back as 1988, additions to the legal structure allowed for expansion of regulations applying to ADR. By 1999 the new ADR regulations were part of the legal structure of the UK Civil Procedure Act. The USA passed the federal law for ADR in 1998. Since then the world has tried to enact this model in UNCITRAL on international conciliation. When we consider this recent trend by the world's major countries, it is desirable that the fundamental law on ADR should be enacted in Korea also. This paper traces the object, and the regulatory content required, for the fundamental ADR law to be enacted in Korea's future. Firstly, the purpose of the fundamental ADR law is limited only to the private sector, including administrative and excluding judicial sector and arbitration, because in Korea the Judicial Conciliation of the Civil Disputes Act, the Family Disputes Act and the Arbitration Act already exist. Secondly I will I examine the regulatory content of the basic ADR Act, dividing it into: 1)regulations on the basic ideology of ADR, 2)those on the transition to trial procedures of ADR, and 3)those on the transition to ADR from trial procedures. In addition I will research the regulatory limitations of ADR.

  • PDF

환경분쟁해결에 영향을 미치는 요인과 정책대안 (Factors Affecting the Resolution of Environmental Disputes and Relevant Policy Alternatives)

  • 이수장
    • 환경정책연구
    • /
    • 제9권4호
    • /
    • pp.125-154
    • /
    • 2010
  • 오늘날 국가 또는 사회 문제 가운데서 가장 해결하기 어려운 것이 행정당국, 사업시행자, 해당 지역주민 그리고 시민단체 간의 환경분쟁이다. 이러한 분쟁은 환경파괴, 비용과 편익의 불공평성 등으로 인하여 입지과정에서 관련 지역공동체의 강력한 저항이나 반대, 즉 님비(NIMBYism)를 유발한다. 지역기피시설(locally unwanted land uses, LULUs)의 입지나 개발에 대한 반대는 지역공동체의 이기적 편협적인 님비에 기인하는 것이 아니라 삶의 장소와 생태계를 보호하려는 지역주민의 합리적이며 정당한 요구의 표현이다. 따라서 이러한 입지갈등을 해결하기 위해서는 종래와 같은 결정-발표-옹호(decide-announce-defend, DAD)로 표현되는 그들과 우리라는 적대적인 관계가 아닌, 이 해당사자들의 상호작용, 즉 협상에 의한 합의형성(consensus-building)을 하려는 상황이 이루어져야 할 것이다. 이러한 협상은 보다 바람직하며, 실행가능성이 높은 자발적인 과정으로 대안적 분쟁해결(alternative dispute resolution) 방법이다. 이러한 합의형성에 영향을 주는 요인으로 다음 3가지를 들 수 있는데 i)주민참여보장, ii)형평성제고 및 iii)신뢰성강화 등이 그것이다. 이러한 3가지 요인들은 상호 연계되어 상호작용을 하는 체제로 간주할 때 그 시너지효과는 보다 커질 것이다.

  • PDF

독일에서의 환경영향평가와 분쟁조정 (Environmental Impact Assessment and Mediation)

  • Schafer, Bettina
    • 환경영향평가
    • /
    • 제2권2호
    • /
    • pp.41-47
    • /
    • 1993
  • During the last years it became more and more difficult to deal with environmental conflicts using traditional political instruments in industrialized countries. One reason for the occurring problems might be the citizens' awareness of scarceness of nature. Another reason might be the changing legislation with the introduction of the environmental impact assessment (EIA) as an integral part of a project's licensing procedure. The EIA offers new possibilities for citizens to interfere in decision processes and to obstruct projects. The changing situation requires new instruments for conflict solving. Mediation may be considered an alternative or completion to the traditional political instruments. It is a systematic strategy for conflict treatment and. with the support of an independent mediator, allows to reach an agreement among all parties involved. Mediation may be introduced in the EIA One possibility offers the scoping date, which, if the participation of the public is assured, might avoid heavy disputes in the further process. Another connection between the instrument of mediation and the EIA could be the use of the environmental impact study (EIS) as information background for a mediation process. EIA would then be source of information about all environmental aspects. Thus the role of EIA would be extended to being a part of conflict analysis in the alternative dispute resolution process.

