• Title/Summary/Keyword: Arbitration Administrative Agency

Search Result 10, Processing Time 0.022 seconds

A study on the Possibility of patent arbitration (특허권 중재가능성에 관한 소고)

  • Yun, Sun-Hee;Lee, Heon-Hui
    • Journal of Arbitration Studies
    • /
    • v.22 no.1
    • /
    • pp.111-130
    • /
    • 2012
  • Judgment on the validity of patents on the subject of an arbitration does not. In other words, the occurrence of patents generated by the administrative action, and such administrative action by an authorized agency may be treated as legitimate until it is canceled. However, recent Supreme Court judgment on novelty and inventive step as well as judgments about the validity of the patent also made possible by the judiciary. This progress even in the mediation of an arbitral award which is premised on the validity of patents can be seen that possible. However, if the arbitration by an arbitrator if possible a certain portion of the limit exists. In other words, the effect of arbitration between the parties is valid. This patent is valid and invalid in arbitration even if the judgment relative to the effect ceases. In addition, the arbitration award and patent invalidation trial is in progress at the same time, if you consequently will reach a different conclusion. This can cause problems of double track. In addition, by extending the critical target recognition and enforcement in other countries can cause problems. Despite these problems, now about the validity of patents that it is possible intervention is necessary to discuss again.

  • PDF

An Legal-doctrine Investigation into the Application of ADR to Administrative Cases (행정사건에 대한 ADR의 적용에 관한 법이론적 고찰)

  • 이용우
    • Journal of Arbitration Studies
    • /
    • v.13 no.2
    • /
    • pp.459-488
    • /
    • 2004
  • General interest in the out-of-court dispute resolution system are mounting in Korea, and the spread of ADR(alternative dispute resolution) is the worldwide trend. In addition, it was confirmed that the resolution of disputes by ADR such as the decision based on arbitration made by the Prime Ministerial Administrative Decision Committee is no longer in exclusive possession of the civil case. The activation of ADR could lead to the smooth agreement between parties by getting away from the once-for-all mode of decision such as the dismissal of the application or the cancellation of disposal and the like in relation to administrative cases for the years. In consequence, it is anticipated that the administrative litigation that applicants have filed by not responding to the administrative decision would greatly reduce in the future. But, it would be urgent to provide for the legal ground of the ADR system through the revision of related laws to take root in our society because ADR has no legal binding power relating to the administrative case due to the absence of its legal grounds. The fundamental reason for having hesitated to introduce ADR in relation to the administrative case for the years is the protective interest of the third party as well as the public interest that would follow in case the agreement on the dispute resolution between parties brings the dispute to a termination in the domain of the public law. The disputes related to the contract based on the public law and the like that take on a judicial character as the administrative act have been settled within the province of ADR by applying the current laws such as the Civil Arbitration Law, Mediation Law, but their application to the administrative act of the administrative agency that takes on a character of the public law has been hesitated. But as discussed earlier, there are laws and regulations that has the obscure distinction between public and private laws. But there is no significant advantage in relation to the distinction between public and private laws. To supplement and cure these defects it is necessary to include the institutional arrangement for protection of the rights and benefits of the third party, for example the provision of the imposition of the binding power on the result of ADR between parties, in enacting its related law. It can be said that the right reorganization of the out-of-court dispute resolution system in relation to the administrative case corresponds with the ideology of public administration for cooperaton in the Administrative Law. It is high time to discuss within what realm the out-of-court dispute resolution system, alternative dispute resolution system, can be accepted and what binding power is imposed on its result, not whether it is entirely introduced into the administrative case. It is thought that the current Civil Mediation Law or Arbitration Law provides the possibility of applying arbitration or mediation only to the civil case, thereby opening the possibility of arbitration in the field of the intellectual property right law. For instance, the act of the state is not required in establishing the rights related to the secret of business or copyrights. Nevertheless, the disputes arising from or in connection with the intellectual property rights law is seen as the administrative case, and they are excluded from the object of arbitration or mediation, which is thought to be improper. This is not an argument for unconditionally importing ADR into the resolution of administrative cases. Most of the Korean people are aware that the administrative litigation system is of paramount importance as the legal relief for administrative cases. Seeing that there is an independent administrative decision system based on the Administrative Decision Law other than administrative litigation in relation to administrative cases, the first and foremost task is the necessity for the shift in thinking of people, followed by consideration of the plan for relief of the rights through the improvement of the administrative decision system. Then, it is necessary to formulate the plan for the formal introduction and activation of ADR. In this process, energetic efforts should be devoted to introducing diverse forms of ADR procedures such as settlement conference, case evaluation, mini-trial, summary jury trial, early neutral evaluation adopted in the US as the method of dispute resolution other than compromise, conciliation, arbitration and mediation

  • PDF

A Study on Comparison of Commercial Arbitration System in Korea and U.S.A. (한국과 미국의 상사중재제도에 관한 비교연구)

  • 이강빈
    • Journal of Arbitration Studies
    • /
    • v.12 no.1
    • /
    • 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.

