• Journal of Arbitration Studies
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• v.20 no.3
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• pp.93-120
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• 2010

In 1978, Chinese reform and opening caused a big changes in Chinese labor relationship. Through reforming and opening, China gave up part of state ownership system and group ownership system, permitted private ownership system, and also opened the way for capitalists to ride again. Since China was established, the labor relationship ceased for 30 years has been appeared. However because the top priority aim of China's reform was economic growth, the protection of the rights and interests of labor was pushed back on the policy priority list. China takes foreign capitals based on cheap labor force quickly and China come up the worldwide plants. Since reformed, China keeps an economic growth rate of 9.7% annually for 30years. This economic growth is based on labor's sacrifice. However, Chinese fast economic growth causes side effects such as increasement of the gap between the wealthy and the poor, increasement of unbalanced development between regions, and the increasement of conflict between labor and management. Especially, according to changes in labors' level of consciousness, the labors recognized that their rights and interests are exploited by employers. Therefore, the labor dispute is continuously increasing. Chinese government changes their policy from the policy focusing on enterprise development to the policy protecting labor's rights and interests. In order to protect labor's rights and interests, China conducts labor contract law and labor dispute conciliation arbitration law in 2008. This kind of changes in Chinese labor environment affect a lot to Korean companies which already entered into China or are willing to enter. According to studying on present situation and resolution system in Chinese labor dispute, this paper suggests the proper countermeasure related to labor dispute of Korean companies which entered in China. First, the success rate of labor dispute conciliation by enterprise labor dispute conciliation committee is around 20% during recent several years and the success rate by year is in decline. Therefore, when labor dispute is occurred, our companies which entered into China better use other labor dispute methods such as negotiation and arbitration than conciliation in order to settle a conflict. Second, from the Korean enterprises entered in China point of view, there exists a problem not to sue except special cases which provided in the law even though they are dissatisfied with arbitrate judgment. Thus, when labor dispute occurred, Korean enterprises try to do best to settle the dispute through negotiation. However, in case of that the dispute cannot be settled by negotiation, they have to attend in the arbitration as if it is a last chance. Third, Korean enterprises keep in mind that dispute handling procedures between labor union and users or between labor group and users are different, and then deal with separately. Thus, dispute between labor and users have to follow arbitrate procedures as a necessary procedure, but in case of dispute related to group contract, namely dispute against labor union, labor dispute can be settled by arbitrate or suit, so after figuring out the situation exactly, it is necessary to select more advantageous way in order to settle the dispute. Moreover, in case of the dispute between labor union, they have to keep in mind that conciliation procedures cannot be used.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.73
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• pp.1-20
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• 2017

There are many safeguards and measures available regulating the protection of a trademark and its registered holder, however, the protection of a licensee in a trademark license agreement is also important for protection of a intellectual property. Therefore, there are several measures in place for the protection of licensees' interests in Chinese trademark law. Article 43(3) of the Chinese Trademark Law rules a licensor who licenses others to use his registered trademark shall submit the trademark licensing to the trademark office for file, and the trademark office shall announce the trademark licensing to public. Without filing, the trademark licensing shall not be used against a bona fide third party. It means a licensee can not use an unrecorded license with the relevant trademark authority against third parties - essentially, this means that a licensee should insist on having their trademark license agreements recorded against the relevant trademark authority, so that a licensee's interests are protected as against the assignees, licensees and other types of third parties. Otherwise a third party in good faith can use the registered trademark legally against a licensee even though a trademark license agreement between a licensor and licensee is still valid.

• The Korean Journal of Air & Space Law and Policy
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• v.30 no.2
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• pp.155-176
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• 2015

Leasing is one of the main methods for Chinese airlines to introduce aircraft from overseas manufactures, and this method has been used for more than 30 years by Chinese airlines. Aircraft leasing in essence is a kind of financial transaction, through which lessors provide finance to lessees by means of the delivery of possession of the leased aircraft. At the time when China started to introduce aircraft through leasing some 30 years ago, the Chinese domestic laws were very insufficient to regulate these activities. Therefore, a construction process for the law of aircraft leasing was triggered then, and some fruit has been gained. By far, there are rules to adjust the aircraft activities in the aspects of contract, real right, default and bankruptcy remedies. However, as the improvement of any system must undergo a process of exploration, the law of aircraft leasing in China is still faced up with many challenges. Especially with the emergence and prosperous of domestic leasing industry, new transaction structures and models of aircraft leasing have emerged, which leaves new challenges to current legal system. On the basis of introducing the history and main contents of Chinese legal regime of aircraft leasing, this paper offers an analysis of achievements and challenges on present Chinese laws in the aspects of contract, real right and remedies.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.69
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• pp.617-632
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• 2016

