• 무역학회지
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• 제43권4호
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• pp.89-110
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• 2018

본 연구는 신용장거래에서 은행의 독립지급의무 및 이 의무에 대한 예외적인 취급원칙과 방향에 대한 문제를 소재로 취급하였다. 독립원칙과 독립원칙에 대한 예외문제는 신용장의 본질에 관계되지만 국가마다 이러한 문제를 취급하는 태도에 차이가 존재한다. 본 연구에서는 영국에서의 태도를 분석하기 위해 독립원칙과 예외문제를 취급한 판례 중에서 지도적인 판례로 인정되는 사례를 중심으로 하여 독립원칙과 예외문제를 취급하는 영국의 입장을 분석하였다. 영국법원은 가능한 한 상인들 간에 형성되어 온 상관습을 존중하려는 입장을 취해 왔으며 독립원칙의 실무적인 적용에 있어서도 이러한 입장을 반영하여 독립원칙의 중요성을 강조하면서도 실질적으로는 개개의 사안마다 당사자의 형평을 고려하여 예외문제를 취급하여 왔다. 그러나 미국의 Sztejn 사건을 계기로 하여 영국에서도 독립원칙의 적용에 대한 태도의 변화를 보여 신용장거래에서의 사기뿐만이 아니라 기초계약에서의 사기도 독립지급의무에 대한 예외사유로서 인정하기 시작하였다. 그렇지만 독립원칙에 대한 예외의 운영방식에 따라 신용장제도의 존재의의가 상실될 우려가 있고 또한 발행의뢰인에 의해서 예외적용을 남용할 가능성도 있다는 문제점들을 감안하여 영국은 비록 사기적인 요소가 존재하지만 수익자 자신이 선의의 입장에 있는 경우에는 수익자를 보호하는 입장을 채택함으로써 예외인정과 예외의 남용문제 간의 조정을 도모하고 있다.

• 한국중재학회지:중재연구
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• 제29권2호
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• pp.89-105
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• 2019

This paper reviews and analyzes the U.S. cases and statutes on the issue of party autonomy in arbitration agreement. Arbitration agreement has been interpreted somewhat differently from general contracts because its legal characteristics are not purely contractual by nature. For example, some legal scholars insist that an arbitration contract is more about an agreement on a process of dispute resolution than a creation of rights and obligations to avoid litigation. Party autonomy was discussed in diverse legal perspectives including contract of adhesion, VKI principle, and separability of arbitration clause. These three legal perspectives are discussed to set the legal relationship between party autonomy and protection of consumers in consumer arbitration. In addition, it was discussed how legal defects in the formation of an arbitration contract can influence the party autonomy. The legal defects that were discussed to analyze the relationship between arbitration agreement and party autonomy included misrepresentation, fraud, mistake, duress, and undue influence.

• 한국중재학회지:중재연구
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• 제15권1호
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• pp.147-178
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• 2005

Arbitration agreement is an agreement by the parties to submit to arbitration all or certain dispute which have arisen or which may arise between them. Arbitration agreement is an important factor to judge the existence of the mutual arbitration agreement and it should be the object of examination before anything else to judge the existence of the mutual arbitration agreement. Recently the Supreme Court seemed to make negative position about validity of selective arbitration agreement. However theoretically and scientifically selective arbitration agreement is a valid arbitration agreement. Examine selective arbitration agreement throughly according to the autonomy of the parties rules, wide jurisdiction rules of interpretation, principle of kompetenz-kompetenz, and moses cone presumption rule of interpretation, selective arbitration agreement is a valid arbitration agreement. Also analyze precedents in accordance with validity of selective from all angles which are voluntary agreement of the parties, agreement in writing, principle of private autonomy, comparative study of domestic and foreign precedents and mutual relation of arbitration and trial, selective arbitration agreement based on principle of private by the parties is considered a valid arbitration agreement. Courts should actively accept selective arbitration agreement as a valid arbitration agreement to make foreign companies prefer arbitration in Korea and in oder for arbitration to be widely used in disputes.