  • PDF

소택지 토지이용 변경에 관련된 분쟁론자의 환경 프레임 분석에 관 하여 (An Analysis of Disputants' Environmental Conflict Frames Relating to Ohio Wetland Conversion Disputes)

  • 이기철
    • 한국조경학회지
    • /
    • 제21권4호
    • /
    • pp.1-14
    • /
    • 1994
  • This study attempted to characterize conflict frames of environmental disputes by examining twelve actual wetland permitting cases in Ohio. The participants consisted of such interested parties as applicants, technical, legal or environmental consultants to applicants, U.S.Army Corps of Engineers, U.S.Environmental Protection Agency, U.S.Fish and Wildlife Service, Ohio Environmental Protection Agency, Ohio Department of Natural Resoures, local agencies, the environmental community, and citizens who have been involved of the permitting process. The purpose of this study is to provide empirical evidence of how different perceptual frames existed in the wetland conversion disputes, and to understand different environmental conflict frames that influenced disputants' perception relating to dispute resolution. The vehicles used to collect the necessary data were three survey instruments : Open-ended questionnaires, Likert-type questionnaires, and ranking questionnaires. Forty-three subjects were contacted for open fact-to-fact interviews, 53 subject for Kikert-type mail survey and 54 subjects for ranking instrument mail survey. Analyses of survey results revealed that six different types of frames were clearly identified from all the parties involved in Ohio wetland conversion disputes. It revealed that disputants had statistically significantly different levels of perception to the frames based on the participants' role (i.e. regulator, applicant, commentor), the number of involved parties in the process, processing time and the issuance of a permit. The findings also revealed that information sharing among disputants played a significant role in the process of froming and reframing. The alternative idea, building cooperation through negotiation, was proposed to provide new insight into the resolution of the dispute.

  • PDF

독일의 대체적 소비자분쟁해결법상 분쟁해결 절차에 관한 연구 -분쟁조정인의 법적 지위와 역할을 중심으로- (A Study on Dispute Resolution Procedures under the German Consumer Alternative Dispute Resolution Act)

  • 성준호
    • 한국중재학회지:중재연구
    • /
    • 제32권1호
    • /
    • pp.71-91
    • /
    • 2022
  • The legal integration in the European Union that seeks a unified system in consumer disputes and the German Consumer Dispute Mediation Act based on this pursues the procedural fairness of consumer disputes and the equality of results. The role and legal status of the dispute mediator, who plays a very important role in this process, and the stable operation of the dispute resolution system and the guarantee of reasonable results through the guarantee of fairness and independence are very important values. In particular, the dispute mediator under the Act is conceptually different from the existing mediator or mediator, and through this distinction, the duties and contents of the dispute mediator are also distinguished. For this reason, the qualifications of dispute mediators that affect the outcome of dispute mediation are strictly stipulated. There have been some criticisms of this strictness, and such strictness is also seen as an excessive limitation. However, these standards can be understood as one of the efforts to make the dispute mediation procedure more systematic and to operate objectively in accordance with laws and procedures. In addition, in relation to the issue of independence and impartiality of the dispute mediator, the status of the dispute mediator is guaranteed in various aspects. In economic terms, it is not influenced by external factors, and furthermore, in order to guarantee job stability, the results of job security and dispute resolution are not linked. By examining the appropriate level of discipline for these dispute mediators, we expect the developmental growth of the consumer dispute resolution system under our Act.

중재합의와 중재판정에 관한 소고 -건설분쟁을 중심으로- (Brief Observation on Arbitration Agreement and Arbitral Award - Focusing on Construction Disputes -)

