• 국제학술발표논문집
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• The 1th International Conference on Construction Engineering and Project Management
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• pp.980-985
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• 2005

Since the 1980s, Build-Operate-Transfer and its variations have become a common approach to develop large-scale infrastructure projects. Despite the slight variations in contractual settings, the key issue for all parties concerned is to assess the risks and uncertainties inherent in a project. The risk factors studied and highlighted by past researchers are very diverse. This paper starts with an objective to compare the risk factors in different sectors of infrastructure, and then categorize them into two kinds: general and specific. Following this classification, risk mitigation strategies should be adopted differently at the corporate and project levels. A few short cases have also been used to illustrate the flexible measures or "options" that some project participants have designed to address risks and uncertainties at the two levels.

• 국제학술발표논문집
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• The 7th International Conference on Construction Engineering and Project Management Summit Forum on Sustainable Construction and Management
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• pp.245-251
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• 2017

Integrated Project Delivery (IPD) is a procurement method that has been proved to improve construction project performance. However, in China implementation of IPD practices in construction projects is unknown though some researchers have studied the problems and constraints in adoption IPD. The purpose of this study was to explore IPD adoption in Chinese construction industry. Critical components of IPD implementation were reviewed, and questionnaires were distributed to collect industry views. The results revealed that IPD uptake is still low. In particular, the liability waiver and shared risks and rewards have been rarely used. In addition, co-location, value engineering method and the new compensation approach have also been hardly adopted. Some practices related to early involvement of key parties were adopted. Surprisingly, the findings indicate that the client has been continuously involved in the projects. The findings may imply that the legal issues and problems of contractual frameworks are still constraining IPD implementation in Chinese construction industry.

• 무역상무연구
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• 제19권
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• pp.67-93
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• 2003

The CISG approach was intended to make the remedial system clear, but produced ambiguity, and complexity. The CISG does not differentiate between main, auxiliary and participatory obligations. There is no distinction between breaches of main or breaches of auxiliary obligations, rather, a distinction is made between fundamental and other breaches of contract. Articles 25 gives the definition of fundamental breach of contract. This concept is the essential of avoidance and remedial system in the CISG. This concept, however, is ambiguous. The fact that the fundamentality of a breach of contract in many cases is the condition for an avoidance of contract, is expression of the trend of the CISG to preserve contracts, which I consider as essential in international trade. The elements which define a substantial detriment are extremely complex. It will become obvious that the relevant detriment is not a static element, but in many instances occurs only when the breach of contract continues. It should be added that it is the circumstances of each individual case which are relevant. It is to be stressed that a fundamental breach of contract must constitute also a non-fulfillment of a contractual obligation.

• 한국철도학회:학술대회논문집
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• 한국철도학회 2010년도 춘계학술대회 논문집
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• pp.838-849
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• 2010

It is inevitable to control the systematic failure to obtain the software safety integrity of embedded software installed in rolling stock. Because it is not possible to assess systematic failure integrity by quantitative methods, SILs are used to group documentation, methods, tools and techniques throughout software development lifecycle which, when used effectively, are considered to provide an appropriate level of confidence in the realization of a system to a stated integrity level. Normally, safety approval process is through generic product, generic application and specification application for. For safety approval on generic application of software based system, it is required to apply the certified software processes from the planning stage for the assigned SIL. As such, we will develop project specific application with high safety integrity within time limit of contractual delivery schedule through software assessment to the modified area with the re-use of certified software module and documentation. At this point, Hyundai Rotem has developed software processes applicable to support SIL 4 based on EN50128 which was assessed and certified by TUV SUD. This paper introduces the Hyundai Rotem's detailed approach and prospective action to achieve software safety integrity level.

• 유통과학연구
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• 제12권2호
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• pp.39-47
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• 2014

