• 한국중재학회지:중재연구
• /
• 제17권3호
• /
• pp.145-167
• /
• 2007

Digital goods are defined as intangible and non-physical goods, composed of a combination of digital signals, electronically represented as 0 and 1. They are also called as digital products, electronic transmissions, information goods, digital contents, computer information, etc. Digital goods are now traded both domestically and internationally as well as on-line and off-line. Korean government revised the Basic Law on Foreign Trade to include digital goods and services as the scope of foreign trade in 2001. Trade volume of digital goods are increasing in Korea. The supply chains of digital goods from producing the components to selling globally to consumers are different from conventional physical goods. Mostly, digital goods are traded on the license basis rather than ownership contract. End User License Agreements(EULAs), such as shrink-wrap, click- wrap, or browser-wrap licenses are very popular in online transactions. Unlike conventional physical goods. the breach of license contract is closely linked with the infringement of intellectual property rights. Digitalized intellectual property is easy to copy and transmit in the cyber space. In cases of legal disputes from the breach of license contract, commercial arbitration or on-line alternative dispute resolutions(ADRs) are regarded as better approach to solve them rather than court sues. For promoting more secure and reliable international trade of digital goods. arbitration clauses should be included in most of license contracts.

• 한국중재학회지:중재연구
• /
• 제12권1호
• /
• pp.271-321
• /
• 2002

Every year, many million of business transactions take place. Ocassionally, disagreements develop over these business transactions. Many of these disputes are resolved by mediation, arbitration and out-of-court settlement options. The American Arbitration Association(AAA) helps resolve a wide range of disputes through mediation, arbitration, elections and other out-of-court settlement procedures. The AAA offers a broad range of dispute resolution services to business executives, attorneys, individuals, trade associations, unions, management, consumers, families, communities, and all level of governments. The 198,491 cases composed of the 194,303 arbitration cases and the 4,188 mediation cases, were filed with the AAA in 2000. These case filings represent a full range of matters, including commercial finance, construction, labor and employment, environmental, health care, insurance, real state, securities, and technology disputes. The Korean Commercial Arbitration Board (KCAB) does more than render arbitration services. It helps facilitate settlements and guarantee implementation thereof between trading partners at home and abroad involving disputes related to such areas as the sale of commodities, construction, joint venture agreements, technical assistance, agency agreements, and maritime transport. The 643 cases composed of the the 197 arbitration cases and the 446 mediation cases, were filed with the KCAB in 2001. There are some differences between the AAA and the KCAB regarding the number and the area of mediation and arbitration case filings, the breath of service offerings, the scope of alternative dispute resolution, and the education and training. In order to apply to the proceedings of the commercial mediation and arbitration, the AAA has the Commercial Mediation Rules, the Commercial Arbitration Rules, the Expedited Procedures, the Optional Procedures for Large, Complex Commerical Dispute, and the Optional Rules for Emergency Measures of Protection as amended and effective on September 1, 2000. In order to apply to the proceedings of commercial arbitration, the KCAB has the Arbitration Rules as amended by the Supreme Court on April 27, 2000, which have been changed to incorporate the revisions of the Arbitration Act that went into effect on December 31, 1999. There are some differences between the AAA's commercial Arbitration Rules and the KCAB's Arbitration Rules regarding the clauses of jurisdiction and administrative conference, number of arbitrators, communication with arbitrator, vacancies, preliminary hearing, exchange of information, oaths, evidence by affidavit and posthearing filing of documents or others, interim measures, serving of notice, form of award, scope of award, delivery of award to parties, modification of award, release of liability, administrative fees, neutral arbitrator's compensation, and expedited procedures. In conclusion, for the vitalization of KCAB and its ADR system, the following measures should be taken : the effective case management, the development of on0-line ADR, the establishment of ADR system of electronic commerce disputes, and the variety of dispute resolution rules in each expert field.