  • 조대연
    • 한국중재학회지:중재연구
    • /
    • 제14권1호
    • /
    • pp.273-314
    • /
    • 2004
  • There is a belief in the construction industry that the traditional court system may not be an ideal forum to effectively and efficiently resolve construction disputes due to the protracted proceedings and the three tier appeal system resulting in a long delay in the final and conclusive settlement of the dispute, relatively high costs involved, the lack of requisite knowledge and experience in the relevant industry, etc. Hence, they assert that certain alternative dispute resolution ('ADR') methods, such as mediation, conciliation, arbitration or a new system for dispute settlement in the form of any combination thereof should be developed and employed for construction disputes so as to resolve them more promptly and efficiently to the satisfaction of all the disputants concerned. This paper discusses certain merits of such assertions and the need for additional considerations for effective resolution of the construction disputes in light of the complexity of the case, importance of expert witnesses, parties' relationship and non-level playing field of the construction industry and so on. At the same time, however, given the inherent nature of disputes rendering the parties involved in an adversarial position, it would rather be difficult, if not practically impossible, to satisfy all the parties concerned in the dispute. Accordingly, in this study, it is also purported to address the demerits of such assertions by studying the situation from a more balanced perspective, in particular, in relation to the operation of such ADRs. In fact, most of such ADRs as stipulated by special acts, such as the Construction Industry Basic Act of Korea, in the form of mediation or conciliation, have failed to get support from the industry, and as a result, such ADRs are seldom used in practice. Tn contrast, the court system has been greatly improved by implementing a new concentrated review system and establishing several tribunals designed to specialize in the review and resolution of specific types of disputes, including the construction disputes. These improvements of the court system have been warmly received by the industry. Arbitration is another forum for settlement of construction disputes, which has grown and is expected to grow as the most effective ADR with the support from the construction industry. In this regard, the Korean Commercial Arbitration Board ('KCAB') has established a set of internal rules end procedures in operation to efficiently handle construction disputes. Considering the foregoing, this paper addresses the most important elements of the arbitration, i.e., arbitration agreement and arbitral award, primarily focusing on the domestic arbitrations before the KCAB. However, since this parer is prepared for presentation at the construction disputes seminar for the public audience, it is not intended for academic purposes, nor does it delve into any specific acadcmic issues. Likewise, although this paper addresses certain controversial issues by way of introduction, it mainly purports to facilitate the understanding of the general public, including the prospective arbitrators on the KCAB roster without the relevant legal education and background, concerning the importance of the integrity of the arbitration agreement and the arbitral award. In sum, what is purported in this study is simply to note that there are still many outstanding issues with mediation, conciliation and arbitration, as a matter of system, institutional operation or otherwise, for further study and consideration so as to enhance them as effective means for settlement of construction disputes, in replacement of or in conjunction with the court proceeding. For this purpose, it is essential for all the relevant parties, including lawyers, engineers, owners, contractors and social activists aiming to protect consumers' and subcontractors' interests, to conduct joint efforts to study the complicated nature of construction works and to develop effective means for examination and handling of the disputes of a technical nature, including the accumulation of the relevant industrial data. Based on the foregoing, the parties may be in a better position to select the appropriate dispute resolution mechanism, a court proceeding or in its stead, an effective ADR, considering the relevant factors of the subject construction works or the contract structure, such as the bargaining position of the parties, their financial status, confidentiality requirements, technical or commercial complexity of the case at hand, urgency for settlements, etc.

  • PDF

EU의 소비자보호 ODR 분쟁해결제도에 관한 연구 (A Study on the ODR Dispute Settlement System of Consumer Protection in EU)

  • 박종삼
    • 한국중재학회지:중재연구
    • /
    • 제28권4호
    • /
    • pp.89-110
    • /
    • 2018
  • The purposes of this study are as follows: First, this study reviews the Online Dispute Resolution (ODR) regulations of the EU to resolve disputes which can arise in international e-commerce in the future. Second, this study tries to seek out alternative solutions to dispute resolutions based on these regulations. Third, this study increases the efficiency of the transactions by proposing effective and satisfactory dispute resolution methods for international e-commerce. First, this study reviews the concept of cross-border e-commerce, generally explores ODR, and creates comparisons with Alternative Dispute Resolution (ADR). Subsequently, this study looks into domestic ODR system and analyzes the regulations of EU ODR. This study suggests the implications of the European ODR regulations in the conclusion. The EU ODR platform is considered greatly significant in that it has increased the possibility of settlements in small disputes by enhancing consumers' accessibility to ADR procedures. Therefore, this thesis proposes a method for Korean companies to resolve disputes that may arise in e-commerce with EU by using the ODR platform. As a result, it is expected to increase the competitiveness of Korean companies in the EU market. Both legislative trends related to the ODR of the EU and establishment of the EU ODR platform have significant implications for Korean businesses in Europe. This study is expected to be useful for our businesses in the EU in reviewing the applicability of the EU ODR regulations and the dispute settlement procedures through the EU ODR platform. In addition, this study is expected to prove useful in relation to consumer protection by enhancing consumers' accessibility to dispute settlement institutions in domestic electronic commerce.