After contracting of Korea-China FTA, we have expected the trade volume has mutually been increasing a lot. If we are using this contract, we would make an activation of Korea economy. Especially, Korea youngman has been caught a big chance to make a business in Korea & China. For example, Xian, which is one of center of silk road, has become big strategy area. As we need to focus on this area, we will be expected to indirect influences of consumer's industries like cosmetic, fishery products, food service, eco-friendly items. Recently, the youngman starting up a business has become a trend of kinds of alternative new job. Then, we have to provide practical solution for young man. One of this solution is 'starting up a business'. In this study, I empirically investigated the relation between Korea-China FTA and the youth starting up a business. So, I believe that this study can light up on the direction of effective starting up for making & success a business in China.

• 중국학논총
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• no.63
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• pp.205-224
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• 2019

The results of the studies of China and Vietnam are as follows. First of all, in China, the labor market in China has been fully completing laws and regulations since the implementation of the labor contract law in 2008. Specifically, we analyzed the labor market in China for labor contracts, recruitment, and minimum wage. Next, in Vietnam, which the tertiary and quaternary industries are rapidly developing. The labor market is expected to increase because demand for foreign manpower, as the advancement of retail, finance, tourism services, Smart factories in the textile and sewing- do. The limitations of this study, however, are that there is not enough data to utilize official data for labor market analysis in China and Vietnam. If a practical investigation is conducted for analyzing the labor market in Vietnam due to the changes in the labor market

• The Korean Society of Law and Medicine
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• v.7 no.2
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• pp.113-136
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• 2006

In recent years, as well as the other countries, medical dispute cases increase continuously in China. one of the reason that medical cases increase rapidly like this is after reformation and opening people's sense of independence, law and right come to be high, but a theoretical study about medical malpractice liability is insufficient and there is deficiency at legislation from 1986 civil law general rule is carried out in Chinese. but it is difficulty to deal with those more and more complicated medical dispute only according to the law above. so in 2001 The Chinese Supreme Court established the judicial construction about civil litigation evidence which regulated the shift of the burden of proof of medical malpractice and the relation of cause and effect from the plaintiffs to the defendants. in 2002 the State Council made out Incident of Malpractice Processing Rule. but many scholar pointed out the problem in it. on the other side, according to Chinese Contract Law parties could choose contractual or tort liability to prosecute. but because of the judicial construction above majority of people asked tort liability. of course there are some cases asking contractual liability. then this paper aim at analysis of the Chinese medical malpractice liability, especially of the problems about the subject of responsibility, burden of proof and scope of responsibility.

• Journal of Arbitration Studies
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• v.29 no.1
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• pp.53-70
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• 2019

This study analyzed some cases of the China International Economic and Trade Arbitration Commision (CIETAC) related to the application of the Contracts for the International Sale of Goods (CISG). As a contracting party of the CISG, China has accumulated a considerable amount of experience in applying CISG through commercial arbitrations. This study sought to understand how CISG is operated in commercial arbitration in China. By analyzing actual cases in China, Korean commercial arbitration can avoid mistakes and further improve. This study of Chinese cases will give some useful information for Korean companies. As defined by the CISG, the applicability can be divided into direct application and indirect application. When China joined the CISG, it made a reservation out of Article 1(1)(b). Korea and China are contracting parties to CISG and CISG is, therefore, directly applied. It is beneficial for Korea to understand how CIETAC is indirectly applied in China then. Some of the results of this study are as follows: First, CIETAC made a correct judgment most of the time on the direct application of CISG. However, there were mistakes in the judgment of the nationality of the parties in a few cases. The parties must clearly define applicable laws when entering into a contract. Secondly, the 2012 "CIETAC Arbitration Rules" was revised so that the "party autonomy" was introduced into Chinese commercial arbitration concerning indirect application. Therefore, the principle of autonomy of the parties was not fully recognized in the past judgments. Instead, the domestic law of China was applied in accordance with the reservation of Article 1(1)(b). Thirdly, China did not explain the application of CISG in Hong Kong, which led to ambiguity in concerned countries. Therefore, it is necessary to confirm the status of CISG in Hong Kong. In addition, Korean companies should clearly define the applicable laws when dealing with Hong Kong companies.