Purpose - The ultimate goal of a franchise system comes from its win-win strategy. Agency theory uses goal incongruity to examine complex contracting problems between buyers and suppliers. Goal incongruity within a contractual relationship can be defined as the agent's desire not to cooperate. It is the degree to which the contractual terms do not satisfy the agent's goals. The greater the goal incongruity between the agent and the contract, the more likely it is that the agent will meet the terms of the contract. Thus, goal incongruity between buyers and suppliers has close relationships with both behavioral and financial performance. This study tries to examine these relationships in the franchise context using a model including related variables, such as regulatory foci, financial performance, and opportunism, to explain the reasons that not all franchisees perform their best. In particular, the study examines the effects of goal incongruity on regulatory focus, and the effects of regulatory focus on performance and opportunism. In short, the objective is to determine goal incongruity's effect on regulatory foci, and the effect of regulatory focus on performance and opportunism. Research design, data, and methodology - This study used data collected from the franchisee managers of 104 franchisors in South Korea. The franchisors include more than 10 franchisees, the majority of whom have been in business for more than five years. The study also surveyed 104 franchisees, matched with their franchisors for the sake of a dyadic approach. The study used regression analysis to test the hypotheses. Results - H1 and H2 predicted that goal incongruity would decrease promotion focus and increase prevention focus. Supporting H1, the result indicates goal incongruity had a positive effect on promotion focus. However, H2 was not supported. Goal incongruity had no significant effect on prevention focus (β = -.375, t = -4.331 and β = -.145, t = -1.950, respectively). H3 and H4 predicted that promotion focus would increase financial performance and decrease opportunism. Supporting these hypotheses, the results indicate that promotion focus had a positive effect on financial performance and a negative effect on opportunism (β = .771, t = 7.899 and β = -.765, t = -6.778, respectively). H5 and H6 predicted that prevention focus would decrease financial performance and increase opportunism. However, the results do not support these hypotheses. The results indicate that prevention focus had no effects on opportunism or financial performance (β = -.130, t = -1.070 and β = .090, t = .641, respectively). Overall, the evidence generally supported the hypotheses. Conclusion - Goal incongruity between a franchisor and a franchisee increases the franchisee's financial performance and opportunism, and the relationship is mediated by promotion focus. Interestingly, however, prevention focus has no mediating effect between goal incongruity and performance. Even though no significant relation exists between goal incongruity and prevention focus, the results have two implications. First, decreasing goal incongruity can improve financial performance and suppress franchisee opportunism. Second, the relationship between goal incongruity and performance affects promotion-focused franchisees.

• 무역상무연구
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• 제14권
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• pp.103-152
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• 2000

English contract law has traditionally taken the view that it is not the duty of the parties to a contract to give information voluntarily to each other. In English law, one of the principal distinctions between insurance contract law and general contract law is the existence of the doctrine of utmost good faith in insurance law. The doctrine gives rise to a variety of duties, some of which apply before formation of the contract while others apply post-formation. This article is, therefore, designed to analyse the overall structure and problems of the doctrine of utmost good faith in English marine insurance law. The results of analysis are as following : First, the requirement of utmost good faith in marine insurance law arises from the fact that many of the relevant circumstances are within the exclusive knowledge of the assured and it is impossible for the insurer to obtain the facts to make a appropriate calculation of the risk that he is asked to assume without this information. Secondly, the duty of utmost good faith provided in MIA 1906, s. 17 has the nature as a bilateral or reciprocal, overriding and absolute duty. Thirdly, the Court of Appeal in Skandia held that breach of the pre-formation duty of utmost good faith did not sound in damages since the duty did not arise out of an implied contractual term and the breach did not constitute a tort. Instead, the Court of Appeal held that the duty was an extra-contractual duty imposed by law in the form of a contingent condition precedent to the enforceability of the contract. Fourthly, the scope of the duty of utmost good faith is closely related to the test of materiality and the assured is required to disclose only material circumstances subject to MIA 1906, s. 18(1) and 20(1). The test of materiality, which had caused a great deal of debate in English courts over 30 years, was finally settled by the House of Lords in Pan Atlantic and the House of Lords rejected the 'decisive influence' test and the 'increased risk' test, and the decision of the House of Lords is thought to accept the 'mere influence' test in subsequent case by the Court of Appeal. Fifthly, the insurer is, in order to avoid contract, required to provide proof that he is induced to enter into the contract by reason of the non-disclosure or misrepresentation of the assured. Sixthly, the duty of utmost good faith is, in principle, terminated before contract is concluded, but it is undoubtful that the provision under MIA 1906, s. 17 is wide enough to include the post-formation duty. The post-formation duty is, however, based upon the terms of marine insurance contract, and the duty lies entirely outside s. 17. Finally, MIA 1906, s. 17 provides expressly for the remedy of avoidance of the contract for breach of the duty. This means rescission or retrospective avoidance of the entire contract, and the remedy is based upon a fairly crude 'all-or-nothing' approach. What is needed in English marine insurance law is to introduce a more sophiscated or proportionate remedy.

• Journal of Korea Trade
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• 제24권6호
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• pp.19-36
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• 2020

Purpose - This paper analyzes how to interpret the legal view of the precedents to the UK Insurance Act 2015, comparing it to the UK Marine Insurance Act (MIA) 1906 with a focus on the relationship between the duty of uberrimae fidei and the duty of disclosure. Furthermore, this study focuses on the judgment of the Korean Supreme Court in a case, that examined whether the legal nature of the duty of disclosure or duty of uberrimae fidei in insurance law can be considered as a matter related to the insurer's liability when the applicable terms of English law are incorporated under the insurance contract. Design/methodology - This paper belongs to the field of explanatory legal study, which aims to explain and test whether the choice of law is linked to the conditions that occur in the reality of judicial practice. The approach that is used toward this problem is the legal analytical normative approach. The juridical approach involves studying and examining theories, concepts, legal doctrines and legislation that are related to the problem. Findings - Regarding the requirements and effects of breach of the duty of disclosure, if English law and the Korean Commercial Act are handled differently from each other and Korean law is recognized as the applicable law outside of the insurer's liability, it may be whether the insurer's immunity under English law is contrary to s.633 of the Korean Commercial Act. In considering the breach of the duty of disclosure as a matter of the insurer's liability, even if English law is applied as a governing law, the question of how to interpret the agreement of the governing law in this case may also be raised in the interpretation of Korean International Private Law in relation to the applicable law that applies to the rest of the matter, excluding the matters of liability. Originality/value - According to the Korean Supreme Court judgement under the governing law of the MIA 1906, the basis for recognizing the assured's pre-and post-contractual duty of disclosure is separate, and the only important matters to be notified by the assured after the conclusion of the insurance contract are those that are "relevant" and "material circumstances" that are "relevant" to the matter in question after the conclusion of the insurance contract.