  • PDF

Review and Improvement of Alternative Medical Dispute Resolution Through Case Studies (사례연구를 통한 소송이외의 의료분쟁 해결방안의 검토와 개선방안)

  • Kang, Eui Sung;Kim, Jang Mook;Sung, Dong Hyo;Mok, Nam Hee
    • Korea Journal of Hospital Management
    • /
    • v.18 no.3
    • /
    • pp.106-125
    • /
    • 2013
  • Medical litigation, as a method of resolving medical disputes, has been a huge burden on both the patient and medical institution as it is both costly and time-consuming. The Korea Medical Dispute Mediation and Arbitration Agency has created a dispute mediation process as a method of alternative dispute resolution(ADR). Being in its early stage of implementation, there are still areas requiring improvement as some functions overlap with the Korea Consumer Agency's damage redress and mediation process. This study examines the problems of existing practices in medical litigation while reviewing the mediation process of the two agencies from legal/administrative aspects, and provides an in-depth analysis of the situation through case studies and interviews. While the Korea Medical Dispute Mediation and Arbitration Agency offers many advantages in resolving medical disputes, there must be a distinct division of roles and mutual cooperation with the Korea Consumer Agency. Considering the increasing amount of compensation in medical disputes, medical professionals are being requested to carry medical malpractice insurance. However, this has yet to become a general trend in the medical field despite the growing social demand. As such, the coverage of medical malpractice insurance should be expanded to prevent medical accidents from escalating into medical disputes, thus acting as a social safety net. This study seeks to examine the methods of medical dispute resolution and to allow institutional provisions to reduce the social costs arising from such disputes.

  • PDF

The Possibility of Arbitration of Patent In Japan -focusing on Kilby case(Japanese Patent Act Article 104-3)- (일본에서 특허의 유효성에 대한 중재가능성 -킬비 판결(일본 특허법 제104조의3)을 중심으로-)

  • Yun, Sun-Hee
    • Journal of Arbitration Studies
    • /
    • v.21 no.1
    • /
    • pp.57-72
    • /
    • 2011
  • According to Japanese Patent Act, the Japanese Patent Office, administrative organization, was authorized to decide validation of patent. However, Supreme Court of Japan held that a court is able to decide the invalidation of patent in 11th April, 2000, which caused the reform of Japanese Patent Act in June 2004. Reformed Patent Act established the article 104-3 and makes it for a court to decide the patentability where there are grounds for a patent invalidation. Through this amendment to the Patent Act, the legislative system to decide the patent validation has been reorganized and furthermore alleged infringer is allowed to argue against the patent validation by making use of infringement litigation procedure through defenses against patent invalidation as well as invalidation trial procedure for to file a request for a trial for patent invalidation to the Japanese Patent Office. That is to say, the article 104-3 was established in the Japanese Patent Act in the wake of Kilby, and thus a court, which is judicial authority, not administrative disposition agency is also able to decide the patent validation. Thus this article discuss how a court, the authority of which only patent infringement cases fell under, has been authorized to arbitrate cases about the patent validation and the decision of the patent validation in a court.

  • PDF

A Study on the Organization and Operation of the Inter-Korean Commercial Arbitration Committee in Gaeseong Complex (개성공단에서의 남북상사중재위원회 구성.운영에 관한 연구)

