• 무역상무연구
• /
• 제43권
• /
• pp.371-393
• /
• 2009

The biggest issue of the current international maritime transport is that EU had decided to apply the Competition Law about Shipping Conference since 2008 and UNCITRAL Convention which is the substitute of international rules related with existing maritime transport passed UN General Assembly. This movement indicates that international rules of international maritime transport are not focusing on shipping companies or forwarders anymore but consignors. According to the current circumstances, it is time for us to convert existing shipping companies and forwarders centered rules system into consignors centered international rules system as well. Thus, this study has compared and analyzed between each country's law of Shipping Conference and Korean governing law, Ocean Shipping Act.

• 한국중재학회지:중재연구
• /
• 제16권2호
• /
• pp.151-182
• /
• 2006

The International Institute for the Unification of Private Law (UNIDROIT) established UNIDROIT principles, which could be applicable as international unified rules. The UNIDROIT Principles plays the role of interpreting and complementing CISG and functions as a law applicable to international commercial disputes. As shown by cases of practical application so far, the principles are expected to be applied frequently to international commercial arbitration in the future. In the situation that there is no internationally unified judicature, it is necessary to promote rational dispute resolution and legal stability through arbitration by adopting the UNIDROIT Principles of Lex Mercatoria as a governing law of international commercial contracts. In conclusion, UNIDROIT principles, along with CISG, are expected to playa great role as the applicable law of international commercial contracts and as standards for resolving international commercial disputes.

• 무역상무연구
• /
• 제63권
• /
• pp.63-88
• /
• 2014

The culpa in contrahendo is a doctrine that "damages should be recoverable against the party whose blameworthy conduct during negotiations for a contract brought about its invalidity or prevented its perfection". In China, Chinese Civil law gradually adopted Culpa in Contrahendo under the former 'economic contract law' and the 'general rules of the civil law', then the legal system of culpa in contrahendo was formally established under Contract Law of the People's Republic of China(CLPRC) in 1999. To put it concretely, Art. 42, 43, 58 of the Chinese Civil Law expressly establishes a culpa in contrahendo liability derived from a principle of good faith governing pre-contractual negotiations. however, in general, culpa in contrahendo has been recognized a independent legal liability as distinct from contractual default liability and torts liability. This article provides a general description of the characteristics of culpa in contrahendo under Chinese Contract Law, and both theoretical issues that have arisen in Chinese academics and relevant important precedent in Chinese Courts. This article also analyzed trend of judgment on precedents that the Supreme Peoples's Court of the PRC applied culpa in contrahendo.

• 한국중재학회지:중재연구
• /
• 제22권1호
• /
• pp.65-88
• /
• 2012

Even though there are some discrepancies in detail with the legal characteristic of the issuing bank's notice to the beneficiary of opening of the letter of credit, article 25 of "the Korean Private International Act(hereunder, 'KPIA')" can be applied to the legal relation between the issuing bank and the beneficiary or the negotiating bank. According to article 26 of the KPIA, if there is no agreement between the issuing bank and its opponent party as to the governing law issues, a state's law which has the closest relationship with the subject case may be applied. In the latter case, given the facts that the issuing bank plays important roles in every phasis of the sale of goods by the letter of credit, a law of place where the issuing bank's business premises is situated(the $lex$ $situs$) can be the applicable law. Meanwhile, "the Korean Supreme Court(hereunder 'KSC')" held that the beneficiary or the negotiating bank can claim any damages arising due to the refusal or deferred payment of the issuing bank, and the law which governs the above mentioned situation is the same law that is applicable to the legal relation between the issuing bank and the beneficiary or the negotiating bank. The main reason of the KSC's ruling is that the nature of the legitimate interest rate which is stated in article 3 of "the Act on Special Cases concerning Expedition etc. of Legal Proceeding(hereunder 'ASCELP')" is substantial matters, not procedural. Taking into account, however, that the main object of ASCELP lies in expedition of legal proceeding, prompt realization of people's rights and duties, and prevention of delayed legal proceeding, it is recommendable that ASCELP, instead of the law applicable to the legal relation between the issuing bank and the beneficiary or the negotiating bank, should be applied to the cases in which the malicious debtor's only and main purpose is delaying the legal proceedings. On the other hand, even if the issuing bank's duty of examination of the documents which were tendered by the beneficiary or the negotiating bank is restricted to the formality and strict conformity of the documents and not the substantiality of the documents, the issuing bank still has to examine the documents with due diligence that is required to the banks whose main business is sales of documents, not the real goods. In this regard, under the circumstances where the document lacked the regularity and/or the formality on its face because of the forgery of the document and where it was expected that an ordinary banker might have easily found any faults with the document, the issuing bank must compensate any parties for damages when it pays money without due diligence as a banker who engaged in the sales of documents.

• 항공우주정책ㆍ법학회지
• /
• 제27권2호
• /
• pp.193-209
• /
• 2012

China's airline industry is experiencing a booming development as one hand, on the other hand the incidents involving unruly behaviour on board aircraft also becomes a growing concern for the whole industry. The thesis examines the basic issues concerning the unruly behaviour, such as definition of unruly behaviour, the impact and root causes of unruly behaviour. Then it focuses on the China's legal sources governing the problem of unruly behaviour. Generally speaking, China's legislation with this respect is systematic and self-contained, except some minor shortcomings which need to be revised. Finally the thesis holds the view that the preventative measures jointly contributed by all the parties concerned are something more important than the legislation itself.