• 한국중재학회지:중재연구
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• 제19권1호
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• pp.147-169
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• 2009

This paper deals with disputes incurred from the CISG provisions in relation with the conformity of goods with a view to finding the general way of approach made by the court and arbitration tribunal in the case laws for the interpretation of CISG based on 6(six) cases thereon. Throughout this study, it has been noted that the German Supreme Court devoted most in creating the general principle of CISG interpretation in relation with national compulsory law of regulation applicable on the conformity of goods. It was New Zealand mussels case in which the German supreme court decided that the exporting country's compulsory law of regulation would be applied in determining the conformity of goods. Furthermore, German supreme court added that CISG does not place an obligation on the exporter to supply goods, which conform to all statutory or other public provisions in force in the import state unless the same provisions exist in the export State as well, or the importer informed the exporter about such provisions existing in the import state, or the exporter had knowledge of the provisions due to special circumstances. It is stipulated in CISG that the goods conform with contract if they are fit for the purpose for which goods of the same description would ordinarily be used. When questions arise concerning matters governed by the CISG that are not expressly defined in the CISG, the question is to be settled in conformity with general principles on which the convention is based. Only when such a general principle cannot be found may the tribunal turn to other sources such as UNIDROIT Principles, Principles of European Contract Law and Lex Mercatoria, etc. Interpretation of CISG should be autonomous, in the sense that it should not depend on principles and concepts derived from any national legal system. Even where a CISG rule is directly inspired by domestic law, the court should not fall back on its domestic law, but interpret the rule by reference to the CISG with a view to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade.

• 한국가금학회지
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• 제11권1호
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• pp.33-39
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• 1984

The pattern of economic integration in the broiler industry can be grouped into three categories; 1) non-integration, 2) quasi-integration and 3) complete-integration. It is general to see that the non-integration is quite common under the market conditions of perfect competition, whereas the complete integration is more preferable in the imperfect competition. The quasi-integration, however, exists at all phases where the complete integration is not fully formed and implemented, but the non-integration has begun to alter its nature into integrated structure. The broiler industry in Korea has been characterized with the typically non-integrated independent operation, resulting in considerable price fluctuation and unstable industry as a whole. As a means of solving out the problem stemed from the non-integrated, growers and agribusinessmen involved in broiler industry have tended to develope the regular customer relationship prevailed between two parties. In fact, it has been practiced for years that most growers have been dealt with factor suppliers or processors on a regular basis for advantages of better price and quality, useful information, management help and so forth. Under the customary transaction, no formal contract has been made due to simple buyers and sellers relations, not like the one used to be performed in the form of contractual agreement. The broiler industry realizes the direction to go ahead toward the formal arrangement of integrated system from current regular transactions. As more Vowers, suppliers and processors recognize the necessity of it, the non-integrated industry appears to become the partially integrated by developing the existing customer relationship in such a way that functions of integrators are. further expanded and better organized. As a result, a type of quasi-integration started to show up by an integrator dominated in the field of hatching, feedmilling, dressing and by a grower's coop, It is concluded, therefore, that the evolution of quasi-integration in Korea's broiler industry is continuously taking place, implying the close approach to the completely integrated broiler production and marketing system.

• 한국중재학회지:중재연구
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• 제23권4호
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• pp.3-27
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• 2013

Overriding Mandatory rules are laws that purport to apply irrespective of the law chosen by the parties to govern their contractual relations. This article examines their role and applicability in international arbitration. The overriding mandatory rules pose a complex and continuing problem for arbitrators because they put the interests of states and parties in direct competition. When a law says that arbitrators must apply it, yet the parties' contract excludes it, what should the arbitrators do? Where should their allegiance lie? The answer depends on the underlying nature of arbitration - and since that can be legitimately conceptualized in different ways, a principled approach to overriding mandatory rules seems to be impossible to provide. Nevertheless, a practical solution is required, because there were European cases in which courts voided valid arbitration agreements made, reasoning that arbitrators certainly would not apply and/or take into account its overriding mandatory rules of indemnity right granted to commercial agent and distributor in Europe. Therefore, this paper first examines status of overriding mandatory rules of another law in international litigation and then explores any possibility of application of overriding mandatory rules of another law in international commercial arbitration. With this analysis, the author reaches into a conclusion that the arbitrator should and/or take into account overriding mandatory rules of another law, yet should limit to them of the country where characteristic performance is made under the contract.