• International Commerce and Information Review
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• v.11 no.1
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• pp.309-331
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• 2009

In 25th April. 2008, the Korea legislature gave advance notice on the Revision Bill of Commercial Law in Insurance Division in partial, one of which is the principle of utmost good faith to be codified in accordance with the effectuation of the Revision Bill enforcement. For this, even though the disclosure duty is not included in the Revision Bill, it should also be discussed in relation to the principle of utmost good faith because it is based upon the principle of utmost good faith and forms a part of utmost good faith. In Marine Insurance industry in Korea, there are the sections and the clauses in relation to the English governing law included in the Policies and the Clauses used in Korea and, also, they still come into effect for the Korea Courts' judgements. So. we, Korea, should carefully pay attention to the trend of English courts' leading case, academic world and insurance industry on the disclosure duty in U.K. This study is thus based upon sections 17 and 18~20 of the Marine Insurance Act 1906 and sections 651, 652 and 655 of Commercial Law in Insurance Division, which appear throughout this work. The objective of this work is to analyse the duty of disclosure on Korean and English Insurance Laws including cases cited in this work, comparing the differences resulted from the analysis of the two countries‘laws and legal cases.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.42
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• pp.67-85
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• 2009

In English Law it seems that it is essential to apply the principle of equilibrium in the contract, however, it does not seemed to apply as the general rule of the principle of contract. Especially it seems that English Court didn't pay attention to the principle of equilibrium in 18th century. If one of the party do not appeal the equilibrium of the contract, it does not make any difference even today. However the Court may cancel or withdraw the construction of contract between the parties where the principle of equilibrium is damaged by fundamental problems like just-price. In French Law it seems that they have more wide definition of the principle of equilibrium. The French Court may consider that the application of good faith is the performance of condition of the contract between the parties and has no power to relieve of one party of his expressed obligations or warranty. In German Law, it seems that the principle of good faith is fundamental to take into account interest of the parties. They may agree to supply information or not to interfere with a commercial agent regarding performance and maintenance of the contract.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.53
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• pp.207-229
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• 2012

In IP 7 and LCCP 201, Law Commission considers the insured's duty of good faith after the formation of the contract. This article intends to review and analyse the legal implications of proposals in IP 7 and LCCP 201. The results of analysis are following. First, Law Commission propose to end the remedy of avoidance under MIA 1906 section 17, because avoidance of past claims is unprincipled, impractical and unnecessarily harsh. Secondly, LC proposes that an insured who makes a fraudulent claim should forfeit the whole claim which the fraud relates, but that the fraud should not invalidate previous and legitimate claims. Thirdly, LC proposes to introduce a statutory right for the insurer to claim damages for the reasonable, foreseeable costs of investigate a fraudulent claim in specific circumstances and that damages would be limited to those cases where the insurer can show an actual, net loss. Finally, LC provisionally propose that an express fraud clause should be upheld in business insurance, whereas in consumer insurance, any term which purports to give the insurer greater rights in relation to fraudulent claims that those set out in statute would be of no effect.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.44
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• pp.257-279
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• 2009

The underlying purpose of this paper is to interest scholars in 'Trade English'. 'Trade English' has to be recognized as one area of 'International Trade' disciplines and more studies have to be carried out with more attention from the scholars. Although there are many areas to be dealt with in 'Trade English', this paper discusses about the syllabus design of 'Trade English' from an educator's point of view. First of all, this paper reviews some theoretical background researches about needs analysis and syllabus design in 'Trade English' teaching and learning as ESP. With a systematic structure under the decent syllabus, selection and sequence of contents get clear and easier. Secondly, along with the rationals based on theoretical researches, how these theories are being or can be applied to the real classroom are discussed for further studies. A different syllabus would be designed according to needs analysis. In reality, the syllabus for practitioners who are doing their jobs in International Trade areas has to be definitely different from the one for pre-practitioners who are studying in International Trade areas at the tertiary education level. Namely, different learners present different needs and different needs make up the different syllabus. In order to provide these learners with the syllabus which can address their own needs, more researches or studies have to be done in the future. Since 'Trade English' is the discipline where two areas-International Trade and English as a second/foreign language-are mixed, the researches or studies also have to be carried out collaboratively by scholars from both areas.

• Journal of English Language & Literature
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• v.57 no.5
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• pp.787-812
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• 2011

This essay aims to explore Herman Melville's recognition and resolution of the vicious link between law and violence in his posthumous Billy Budd, Sailor (1924). In order to investigate the issues, this essay refers to Freud, Benjamin, Derrida, Lacan, and Žižek, all perceptive to the uncanny affinity of law and violence. Especially, Žižek's arguments of "superego" as an embodiment of cruel and destructive violence supplementing the official law and of "love" as an ethical possibility beyond the limit of the problematic law are introduced in this study to make Melville's reflection of the inseparableness between law and violence much clearer. John Claggart and Captain Vere embody the legal (superegoic) violence. Claggart even procurs secret enjoyment, in the name of maintaining positive law. Billy Budd discloses another violence defending his justness according to natural law. However, Melville suggests the possibility of suspending the problematic tie of law/violence through "love," as portrayed at the last part of the story. The two final words from Billy and Vere, as a sort of delayed dialogue between them after the event of their secret interview before Billy's hanging, suggest that they finally distance from the obscene nightly law of superego-respectively from outward punitiveness toward Vere and from inward punishment for Vere's excessive enforcement of Billy's hanging-and identify each other's lack as their own. Their love implicated in the last words is for the real other-in Lacan's sense-who discloses the constitutive lack or incompleteness of beings and aporia of the law. This essay's examination of Melville's representations about the superegoic violence as the (im-)possible condition of law and the possibility of withdrawing from it would help us recognize Billy Budd, Sailor as the author's own last word for the possible vision of love cutting the vicious knot of law/violence.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.32
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• pp.29-56
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• 2006