  • Kim, Kwang-Soo
    • Journal of Arbitration Studies
    • /
    • v.24 no.2
    • /
    • pp.3-31
    • /
    • 2014
  • As all aspects of international activity have kept growing in good transaction, transnational investments, joint ventures, and the licensing of intellectual property, it is inevitable for disputes to increase across national frontiers. International disputes can be settled by arbitration and ADR. In the situation presented in the paper, any dispute shall be finalized by arbitration and conciliation in the Gaeseong Industrial Complex. Inter-Korean Commercial Arbitration in the Gaeseong Industrial Complex has become the principal method of resolving disputes in trade, commerce, and investment in accordance with the "Agreement on South-North Commercial Dispute Settlement Procedures," "Agreement on Organization and Operation of Inter-Korean Commercial Arbitration Committee," and the Annexed Agreement on "Organization and Operation of Inter-Korean Commercial Arbitration Committee" (2013). But the follow-up measures of the said agreements have not been fulfilled. Some prerequisite measures of the Inter-Korean commercial arbitration must be satisfied. In order to proceed with arbitration and conciliation in the Gaeseong Industrial Complex, we need to ask the following: Does the status of an arbitrational matter? Should an agreement to arbitrate contain a choice of law clause? Should one provide for one arbitrator or three? How should the arbitrators be selected? What is the relation between party-appointed arbitrators and the presiding arbitrator (neutral arbitrator)? Do arbitrators compromise more than the litigation? Can conciliation be combined with arbitration? To execute the enactment of arbitration regulations, the contents of the Arbitration Rules of the Korean Commercial Arbitration Board (South) and the Korea International Trade Arbitration Committee (North), together with the Korean Arbitration Act and External Arbitration Act of North Korea and the UNCITRAL Model Arbitration Law and UNCITRAL l Arbitration Rules are reflected in the Rules. There are many aspects of the Inter-Korean Commercial Arbitration. It is essential to understand key elements; namely, the arbitration agreement, appointment of arbitrator, arbitral proceeding and arbitral award, and enforcement and setting aside of arbitral award. This research deals with five chapters. Chapter 1 provides the introduction. Chapter 2 deals with trade volume between South and North Korea and the kinds of dispute in Gaeseong. Chapter 3 addresses contents and follow-up measures of the agreement on the "South-North Commercial Dispute Settlement Procedures," "Agreement on Organization and Operation of Inter-Korean Commercial Arbitration Committee," and the Annexed Agreement on "Organization and Operation of Inter-Korean Commercial Arbitration Committee" (2013). Chapter 4 features the problems and tasks of the pertinent agreements. Chapter 5 gives the conclusion. Enabling parties to find an amicable solution to the dispute in the Gaeseong Industrial Complex can lead to a useful and appropriate framework either through direct negotiation or by resorting to conciliation or mediation in accordance with pertinent agreements and follow-up measures contained in the agreements.

  • PDF

A Study on the Introduction of Food Safety Damage Relief System (식품안전 피해구제제도의 도입방안에 관한 연구)

  • Lee, Byung-Jun
    • Journal of Arbitration Studies
    • /
    • v.27 no.4
    • /
    • pp.199-222
    • /
    • 2017
  • Currently, many punitive damages (or statutory damages) and class action laws are discussed in relation to the consumer damage relief system. It is in the background of the argument that the introduction of such a victim relief system will solve many small and large consumer damages. There are many cases in which the punitive damages compensation or the class action system are introduced in relation to the food safety damage naturally. Although the introduction of such a system can clearly help the consumer to relieve large-scale damage, it can not solve all the problems at once because the company can reject the system despite the introduction of such a system. In particular, class action lawsuits should have the same type of damage, but most of the damage caused by food safety is accompanied by physical harm, resulting in various complications such as the physical characteristics of the victim, the health environment. The class action system may not provide a solution in that the content and type of the damage may be different. In this regard, this study aims to investigate the introduction of the food safety damage relief system through the introduction of an administrative dispute settlement system by an administrative agency that occupies an absolute position in the existing consumer protection from this point of view. In reality, the Food and Drug Administration, which is the largest among government agencies related to food, operates a passive attitude consumer protection system such as function like guidance, supervision and surveillance. And it is necessary to make a complementary proposal. In the current law, there is only a small part of the consumer protection work that is positively legal, and even after the damage is scientifically identified, it is not possible to present the solution to the damage suffered by the consumer through legislation. This is a fact that has been raised. In this paper, we propose a reasonable and rapid disaster relief procedure through a separate mechanism within the administrative agency, which is the administration agency, that the dispute settlement procedure due to food safety damage is insufficient by solving the case through the court through counseling, dispute adjustment and civil proceedings. In order to solve the problem of food insecurity and the food industry, various ways of rational solution of the problem were considered. The possibility of (1) Establishment of a food safety dispute resolution committee; (2) Establishment of a food safety disaster relief committee; and (3) Establishment of a food safety disaster relief committee was discussed. In addition, a plan for the creation of a food damage compensation fund was also proposed.

The Problems and Alternatives of The Subrogation Payment System for Damage (의료분쟁조정법상 손해배상금 대불제도의 문제점과 개선방안)

  • Lee, Baek-Hyu
    • The Korean Society of Law and Medicine
    • /
    • v.12 no.2
    • /
    • pp.163-187
    • /
    • 2011
  • On March 11, 2011, the Korea National Assembly finally passed the bill on the Damage Relief on the Medical Malpractice and Mediation for Medical Dispute. One of the features of this Act is including "The Subrogation Payment System for Damage (abbreviated SPSD)". This System is that 'Korean Medical Dispute Mediation-Arbitration Board' pays the damages, instead of the health care provider, for the patient who isn't paid damages by the health care provider despite of the Mediation or ruling. The purpose of this study is to search the problems and make improvement on SPSD. This System was introduced extreamly to the patients in order to induce them to the mediation. However,there remains several problems. In this articles, I have examined thoroughly the legal issues on SPSD. There are legal issues about the methods and ratio of the financial burden. In this connection, wide discretionary authority has been granted to administrative agencies specifically. On this account, this System clearly contains elements of a violation against the Constitutional Law. Moreover, this System can be broadly applied to the case of court ruling or the Korea Consumer Agency's mediation. But these measures go against the aim of legislation that the medical dispute can be resolved through the mediation or arbitration by this Act. In the end, these problems must be revised through the additional discussion.

