• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.66
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• pp.119-148
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• 2015

Generally, the liability for breach is defined as the civil liability that arises from the conduct of violation of a contract. There are two notable principles governing liability for breach that have fundamental impacts on the unified Contract Law of the People's Republic of China (hereinafter Chinese Contract Law) in the remedies. In China, during the drafting of the Contract Law, there was a great debate as to whether damages for breach of contract ought to follow the fault principle or to follow the strict liability principle. Ultimately the Chinese Contract Law follows the model of the CISG on this point, namely, it follows the strict liability principle (article 107) with an exemption cause of force majeure. Under Chinese Contract Law, it is interpreted as strict liability in principle. Strict Liability is a notion introduced into Chinese Contract Law from the Anglo-Saxon Law. The strict liability or no fault doctrine, on the contrary, allows a party to claim damages if the other party fails to fulfill his contractual obligations regardless of the fault of the failing party. Pursuant to the strict liability doctrine, if the performance of a contract is due, any non-performance will constitute a breach and the fault on the party in breach is irrelevant. This paper reviews problems of legal character or legal ground of contractual liability in Chinese contract law. Specifically, focusing on the interpretation of Chinese contract law sections and analysis of three cases related contractual liability in freight agency, the paper proposes some implications of structural features of Chinese contract law and international commercial transactions.

• Journal of Arbitration Studies
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• v.18 no.1
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• pp.49-69
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• 2008

This study is to analyze the case law on the disputes of the ex-im contract of steel bar from Yugoslav to Egypt, for which awards were made by the ICC Arbitration Court, trying to find out the characteristic approach of the tribunal toward arbitration case dealing with socialistic country, Yugoslav and Islamic Egypt. An Egyptian importer and an Yugoslavian Exporter concluded a contract, with an option to purchase an additional quantity. for the steel bar. The importer exercised this option as provided in the contract. But the exporter refused to honor the option, due to the fact that the world market price for the steel bar has gone up. As a result, the importer had to purchase the steel bar as a replacement from a Rumanian company at the price higher than the original contract. And it has initiated arbitration under the arbitration clause at the ICC Arbitration Court to claim compensation for the loss due to the price difference. CISG and ULIS were closely studied along with the Yugoslav Law to determine whether the exporter could be exempted from the liability to damages. But the tribunal denied to accept the exporter's contention. The tribunal decided that the importer was entitled to damages due to the exporter's failure to deliver the additional quantity of goods at the original price. It was due to the fact that the price increase was not extremely sudden & high enough to exceed a reasonable entrepreneurial risk and also could be taken into account when concluding the contract.

• International Commerce and Information Review
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• v.11 no.1
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• pp.291-308
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• 2009

The implied obligation under the contract of affreightment not to carry dangerous goods without prior notice to the carrier applies to the contractual relationship between the charterer and the owner under charterparties. The charterers will be in breach of an implied undertaking under the common law if they load dangerous cargoes without making notice of dangerous nature of them to the owner. It is indicated to be necessary to change the term "shipper" to "charterer", with relation to such implied obligation, where the Hague/Hague-Visby Rules are incorporated into the charter, however, it is not so apparent where an actual shipper is involved. So long as an actual shipper could be identified, the shipper rather than the charterer shall be responsible for damages arising from the dangerous nature of the cargo itself. In this case, the actual shipper is interpreted to have an implied contractual relationship with the carrier just by the act of delivering the cargo to the carrier for loading. If the vessel were damaged by shipment of the dangerous cargo under charterparty, the carrier can claim against such damages based on the contractual obligations under charterparties: "implied and expressed duty not to ship dangerous cargo without notice to the carrier"; "Art.IV.6 of the Hague/Hague-Visby Rules"; "Indemnity Clause" and "Redelivery Clause". The carrier has the conventional right under the Hague/Hague-Visby Rules to land, destroy or render the goods innocuous where the dangerous cargo threatens the means of transport or other interests on board. When the carrier has not consented to make the shipment, the carrier's disposal right could be exercised without limitation. However, where the carrier has consented to make the shipment of the dangerous goods with the knowledge concerned, the right of disposal of such goods should be exercised with limitation.

• International Commerce and Information Review
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• v.16 no.3
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• pp.159-182
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• 2014

CISG Article 71 (1) states that a party may suspend the performance of his obligations if, after the conclusion of the contract, it becomes apparent that the other party will net perform a substantial part of his obligations as a result of a serious deficiency in his ability to perform or in his creditworthiness or his conduct in preparing to perform or in perfoming the contract. CISG Article 71 (2) states a 'right of stoppage in transit' that if the seller has already dispatched the goods before the grounds described in the preceding paragraph become evident, he may prevent the handing over of the goods to the buyer even though the buyer holds a document which entitles him to obtain them. The present paragraph relates only to the rights in the goods as between the buyer and the seller. Under the right of stoppage in transit, the carrier copes with risks that the seller may claim damages arose from the handing over the goods, if he hand over the goods to the buyer and that the buyer may claim damages, if he deny handing over the goods to the buyer who has the document which entitles him to obtain the goods. Therefore the legal position of the carrier may become weak. This paper purpose to point out the legal weakness of the carrier under the right of stoppage in transit and to provide the proper legal act of the carrier and possible practice related to various characters of the contract of sale of the goods. Although there is the opinion it prevent from handing over the goods to the buyer actually under the interpretation that the buyer should take claim damages to the seller, if the goods are handed over to the buyer under the right of stoppage in transit, it is not appropriate because the opinion may disable the right of stoppage in transit. The right of stoppage in transit could be carried out under any payment conditions except letter of credit and under any mode of transportation except the cases that carrier is the buyer himself or the agent of the buyer. It could be executed regardless the forms of the transport document.