• Korean Journal of Labor Studies
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• v.19 no.1
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• pp.177-211
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• 2013

The Chinese dual structure of employment('Shuangguizhi') has been retained through the Economic Reforms, and has been supported and reproduced by the system of division between rural and urban household registration. In the 2000s, efforts of the government to abolish the division appeared to be effective with the introduction of the 'Labor Contract Act'. However, the eclecticism of the Act and the outbreak of the global financial crisis in 2008 gave new momentum to the revival of the Chinese dual structure of employment by increasing the scale of labor dispatching. Labor dispatching in China has become a regular form of employment rather than an exceptional one. Labor dispatching reveals its Chinese characteristics against the particular background formed during the periods of state-owned-enterprise restructuring around 2000. The combined effects of the 'Labor Contract Act' and the global financial crisis brought about the effect of increase rather than control of labor dispatching, and gave a signal to enterprises to use various forms of labor dispatching including 'reverse directional labor dispatching' to lessen burdens and costs caused by the Act and the crisis. As labor dispatching strengthens or displaces the existing dual structure of employment, social groups which need more social protection tend to be much more excluded from the protection of the government and the society.

• Journal of Arbitration Studies
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• v.25 no.4
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• pp.77-95
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• 2015

CISG provides a uniform framework for contracts of sale of goods between parties whose places of business are in different States. In 2004 South Korea became the 63th State around world to adopt CISG. Starting next year CISG goes into effect as the law that governs the contracts for international sale of goods, in respect of which CISG displaces the existing domestic civil and commercial codes of Korea. By its provision Article 1(a), CISG applies directly between Contracting States without reference to private international law. As South Korea's biggest trade partners including China, the U.S. and Japan are also parties to CISG, the number of such direct applications continuously increases. Now it is estimated, though roughly, that CISG governs about two-thirds of Korea's import and export trade of goods. The private survey of the author shows that up to now in South Korea there are 39 court cases decided by the first instance courts, 29 cases by the appellate court and six cases by the Supreme Court of South Korea. In nearly all these cases, CISG applied directly. Furthermore, currently CISG is, in several respects, influencing upon the revision of Korean civil code which is designed to modernize it: The revised draft published in 2013 adopts the rules on the revocation of offers provided in articles 15 and 16, the rule on the termination of offers provided in article 17 and the rule on the time that an acceptance takes its effect provided in article 18 of CISG. More importantly, in accordance with the rules taken by CISG, the revision draft no longer requires the existence of fault or negligence on behalf of the breaching party in order for the aggrieved party to void the contract, and the revised draft denies the right of avoidance for trivial, not fundamental, breaches of contract.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.51
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• pp.133-158
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• 2011

The purpose of this study is to analyze one of CIETEC(China International Economic and Trade Arbitration Commission) Award on the dispute arising from Cotton Sale Contact which deals with damages and reduction of the price. Especially this case focused on the effect of reduction of the price to damages. The purpose of damages is to place the aggrieved party in as good a position as if the other party had properly performed the contract. So court costs and attorney's fee should be regarded as the loss, because these are caused by consequence of the breach which is recoverable. With the same reason, overpaid taxes should also regard as the loss. It is not impossible, however, to claim both damages and reduction of the price for same loss at the same time. It means buyer could not claim damages for the same loss, once he already claimed reduction of the price. So Korean companies should consider which remedy is proper to himself under the circumstances. He should choose reduction of the price when market price is down. In case of rising market price, he should consider follows: first, it is better to choose damages based on current price(Art.76), if upswing of non-conformity price is higher then upswing of market price. Second, it is better to choose general rule for measuring damages(Art.74), if upswing of market price is higher then upswing of non-conformity price.