• 무역학회지
• /
• 제43권5호
• /
• pp.139-158
• /
• 2018

오늘날의 무역구조는 이전보다 훨씬 다변화 되었고, 각국의 수출입액이 늘어남에 따라 무역분쟁의 내용도 훨씬 복잡해지고 있는 것은 물론 분쟁의 수 또한 증가하고 있다. 이러한 분쟁을 해결하는 수단으로서 소송과 중재를 비롯한 협상, 알선, 조정 등이 활용되고 있지만 소송이나 중재에 의한 해결방법은 관할권, 거리상의 제약, 비용과 절차의 복잡성 등 그 어려움이 따른다. 또한 협상이나 알선에 의할 경우, 효력이나 제도상의 미비점 등 그 한계성을 드러내면서 이들을 대체할 수 있는 방법이 요구되어 왔다. 이에 ADR의 한 형태로 등장한 조정은 조정인이 분쟁당사자 사이에서 중립인의 역할을 하면서 당사자가 자주적으로 사건을 해결하도록 돕는 제도이다. 조정은 비밀보장에 의한 신뢰구축, 준거법과 재판관할권의 비적용, 절차의 간이성, 미래지향적인 결과도출이라는 장점이 중점적으로 부각되고 있어 미국, 일본을 비롯한 중국 등에서는 일찍이 무역분쟁의 해결수단으로 이용되고 있다. 하지만 우리나라에서는 아직 조정의 유용성이 널리 알려지지 못하였고, 그 이용 또한 저조한 상태이다. 본고는 조정이 어떠한 제도인지를 설명하는 것과 함께 무역분쟁의 해결수단으로서 조정이 지닌 유용성을 밝힘으로써 향후 분쟁발생 시 본 제도의 적극적 이용을 도모하고자 하는 취지에서 연구를 진행하였다.

• 한국중재학회지:중재연구
• /
• 제19권3호
• /
• pp.25-42
• /
• 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
• /
• 제32권4호
• /
• pp.143-164
• /
• 2022

It is not an exaggeration to say that our society is already one of disputes. Since circa 2010, the average number of lawsuits filed every year is upwards of six million cases, and resolving disputes through trials is already fully saturated. The functional roles of the court reflect that there are many lacking areas such as systems, tools, and procedures related to social integration. In addition, ADR, which is carried out in advanced capitalist nations to supplement the judicial functions, has also been implemented in our society for the past 60 years. However, for the reason why the usage rate of ADR did not increase for legal consumers, we cannot overlook government activities that did not make sufficient promotions related to the lack of awareness. In Korea, ADR is mainly composed of government-initiated types, and in particular, there is no ADR framework act that can play an integrated role. Furthermore, for the conciliation system of the court, over 80%of conciliation are conducted focusing on court of lawsuits, and legal basis and procedures between institutes are different for administrative ADR, and communication does not go smoothly, thus making it inefficient. Such examples cannot avoid being a background for criticism when considering the fundamental ideologies and beliefs of ADR. The Vinaya Pitaka of sangha related to ADR is a separate method for operating communities. This is the BDR (Buddhist Dispute Resolution) method that encompasses personal ethics, organizational ethics, harmony through various community gatherings, and adhikaranasamatha on the four issues that could occur in legal review procedures. This has become the sufficient background for succession and development for parisa sangha and gana sangha among individuals.

• 한국건설관리학회:학술대회논문집
• /
• 한국건설관리학회 2004년도 제5회 정기학술발표대회 논문집
• /
• pp.629-633
• /
• 2004

근래의 국내 건설 산업은 IMF 이후로 악화된 수주여건과 발주자와 시공자의 입장 차이 등으로 인한 클레임과 분쟁이 늘어나고 있다. 이에 본 연구는 이들의 원활한 해결을 위한 방안과 전략 연구의 기초연구로 수행되었으며, 이를 위한 방법론으로 해외의 FIDIC, AIA, ECC 등의 계약문서와 국내 공사계약 일반조건과 서울특별시 공사계약 특수조건의 클레임과 분쟁관련 조항에 대한 벤치마킹을 수행하였다. 연구 결과, 국내의 계약 문건 상의 클레임과 분쟁관린 조항이 해외의 사례들과 비교해 클레임 및 분쟁의 정의, 제기와 해결절차 등의 명확한 제시 부분이 부족한 것으로 나타나 개선이 필요한 것으로 나타났다.

• 한국중재학회지:중재연구
• /
• 제26권2호
• /
• pp.67-89
• /
• 2016

An ADR arbitration system has a necessary value in the sports industry for settlement of disputes. Sports disputes should be resolved independently by enacting internal regulations within the basic principles of national law rather than treated as a civil action. If the dispute is not fair and transparent, it may cause distrust. Because an arbitration system has values such as speed, flexibility of economic decisions, professionalism of arbitrator and confidentiality of arbitration-related information, the efficiency of the arbitration system for conflict resolution has emerged recently. We have to assign sports experts to reactivate sports arbitration commission committees which existed from 2006 to 2009 in Korea. Many countries, such as the UK, USA, Canada, New Zealand, Hungary, the Netherlands, Poland, Germany, and Japan, which attain advancement of sports and the International Court of Arbitration establish and run their own sports arbitration agencies. However, Korea disbanded its sports arbitration commission committee for political and economic reasons. In 2012, after their disbanding, athlete Kim Yeon-kyoung came into conflict with Heungkuk Life over terms of free agent acquisition and international transfer certification. Finally they were able to settle those political conflicts. However if there had been related laws in Korea, they could have resolved those problems easily without international disputes. Practically, it would have been almost impossible for Kim Yeon-kyoung to win the dispute. But her problem became an issue after the London Olympics, so she could win. Although it is well for her to take an active role on the international stage, it left much to be desired on account of the intervention of political circles in order to resolve the conflict. If the sports arbitration commission committee in Korea had still been active, it could have come to a peaceful settlement domestically. Therefore we have to reestablish a Korean sports arbitration committee centered around experts of sports law.

