• 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.

• Korean Journal of Construction Engineering and Management
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• v.21 no.5
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• pp.3-10
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• 2020

Subcontracting of construction is essential to carry out public construction projects. Subcontractor of the construction work shall enter into a contract with the original contractor without directly entering into a contract with the owner. Subcontracts are therefore greatly affected by the original contract with the owner. To protect subcontractors, the Fair Trade Act is enacted and the construction company's standard subcontracting contract is in operation. However, subcontracts are not properly reflected in the Government contract system, which deals with the relationships between the owner and the original contractor. In particular, the subcontractor may complain of difficulties at the public construction site as such procedures are not properly reflected in the construction work standard subcontract, although various procedures shall be carried out depending on the amount when change order occurs in subcontracts. Thus, the direction of improvement of subcontracting systems was proposed in the case of change order at public construction project sites as follows: First, the rights of subcontractors should be strengthened. Second, in order to resolve the information non-identity, subcontractors should have access to information related to subcontracts. Third, the status of subcontractor shall be guaranteed by reflecting the characteristics of the subcontract when the original contract for public works is concluded. Fourth, the dispute settlement method should be prioritized over litigation in order to fair subcontracting.

• Proceedings of the Korean Institute Of Construction Engineering and Management
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• 2008.11a
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• pp.505-508
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• 2008

It's hard to express a lot of information within the drawings and the specifications as construction projects have gradually become large-size and complex. So, disputes are caused by that and reason that the usual practice(culture) of contract of the constructions in Korea is based on unfair rather than the fair principle between clients and contractors. However, the contractors don't try to solve this kind of things because they are worried about at their disadvantage situation. Therefore, this paper deduced the factors in the pre-dispute phase by analysing the cases of the civic counseling in the office of supply and the pre-dispute factors, and conduct analysis on the factors' importance by using AHP. The results will be used for a check-list to prevent the disputes.

• Journal of the Korea Institute of Building Construction
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• v.10 no.4
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• pp.21-29
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• 2010

International construction contractors are often faced with the situation of working in an unfamiliar construction environment. Under FIDIC rules, the contractor has the right to make a claim requesting the consulting engineer for an adjustment to the contract price or the time for completion when a part or parts of the works have changed, or in the event of unforeseeable conditions. Contractors generally have more access to the costs and time implications of such a change or unforeseeable conditions than the consulting engineer or outside neutrals. Due to such an asymmetry of information, the contractor may be motivated to dispute frivolous claims of less merit, expecting erroneous judgments by the consulting engineer or the neutrals. In this paper, a claiming behavior model is presented by using game theory and experience data to study the manner in which frivolous claims develop into disputes. The model also analyzes the impacts of DAB/DRB upon the frivolous claims.

• International conference on construction engineering and project management
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• 2005.10a
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• pp.693-698
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• 2005

Evaluation of construction claims history can provide insights to improvement opportunities in a capital project portfolio. This study analyzed construction litigation claims extracted from the U.S. Court of Federal Claims (COFC) history involving the U.S. Naval Facilities Engineering Command (NAVFAC) from 1995-2004. Twenty-four total cases were examined over this period. Both "primary" causes and "root" causes were identified and compared to 666 litigation cases reviewed by the Armed Services Board of Contract Appeals (ASBCA). Based on the analysis, strategies for resolving future disputes are recommend using a 'hybrid' process prior to litigation.