• International Commerce and Information Review
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• v.14 no.3
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• pp.231-251
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• 2012

The remedies available to a seller that has suffered a breach of contract by the buyer are addressed in Section III of Chapter III of Part III. The first provision in the section, 61, catalogues those remedies and authorizes an aggrieved seller to resort to them. The remaining provisions of the section address particular remedies or prerequisites to remedies. The subject matter of the current section remedies for breach of contract by the buyer obviously parallels that of Section III of Chapter II of Part III remedies for breach of contract by the seller. Many individual provisions within these sections form matched pairs. Thus 61, which catalogs the seller's remedies, which catalogs the buyer's remedies. Other provisions in the current section that have analogues in the section on buyer's remedies include 62, seller's right to require buyer's performance 63, seller's right to fix an additional period for buyer to perform and 64, seller right to avoid the contract. As was the case with the provisions on buyers' remedies, the articles governing sellers' remedies operate in conjunction with a variety of provisions outside the current section. Thus the seller's right to require performance by the buyer is subject to the rule in 28 relieving a court from the obligation to order specific performance in circumstances in which it would not do so under its own law. The authorization in 61 for a seller to claim damages for a buyer's breach operates in connection with 74-76, which specify how damages are to be measured. 49, stating when an aggrieved seller can avoid the contract, is part of a network of provisions that address avoidance, including the definition of fundamental breach, the requirement of notice of avoidance, provisions governing avoidance in certain special circumstances, measures of damages available only if the contract has been avoided and the provisions of Section V of Part III, Chapter V on effects of avoidance.

• The Korean Journal of Air & Space Law and Policy
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• v.25 no.2
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• pp.3-42
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• 2010

This study shows that the Warsaw Convention in Article 1 is not an international transport, origin, destination and all the Contracting Parties is not a purely domestic shipping does not apply to this Treaty. Therefore, in this case, liability and damages for the governing law is selected according to international law should be. In addition, in the case of international shipping and passenger air carrier of this treaty to govern the relationship, not all of which aim is the unification of certain rules. Product liability is the most important thing of all. As for the aircraft manufacturer's responsibility according to international law also does not select the applicable law is not. The Warsaw Convention Article 17 apply for the passenger's personal damages Article 2 Section 2 leads to the most prestigious type of damages, and subjective and objective with regard to the scope of international law are being committed. In this regard, Governing Law-related aircraft accidents leading to serious accidents in China of an aircraft crash in Nagoya, Japan, the airport can be. China Airlines accident of the aircraft are operated for the unification of the rules for international air transport on the Warsaw Convention as amended by Article 17, Article 18 of damages by the tort claims and claims based on damages caused by, or this cause of aircraft accidents air bus maker by the Corporation for damages in tort claims for damages claimed on the basis of solidarity is the case. In the case of these grand scale claim responsibility for the airline, air transport agreements to determine the applicable law of the contract is very complex. There for the contracts based on individual circumstances or origin, and by considering because each must be determined.

• Journal of Digital Convergence
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• v.14 no.5
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• pp.391-402
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• 2016

The purpose of this research, paying attention on the exaggerated advertisements on online sport media, was to investigate the illegality of the article typed advertisement of online sport media. The results of this research were as follows; First, the article typed advertisements are the assets of the media company as other articles or advertisements. Second, the persons of capacity to act are defined with sport online media, advertiser and customers. Third, the exaggerated advertisements of the sport online media and advertiser are regulated by Korean legal system. Fourth, when victims occurred, the rights of claim for damages could be activated based on the article 750 of the Korean Civil Law. Fifth, the liability for damages may be imposed by Korean Civil Law to the sport online media restrictively.