• 한국중재학회지:중재연구
• /
• 제11권1호
• /
• pp.37-73
• /
• 2001

I. Preface It is widely understood that the 21st century, with the development of information technology(IT) and the spread of networks, will be called a digital economy where information-driven business will be norm rather than the smokestack economy of the past. And the drastically changed world market is expected to generate even more commercial transactions across the world creating large numbers of legal disputes. Therefore, each country will attempt to develop ADR(Alternative Dispute Resolution) as an alternative to judicial proceedings in order to cope with not only the ever-increasing international commercial claims but also domestic legal disputes. Taking this reality into account, this study begins with an exploration of mediation procedure as a way of helping the court faced with its overwhelming numbers of lawsuits. And also this study makes a theoretical comparison between ADR and mediation procedure, analyzing critical factors affecting the mediation agreement. Furthermore, it is designed to find ways for disputing parties to make better use of mediation and ensure fairness to the parties involved. It tries to enhance mediators' understanding of critical factors influencing the mediation agreement and their ability to handle commercial disputes in a more efficient way. To make an empirical analysis of these factors, bibliographic research and questionnaire were used. This analysis will fill the gap between the theory and reality, and make possible the structured research on the factors. Therefore, this study sets the model by which we can evaluate how the three critical factors (parties' inclination, mediators' characteristics, institutional features) affect the parties reaching a mediation agreement. Based on this analysis, a theoretical hypothesis was built and a questionnaire was made and distributed. During the course of this work, SPSSWIN 10.0 program was applied.

• 한국중재학회지:중재연구
• /
• 제21권1호
• /
• pp.87-107
• /
• 2011

There are two methods to resolve conflicts related to constructions which are through lawsuits and ADR (Alternative Dispute Resolution) just like any other conflicts. Along with the special characteristics pertaining to the conflicts related to constructions, the advantages that ADR is in possession of such as its cost, duration and professionalism, resolving conflicts through ADR has been considered to be more logical than any other options recently. In Korea's case at present, the resolution of conflicts regarding constructions through ADR is mostly dependent on administrative mediation or through arbitration. However, in the case of the administrative mediation, its usage rate is very low due to problems caused by problems in its running and effectiveness. In the case of arbitration, the services of the Korean Commercial Arbitration Board is comparatively used more but because of the fact that arbitration relies on a single trial system and the fact that its executive powers while having the same effectiveness as the final ruling does not get acknowledged leads to the phenomena of avoiding its usage. In addition, in relation to the selective arbitration clause, the problem of effectiveness of the arbitrative agreement is becoming a hindrance to the activation and promotion of the arbitration process. Furthermore, in the case where the ordering body is the government, the public servant involved in the case avoiding the arbitration process because of concerns of being penalized by the internal and external audit within the institution is becoming a problem as well. These problems are not only limited to conflicts regarding constructions and there needs to be actions taken to promote the activation of ADR by enacting a basic law. The more important issue at hand however is offering a resolution measure that would be the most appropriate for users and this could probably be done only through actions such as implementing the American partnering system or the dispute adjudication board system so that they can supervise the resolution of conflicts through mediation, arbitration, and assistance as well as offering consultations regarding conflicts related to constructions.

• 한국중재학회지:중재연구
• /
• 제30권1호
• /
• pp.87-111
• /
• 2020

Smart contracts are implemented by blockchain technology, which stores the terms of the contracts of both parties on the blockchain. In the event of an international dispute over smart contracts and blockchains, no special solution has been proposed, such as the enactment of the International Unification Act. The blockchain platform which operates smart contracts is decentralized and operates through distributed nodes around the world without central servers, making it difficult to establish jurisdiction and governing laws. As an alternative to traditional dispute-solving methods, a new mediation model-smart arbitration-is being attempted. The arbitration process is likely to be a preferred means of resolving disputes over smart contracts in practice. There are many problems, such as the fairness of the arbitration center on the selection and judgment of arbitrators, the question of securing reliability, the question of the validity of the arbitration agreement, and how much the court can be involved in the case. Preparations at the national level, such as fostering blockchains and smart contract experts, and overhauling the legal system, are needed.