• Journal of Arbitration Studies
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• v.18 no.2
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• pp.79-102
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• 2008

When several parties are involved in a dispute, it is usually considered desirable that the issues should be dealt with in the same proceedings, rather than in a series of separate proceedings. This saves time and money. It avoids the possibility of conflicting decisions on the same issues of law and fact, since all issues are determined by the same tribunal at the same time. Where there is a multi-party arbitration, it may be because there are several parties to one contract, or it may be because there are several contracts with different parties that have a bearing on the matters in dispute. In international trade and commerce, for individuals, corporations or state agencies to join together in a joint venture or consortium or in some other legal relationship of this kind, in order to enter into a contract with another party or parties, where such a contract contains an arbitration clause and a dispute arises, the members of the consortium or joint venture may decided that they would each like to appoint an arbitrator. A different problem arises where there are several contracts with different parties, each of which has a bearing on the issues in dispute. A major international construction project is likely to involve not only the employer and the main contractor, but also a host of special suppliers and sub-contractors. Each of them will be operating under different contracts often with different choice of law and arbitration clauses. The appointment of the arbitrator or the composition of the arbitral tribunal should be in accordance with the agreement of the parties. The parties have to be equally treated in the constituting of the arbitral tribunal and the arbitral proceedings. However, the right of the parties to nominate a member of the arbitral tribunal could be taken away from them, if they are subject to the restrictions by means of the law of the country where the arbitration is taking place. That is, multiple parties jointly should nominate one arbitrator, where there they have to exercise their substantive right in common, or one of them exert his substantive right, then it has an effect on another parties, or they, whether as claimant or as respondent, get the same or similar treatment in the arbitral procedure. Therefore it is necessary to intend to settle multi-party disputes quickly and efficiently.

• Korean Journal of Construction Engineering and Management
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• v.21 no.4
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• pp.3-11
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• 2020

Problems related to construction contracts arise if they are not reflected in the design phase from the planning phase of the construction project, or if they are not properly dealt with despite various changes in the construction phase. So far, there have been a number of discussions in Korea regarding the improvement of the procedures for resolving construction disputes, and the problems related to the procedures for solving construction disputes have been raised steadily, but the problems related to the procedures for solving construction disputes are still unresolved. Therefore, in this study, the followings were proposed to strengthen the international competitiveness of the construction industry. First, the so-called Construction Dispute Mediation Act should be enacted to prepare the basis for the establishment of a tentatively named Construction Dispute Mediation and Arbitration Agency(CDMA). Second, the work of the CDMA should be limited to the work of supporting the DRB, mediation and Arbitration the private and public sectors. Third, it is required to choose between adjustment and arbitration when obtaining a contract and to operate the DRB during construction phase. Fourth, CDMA should be established as standing bodies, and branches should be operated in various parts of the country. Fifth, construction experts from various areas should be included as members so that disputes over construction contracts can be dealt with quickly. And finally, relevant laws that specify the procedures for dealing with construction disputes should be amended together.

• Journal of Navigation and Port Research
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• v.38 no.5
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• pp.471-477
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• 2014

In general, a regular charterparty form is used as a charterparty for tugboats which are employed in marine construction and a bareboat charter form is generally used for barge boat charterparty. As the tug-barge charterparty which are currently used do not have a standardised form, contracting parties arbitrarily decide on the terms and conditions of the contract. As a result, provisions of the charterparty usually do not specify in the contract which party bears the burden of liability in case of accident. Furthermore, the terminologies used in the charterparty are different from legal terms of current commercial law which causes confusion. These problems can be solved mostly by clarifying the legal character of the charterparty between the contracting parties and by conforming the terminologies. In addition, endeavour to standardise the contract form must be carried forward at the same time. This research purports to study actual condition of current charterparty for tug-barge ship which are employed to marine construction and to suggest systematic improvement plan. For this purpose, this research focuses on studying cases in which dispute arose due to lack of clarity in the provisions of the contract with regard to which party bears the burden of liability in case of accident. This research also purports to suggest forming the standardised contract terms of the charterparty as one way of solution and examine matters to be attended in writing a standardised form.