• The Korean Journal of Air & Space Law and Policy
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• v.35 no.2
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• pp.137-168
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• 2020

Air passengers may be compensated for damages based on the above agreement when the passenger suffers an accident to the extent that they are recognized as an accident under Article 17 of the Montreal Convention in 1999. If a flight or cabin crew and passengers both undergo an accident, passengers are subjected to compensation under the Montreal Convention however flight cabin crews will be compensated by the Labor Law, which is the governing law in the labor contract with the airline. The flight or cabin crew boarding the aircraft work is on a work contract, not a passenger transport contract. Therefore, if the flight or cabin crew on the aircraft is injured due to an accident, and the air carrier is liable for default due to a labor contract, the Labor Law, workers or survivors claim damages due to illegal acts against the employer. In which case, civil law will apply. In this regard, if a Chinese cabin crew working for a Chinese airline dies due to an accident in the Republic of Korea, whether the family of the deceased claims damages against the Chinese airline or not has international court jurisdiction in the Republic of Korea, which is the place of tort. We examined whether it is the law of the Republic of Korea or whether it's the Chinese law, the law applicable to the work contract, is applied. Also, Seoul District Court 1995.5.18. The sentence 94A 14144 was found that if the injured crew during the flight work was not satisfied with the insurance compensation under the Labor Standards Act and the Industrial Accident Compensation Insurance Act, he could claime to damage under the civil law against an air carrier or third parties responsible for the accident. This law case shows that you can claim a civil damage as a cause. In case of death due to an existing illness while on the way to work, the Korea Workers'Compensation and Welfare Service did not recognize the death of the deceased as an occupational accident, and the trial was canceled by the parents of the deceased for the survivor's benefit and funeral expenses. (Seoul Administrative Court 2017.8. 31. Although the sentence was judged as an occupational disaster in 2016, the 2016 8816 Decision), it was defeated in the appeals court (Seoul High Court 2018.7.19.Sentence 2017 No. 74186) and I criticized the judgment of the appeal by analyzing the deceased's disease and related the cause of it to workload. Sometimes, a flight or cabin crew is on board not for the flight duty such as transferring to another flight or returning to the home base or lay-over place after their scheduled flight, this is called "Deadheading". If the crew who is not considered the same as a passenger, but is not on duty, is injured in an accident, does the crew claim compensation for damages under the labor contract or whether the Montreal Convention is applied to the passenger. In conjunction with the discussion, there was a similar case, In re Mexico City Aircrash of October 31, 1979, 708 F.2d 400 (9th Cir. 1983), Demanes v. United Airlines, 348 F.Supp. 13 (C.D.Cal. 1972), Sulewski v. Federal Express Corp., 749 F.Supp. 506 (S.D.N.Y. 1990) and reviewed by the European Court of Justice (CJEU) at Wucher Helicopter GmbH and Euro-Aviation Versicherungs AG v. After examining several acts in several countries it's undeniably crucial to clearly understand the definition of "passenger" as stated in the Fridolin Santer case.

• The Korean Society of Law and Medicine
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• v.15 no.2
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• pp.63-89
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• 2014

In 1976, the Dalkon Shield-intrauterine device injured several thousand women in U.S.A. which caused the changes of medical deivce regulation. The Medical Device Regulation Act or Medical Device Amendments of 1976 (MDA) was introduce. As part of the process of regulating medical devices, the MDA divides medical devices into three categories. The class II, and III devices which have moderate harm or more can use the section 510 (k), premarket notification process if the manufacturer can establish that its device is "substantially equivalent" to a device that was marketed before 1976. In 21 U.S.C. ${\S}$ 360k(a), MDA introduced a provision which expressly preempts competing state laws or regulations. After that, the judicial debates had began over the proper interpretation and application of Section 360(k) In February 2008, the U.S. Supreme Court ruled in Riegel v. Medtronic that manufacturer approved by the Food and Drug Administration (FDA)'s pre-market approval process are preempted from liability, even when the devices have defective design or lack of labeling. But the Supreme Court ruled in Medtronic Inc. v. Lora Lohr that the manufactures which use the section 510 (k) process cannot be preempted and in Bausch v. Stryker Corp. that manufactures which violated the CGMP standard are also liable to the damage of patient at the state courts. In 2009, the Supreme Court ruled in Wyeth v. Levine that patients harmed by prescription drugs can claim damages in state courts. This may cause a double standard between prescription drugs and medical devices. FDA Preemption is the legal theory in the United States that exempts product manufacturers from tort claims regarding Food and Drug Administration approved products. FDA Preemption has been a highly contentious issue. In general, consumer groups are against it while the FDA and pharmaceutical manufacturers are in favor of it. This issues also influences the theory of product liability of U.S.A. Complete immunity preemption is an issue need to be more declared.

• Korea Trade Review
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• v.45 no.1
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• pp.119-135
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• 2020

It is well-known that if a claim for damage [Note: Damage can be singular or plural] is made based on a breach of contract, calculating the existence and magnitude of certain profits to be deducted based on the damage can be problematic. In the case of a time charter party, even if the early redelivering vessel by the time charterers constitutes a breach of contract, it is still not an exception. In particular, interest in the shipping business seems to be relatively high in terms of how claims for damage by ship owners have been adjusted. In the case of the New Flamenco, there is a debate over whether or not to deduct the difference between the sale price immediately after redelivering the ship and the sale price upon expiration of the contract from the damage based on the breach of contract for the early time charter redelivery vessel. This paper focuses on this case since it appears to be of practical importance and has implications on how to calculate the amount of damage in the case of cancellation for early redelivery vessel in a time charter party.