• 한국중재학회지:중재연구
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• 제19권2호
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• pp.3-26
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• 2009

This paper is to research on the role of party autonomy in the decision of applicable law for the arbitral proceeding, arbitral award and arbitration agreement, in the decision of the place of arbitration, in the composition of arbitration tribunal, and the choice of arbitral proceedings. The principle of party autonomy is fundamental to arbitration in general and to international arbitration in particular. Generally the tenn of party autonomy is used as the autonomy of the parties to decide all aspects of an arbitration procedure subject only to certain limitations of mandatory law. Party autonomy permits the parties to a commercial arbitration to choose the laws and make the rules which govern the arbitral proceedings. Party autonomy allows the parties freedom to choose the applicable laws for the arbitral proceeding and the place of arbitration. Party autonomy is recognized in relation to the choice of law for the merits of the dispute as well as for the arbitration agreement and the arbitration procedure. On the basis of the recognition of party autonomy in international treaties, national legislation and court decisions, arbitral practice has generally accepted and enforced party autonomy both regarding the procedure and the applicable substantive law. All modern institutional rules of arbitration follow that line. Today it is recognized by national legislators all over the world to the effect that the jurisdiction of national courts can be excluded by arbitration agreement and that the parties may choose the law applicable to arbitral proceedings. Limits on party autonomy are imposed by mandatory provisions of international or national law or of institutional arbitration rules regarding the procedure. Mandatory laws at the place of the arbitration or under any procedural law chosen by the parties may restrict party autonomy. These mandatory laws usually take the form of public policy considerations in the arbitration. Limitations on party autonomy have been reduced more and more, and the trend of modern national as well as international legislation on arbitration leans clearly in the direction of a maximum of party autonomy.

• 간호행정학회지
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• 제4권2호
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• pp.475-487
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• 1998

This is a study to search for the ethical basis for valid informed consent of organ donors. It is an admirable action that a person give his own body part or organ as a gift to another person. The organ for transplantation can be removed only when the donor consents voluntarily to donation. It is recently proposed as the need for organ transplantation is increased that organs can be harvested although the consent of deceased cannot be obtained. This may raise many moral issues because human beings all have an unalienable right to control their own bodies. The principle of autonomy is usually regarded as an ethical basis for informed consent. However, some people criticize that the principle of autonomy requires a person and his decision to be autonomous (but there are many patients who aren't autonomous due to their confusion or unconscious condition in a clinical situation). or this principle can foster indifference to patients needing help: thus respect for principles of care and beneficence is necessary. When we consider the complexity of making a decision about organ donation. the principle of autonomy should be replaced by the principle of respect for individual autonomy. as expressed by Childress (1990). This principle requires the care givers to respect the client's individual decisions. The elements of informed consent are threshold elements: competence to understand and decide. voluntariness in deciding: information elements: disclosure of material information. recommendation of a plan. understanding of disclosure and recommendation: and consent elements: decision in favor of a plan. authorization of the chosen plan. In cases of living donors. the elements of competence and voluntariness are more important than the others. So only an adult can give a recipient his own body part. but it should be forbidden to harvest from minors or protected adults (i.e. developmentally disabled person However. when organs are removed from a cadaver donor. we ought to respect the donor's decision. So we ought to try to seek donor cards or any documents expressing the donor's opinion about organ transplant. All health care givers ought to disclose donor information about organ transplantation clearly enough for the donor to understand it and to be able to weigh the harms and benefits. We are going to propose 'the subjective standard' as the ethical standard of disclosure. This standard will assure that patients have enough information to be able to decide autonomously from their own position. Care givers have to consider the method of disclosure because donors can be influenced by it positively or negatively, Establishment of the Hospital Committee is recommended. because medical professionals will have a chance to discuss the procedure of decision and the validity of harvesting a organ from a person.