• Journal of the Korea Institute of Building Construction
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• v.18 no.4
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• pp.355-361
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• 2018

Many defects are occurring in apartments, the main residential area in Korea. This is due to a lack of construction skills and a lack of management. As many apartments are provided to buyers, the dispute over defects after completion is increasing rapidly. The Housing Act was amended so that local governments could order contractors to repair defects. However, even if defects are resolved after a defect is generated, it is not a fundamental solution that can be satisfied because buyers have to endure the pain caused by the defect. So, it is necessary to protect the interests of buyers by fundamentally reducing defects in apartments. Therefore, in this study, it was suggested that the asymmetry of the information about the apartment buyers should be resolved at the time of sale of the apartment, the final drawings should be a contract document, the review period of the apartment house supervision should be secured, the appropriate supervisory fee should be secured at the time of contract change and the payment procedure should be improved.

• Journal of Arbitration Studies
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• v.14 no.1
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• pp.273-314
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• 2004

There is a belief in the construction industry that the traditional court system may not be an ideal forum to effectively and efficiently resolve construction disputes due to the protracted proceedings and the three tier appeal system resulting in a long delay in the final and conclusive settlement of the dispute, relatively high costs involved, the lack of requisite knowledge and experience in the relevant industry, etc. Hence, they assert that certain alternative dispute resolution ('ADR') methods, such as mediation, conciliation, arbitration or a new system for dispute settlement in the form of any combination thereof should be developed and employed for construction disputes so as to resolve them more promptly and efficiently to the satisfaction of all the disputants concerned. This paper discusses certain merits of such assertions and the need for additional considerations for effective resolution of the construction disputes in light of the complexity of the case, importance of expert witnesses, parties' relationship and non-level playing field of the construction industry and so on. At the same time, however, given the inherent nature of disputes rendering the parties involved in an adversarial position, it would rather be difficult, if not practically impossible, to satisfy all the parties concerned in the dispute. Accordingly, in this study, it is also purported to address the demerits of such assertions by studying the situation from a more balanced perspective, in particular, in relation to the operation of such ADRs. In fact, most of such ADRs as stipulated by special acts, such as the Construction Industry Basic Act of Korea, in the form of mediation or conciliation, have failed to get support from the industry, and as a result, such ADRs are seldom used in practice. Tn contrast, the court system has been greatly improved by implementing a new concentrated review system and establishing several tribunals designed to specialize in the review and resolution of specific types of disputes, including the construction disputes. These improvements of the court system have been warmly received by the industry. Arbitration is another forum for settlement of construction disputes, which has grown and is expected to grow as the most effective ADR with the support from the construction industry. In this regard, the Korean Commercial Arbitration Board ('KCAB') has established a set of internal rules end procedures in operation to efficiently handle construction disputes. Considering the foregoing, this paper addresses the most important elements of the arbitration, i.e., arbitration agreement and arbitral award, primarily focusing on the domestic arbitrations before the KCAB. However, since this parer is prepared for presentation at the construction disputes seminar for the public audience, it is not intended for academic purposes, nor does it delve into any specific acadcmic issues. Likewise, although this paper addresses certain controversial issues by way of introduction, it mainly purports to facilitate the understanding of the general public, including the prospective arbitrators on the KCAB roster without the relevant legal education and background, concerning the importance of the integrity of the arbitration agreement and the arbitral award. In sum, what is purported in this study is simply to note that there are still many outstanding issues with mediation, conciliation and arbitration, as a matter of system, institutional operation or otherwise, for further study and consideration so as to enhance them as effective means for settlement of construction disputes, in replacement of or in conjunction with the court proceeding. For this purpose, it is essential for all the relevant parties, including lawyers, engineers, owners, contractors and social activists aiming to protect consumers' and subcontractors' interests, to conduct joint efforts to study the complicated nature of construction works and to develop effective means for examination and handling of the disputes of a technical nature, including the accumulation of the relevant industrial data. Based on the foregoing, the parties may be in a better position to select the appropriate dispute resolution mechanism, a court proceeding or in its stead, an effective ADR, considering the relevant factors of the subject construction works or the contract structure, such as the bargaining position of the parties, their financial status, confidentiality requirements, technical or commercial complexity of the case at hand, urgency for settlements, etc.