  • PDF

Legal Aspects on the Procedures and Settlement of the Disputes arising from the WTO Preshipment Inspection (WTO 선적전검사제도에 따른 실태와 분쟁조정의 해결에 관한 고찰)

  • Seo, Jeong-Il
    • Journal of Arbitration Studies
    • /
    • v.8 no.1
    • /
    • pp.293-322
    • /
    • 1998
  • General Administrative Procedures of the Preshipment Inspection 1. Initial notification Preshipment Inspection is initiated by Agency when it receives notice either from the importing country, or the seller, that an export needs to be imspected 1.1 Notice from the importing country 1.2 Notice from the seller 2. Preliminary price verification After receipt of initial notification, Agency undertakes, Where possible, a preliminary price verification, based upon the Inspection Order and other contractual documents received. 3. Customs classification When required by the Government of the importing country. Agency forms an opinion of the Customs Classification Code based upon the Customs Tariff Book and Rules of Classification of the country of importation. The Customs Classification Code determines the tariff rate on the basis of which the importer will be required to pay import duties. 4. Import eligibility 5. Arrangements for physical inspection 5.1 Inspection request from seller 5.2 Place of inspection 5.3 Date of inspection 5.4 Physical inspection procedures 6. Physical inspection results When the physical inspection is completed, the inspector submits his report to the Agency office and the result of inspection will be communicated to the seller and, where applicable, the place of inspection. The result will state: satisfactory or conditional of unsatisfactory. The seller is welcome to present his views in writting to Agency in the event there is any query regarding the issuance of a conditional of unsatisfactory inspection result. 6.1 Satisfactory 6.2 Conditional 6.3 Unsatisfactory 7. Shipment of the goods The seller is advised to check with Agency prior to shipment if the physical inspection result has not been received or there are any doubts concerning whether a Clean Report of Findings will be issued. 8. Final price verification and classification Based on the results of physical inspection and appropriate final documents, Agency finalises the price verification and the Agency opinion of Customs classification code. When the preliminary price verification has not resulted in any unresolved questions and the inspection result and other documents received are consistent with the preliminary documentation, Agency will not normally require any additional information. The main exception would be if the terms of sale require reference to prices at the date of shipment. 9. The Report of Findings 9.1 Types of Reports of Findings - Clean Reports of Findings(CRF) The Agency will issue a Clean Reports of Findings(CRF), or equivalent document, normally within two working days after receipt of the necessary correct final documents and a satisfactory result in all aspects of the inspection. - Discrepancy Report.

  • PDF

A Study on the Harmonization of a Mediation System through a FTA among China, Japan, and Korea - Focused on the Patent Mediation - (한중일 3국의 중재제도의 조화를 위한 소고 - 특허권 중재를 중심으로 -)

  • Lee, Heon-Hui
    • Journal of Arbitration Studies
    • /
    • v.23 no.1
    • /
    • pp.153-175
    • /
    • 2013
  • The issue of patent validity becomes a subject of dispute under the FTA and there is a definite difference of opinion between China, Japan, and Korea. In other words, the validity of a judgment on the patent was exclusively under the jurisdiction of the administrative agency at a particular patent office. Thus, the issue arises where there is a potential judgment on patent validity. In this case, the Supreme Court rather than the patent office can offer a judgment from a judicial institution and can make a judgment in the case of a medication. In China, however, the lowest possibility of judgment on patent validity is predicted to occur in judicial institutions. Such a judgment is recognized as the Grand Bench Decision in Korea, and the court can judge the patent validation rather than the patent office. That is just the case in the Kilby case-it is invalid for reasons obvious in Japan. Therefore, there is a substantial difference between the three countries. Especially in Japan, where after the Kilby case, they revised the patent law in 2004 to introduce Article 104-3, placing the judgment of patent validity in the court, even if the "Apparentness"is not requisite. Per this law, infringers can argue for patent invalidity not only the judgment of the patent invalidation but also the infringement lawsuit. From the point of view of Japan, Korea became the judgment of trademark validation by extension and obvious cases can become directly to judge through the Supreme Court about the right that needs to examinations and registrations. In terms of the mediation, it also provides a clue about the judgment of intellectual property validation and expands the scope of the mediation in the future. From now on, in order to have active mediation procedures in the three countries, China, Japan, and Korea would need to unify regulations and application scopes for mediation in the FTA negotiation and to look forward to achieve a vigorous mediation approach.

  • PDF