• 한국중재학회지:중재연구
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• 제17권1호
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• pp.117-136
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• 2007

Currently, it is the general trend that the party's autonomy principle is applicable in determining the applicable law for the international private law and the international commercial arbitration. The purpose of this article is to make research on the party's autonomy principle for the international commercial arbitral awards. For this purpose ist to analyse regal issue the applicability of the lex mercatoria and the possibility of $d\acute{e}pe\c{c}age$ relating to the party autonomy. In this Article ist dealt with Art. 29 para. 1 of the Korean Arbitration Act in comparison with Art. 28 para. 1 UNCITRAL Model Law and Art. 1051 para. 1 of the German Code of Civil Procedure. The Art. 28 para. 1 UNCITRAL Model Law and Art. 1051 para. 1 of the German Code of Civil Procedure provides equally. "The arbitral tribunal shall decide the dispute in accordence with such 'rules of law' as chosen by the parties as applicable to the substance of the dispute. Any designation of the law or legal system of a given State shall be construed, unless otherwise expressed, as directly referring to the substantive law of that State and not to its conflict of laws rules." The term 'rule of law' used to describe the applicability of the lex mercatoria and the possibility $d\acute{e}pe\c{c}age$. Unlike Art. 28 para. 1 UNCITRAL Model Law and Art. 1051 para.1 of the German Code of Civil Procedure. Act, Art. 29(1) of the Korean Arbitration Act provides that the arbitral tribunal shall decide the dispute in accordence with the 'law' chosen by the parties as applicable to the substance of the dispute. However the majority view in Korea takes the position that the term 'law' should be interpreted broadly so as to encompass 'rules of law' at UNCITRAL Model Law and the German Code of Civil Procedure.

• 농촌지도와개발
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• 제4권1호
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• pp.29-40
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• 1997

This study aims to analyze the model of 'autonomous regional development', which was initiated in 1980s in Austria, then introduced into Germany and Switzerland. The basic ideas of autonomous regional development are constructed of the peculiarity, the autonomy, the integrity, and the project promotion. The subjects of the development-four poles of the model 'autonomous regional development' -are designed of the land residents, the regional advisers, the regional associations and the state. The concret measures to realize the autonomous regional development are the realization of independent regional economic structures, the autonomy of political decision-makings, and the development of peculiar rural cultures. The autonomous regional development is a new development model, which is founded on the right basic principles. In this model the initiative of the residents is emphasized, and the real autonomy of regional development is required. The principle of autonomy leads to the development of peculiar rural cultures, which keep the peculiarity of the region. The development of rural culture contributes in turn to restoring the identity of residents, which may become a driving force of the rural development.

• 한국중재학회지:중재연구
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• 제33권2호
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• pp.85-108
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• 2023

In international commercial arbitrations that arise from an international commercial contract, arbitral tribunals ruling on the merits of the arbitration apply the law governing the contract. The parties to contract are free to designate the law under the principle of parties autonomy. This paper examines this principle under the Korean Arbitration Act, and makes some legislative suggestions. For this purpose, this paper first discusses what is the scope of matters covered by the law governing the contract, what are the rules of conflict-of-laws for determining the law governing the contract, and what happens when the arbitral tribunal incorrectly applies the law governing the contract? Then, this paper further goes to examine issues such as the form of choice-of-law agreement, the explicit or implicit choice of law, the parties' ability to choose the rules of law including lex mercatoria, the change of choice-of-law agreement, the independence of choice-of-law clause.

• 한국중재학회지:중재연구
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• 제14권2호
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• pp.199-241
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• 2004

This paper discusses to what extent the party autonomy can be allowed in intellectual property dispute resolution agreements in determination of governing law, international jurisdiction, and ADR agreement for arbitration, etc. in considering of the territoriality principle of IP. The party autonomy in choice of governing law and jurisdiction can be fully enjoyed in IP contract disputes. However, the freedom of choice is limited to the disputes regarding IF infringement disputes. The party autonomy is denied in the issues of determination of validity of patent or other IP rights. The author seeks the possibility to allow as much freedom in making choice of applicable law or jurisdiction, or entering into arbitration agreement.

• 한국언어정보학회지:언어와정보
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• 제2권1호
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• pp.214-255
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• 1998

Close examination of previous constraints on bound anaphora that are designed to directly constrain the distribution of referentially dependent(RD) items shows that no universal structural relation may exist that relates RD items to their antecedents. As an alternative to these constraints, this paper proposes an axiom of semantic interpretation, called the Principle of Referential Autonomy, which dispenses with any pretheoretical notion of grammatical functions or configurational notion like c-command. Together with certain English-specific facts, this principle enables us to infer the ungrammaticality of core examples of strong and weak crossover.