This article primarily concerns the various aspects of the rules to control express terms particularly in standard form which seek to absolve either wholly or in part from the seller's liability for non-conforming goods. It describes and analyzes in detail how English law regulates such terms. In this analysis, it places the following questions; first, whether each jurisdiction treats the seller's liability for non-conformity in quality and quantity as mandatory rules, second, if it does, to what extent it is treated so and third, if not, in what way it controls the seller's attempt to exclude or restrict his liability for non-conformity in quality and quantity. In addition, it attempts to compare the rules under English law with those under Korean law and to evaluate them in light of the discipline of comparative law. In an attempt to evaluate them, it asks the question of whether a solution from one jurisdiction may facilitate the systematic development and reform of another jurisdiction. The evaluation is based upon the idea that the problems of fairness associated with the use of standard terms occur where the customer is unfairly taken by surprise due to his ignorance of the terms, or where even if he knows of the substance of the terms and objects to it, he is met with a take-it-or-leave-it situation.

• Proceedings of the Korean Institute of Navigation and Port Research Conference
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• 2007.12a
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• pp.58-59
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• 2007

The English law of ship mortgages is successor to a very long tradition. From the earliest times loans have been required to finance maritime commerce. The term "ship" describes any kind of vessel used in navigation, while the term "ship mortgage" described a method of secured financing, under which a borrower transferred its interest in ship or other property to a creditor, to secure the payment of the debt owed by the borrower or the performance of some their obligation. The shipowner (the borrower)is known as the 'mortgagor, and the person lending the money is known as the 'mortgagee'.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.49
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• pp.257-281
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• 2011

The duty of utmost good faith is found in sections 17-20 of MIA 1906. Critics of the current legal regime on the pre-contractual duty from the viewpoint of the assured, have been concentrated on two points in particular. First, the scope of the duty is so wide that it imposes too high burden on the assured. The second criticism is directed at the remedy, prescribed by the MIA 1906, s.17, against breach of the duty. This article intends to analyse the legal implications of proposals in CP 2007 for reforming pre-contractual duty of utmost good faith of business assured in English insurance contracts law and the problems of proposals. The Law Commissions are proposing four fundamental changes to meet the long-standing criticism and the results of analysis are as following. First, the Law Commissions are proposing a change in the test of constructive knowledge in relation to the duty of disclosure so that a business assured will be obliged to disclose facts which he knows or a reasonable ought to know in the circumstances. Secondly, deviating from the current legal position, the Law Commissions are proposing that if a business assured has made a misrepresentation, but the assured honestly and reasonably believe what it said to be true, the insurer should not have any remedy due to the misrepresentation. The proposal is designed to protect the reasonable expectations of business assured at the pre-contractual stage. Thirdly, the Law Commissions are proposing to change the test for materiality by replacing the "prudent insurer" test by a "reasonable assured" test. The proposed test would focus on the question of what a reasonable assured in the circumstances would think what is relevant to the judgment of the insurer. Finally, the Law Commissions are proposing flexible remedies in case of the breach of the duty. The Law Commissions are proposing no remedy when an assured is acting honestly and reasonably, while avoidance in case of dishonesty. On the other hand, The Law Commissions seem to have an intention to introduce a compensatory remedy in case of negligent breach of the duty.

• Journal of the Korean Institute of Navigation
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• v.7 no.1
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• pp.83-103
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• 1983

The duty of disclosure it is a preliminary requirement to effect marine insurance contract between the assured and the underwriter. The contract of Marine Insurance is called a uberrimae fidei contract, the assured, therefore, in the law of marine insurance, shall communicate a material circumstances to the latter before the policy to be effected. As growing the maritime industries in Korea, there is forming a larger marine insurance market, accordingly, and having a wide relation with the practice of the marine insurance in England. It means that the most of the legal theories of the marine insurance would be adopted by the English Marine Insurance Case Law and M.I.A., 1906. From the viewpoint of the said this author has tried out to study what is the duty of disclosure of the marine insurance based upon the English Marine Case Law.

• Korea Trade Review
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• v.44 no.6
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• pp.1-21
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• 2019

In the case of a sea transport contract, the decision of the governing law, together with the choice of lex fori, shall be a legal issue in all legal disputes involving damage to the goods. In sea transport contracts, a paramount clause is often established in conjunction with the governing law clause, which can lead to conflict between these two clauses. Most B/L's back clauses contain a paramount clause that provides that the Hague Rules, Hague-Visby Rules, or foreign laws that prevail over other provisions of the terms. The Hague Rules and the Hague-Visby Rules, however, set different standards regarding the extent of the sea carrier's liability. Therefore, in the interpretation of ground conditions, it is an important question whether the Hague Rules or the Hague-Visby Rules are applied or whether each rule is applied as a law. For example, the paramount clause in the Superior Pescadores case was problematic in the interpretation of the term 'Hague Rules.' In this case, the English Court held that the expression 'Hague Rules' could be used to mean the Hague-Visby Rules, and not exclusively the Hague Rules. Therefore, the Hague-Visby Rules were applied in the judgment of this case, which suggests that this case can be a valuable precedent in future legal matters.