• 무역상무연구
• /
• 제51권
• /
• pp.101-131
• /
• 2011

The Governing Council of UNIDROIT at its 90th session adopted on 10 May 2011 the third edition of the Principles of International Commercial Contracts("UNIDROIT Principles 2010"). The UNIDROIT Principles of International Commercial Contracts first published in 1994 and in a second edition in 2004, are taken by legislators worldwide as a model for contract law reform and increasingly used in international contracting and arbitration practice, as well as by the courts to interpret and supplement the applicable domestic law. The UNIDROIT Principles are particularly useful to parties when negotiating and drafting international contracts. The new edition of the Principles, UNIDROIT Principles 2010, prepared by a group of experts from all over the world including representatives of numerous international organizations and arbitration centers. The UNIDROIT Principles 2010 contain new provisions on restitution in case of failed contracts, illegality, conditions, and plurality of obligors and obligees, while with respect to the text of the 2004 edition the only significant changes made relate to the Comments to Article 1.4.

• Steel and Composite Structures
• /
• 제37권5호
• /
• pp.621-632
• /
• 2020

This research deals with the study of vibrational behavior of armchair and zigzag single-walled carbon nanotubes invoking extended Love shell theory. The effects of different physical and material parameters on the fundamental frequencies are investigated. By using volume fraction for power law index, the fundamental natural frequency spectra for two forms of single-walled carbon nanotubes are calculated. The influence of frequencies against length-to-diameter ratios with varying power law index are investigated in detail for these tubes. To discretize the governing equation in eigen-value form, wave propagation approach is developed. Complex exponential functions have been used and the axial model depends on boundary condition that has been described at the edges of carbon nanotubes to calculate the axial modal dependence. Computer software MATLAB is utilized for the frequencies of single-walled carbon nanotubes and current results shows a good stability with comparison of other studies.

• 무역상무연구
• /
• 제69권
• /
• pp.239-259
• /
• 2016

An increasing number of transactions in the bilateral trade between Korea and China rely on collection and remittance, resulting in an increase in exporters' demand for trade financing. Therefore, there is a need to vitalize forfaiting transactions using drafts or promissory notes, which are based on the collections. In the forfaiting transactions, exporters transfer a payment claim to forfaiters on a non-recourse basis through a without recourse endorsement. However, forfaiters do not know importers' creditworthiness and ability to repay drafts or promissory notes; thus, they need a bank aval as a means of credit support. In forfaiting using aval, the drafts or promissory notes are transferred internationally. However, there is no internationally unified law that regulates drafts and promissory notes, and the governing laws related to such drafts and promissory notes do not accept the "principle of party autonomy." Therefore, there is no other choice but to apply the laws of a certain country, in the event of any dispute relating to such drafts or promissory notes. This paper examined forfaiting using aval from the comparative law perspective, focusing on the "Law of China on Negotiable Instruments." The results of this study may to provide businesses involved in international trade with practical guidance and assistance when using forfaiting with aval, especially in trade with China.

• Journal of Korea Trade
• /
• 제27권3호
• /
• pp.43-64
• /
• 2023

Purpose - This paper studies whether CISG can be a suitable governing law for pure service contracts. When CISG was first drafted, there was little disagreement on the fact that contracts for the sale of goods and those for the provision of services were two different types of contract. Based on this understanding, CISG explicitly provides that the Convention will apply to contracts where the preponderant part of the contractual obligation is on the sale of goods, not services. However, as more sales transactions have come to include more elements of services, mainly due to the advancement of the IoT industry, the distinction between goods and services became more blurred. Based on the observation of recent changes, some scholars even argue that such a change supports the applicability and suitability of CISG to even pure service contracts. The purpose of this paper is to critically analyze and evaluate their argument. Design/methodology - This paper focuses on two separate but related issues: CISG's 'applicability' and 'suitability' to service contracts. For the first issue, this paper will examine the rules of interpretation of international treaties under the Vienna Convention on the Law of Treaties of 1969, and will apply its rules to find the proper answer. For the second issue, this paper will perform logical and empirical analyses on the reasoning employed by scholars claiming the suitability of CISG to service contracts. Findings - This paper concludes that CISG does not, and should not, apply to pure service contracts. The argument that CISG applies to pure service contracts directly contravenes Article 3(2) of the Convention, which expressly states that it does not apply to a contract wherein the preponderant part of its obligation is about services rather than sales. Similarly, CISG is not a suitable governing law for pure service contracts because it aims provide rules specifically tailored to the needs of transactions of sales of goods, not services. Servitization of sales of goods transaction does not change this conclusion. Originality/value - This paper presents different views from those offered by some eminent scholars on the issue of applicability and suitability of CISG to service contracts. By doing so, it is hoped that the confusion caused in discussions so far are clarified. Hopefully, this paper can also provide practical guidance to practitioners engaged in the fields of international sales, services, and IoT industries.

• 법제연구
• /
• 제44호
• /
• pp.487-538
• /
• 2013

최근에는 지식재산권의 국제적 이용이 보편화되면서 라이센스 계약 관련 분쟁에 있어 다국적 요소가 개입되는 경우가 많아 실제 분쟁의 해결에 있어서도 준거법의 결정이 가장 첨예한 쟁점이 되고 있다. 특히 2011년 7월 한-EU FTA가 발효됨에 따라 우리나라와 유럽 각국 사이에 경제적 사회적 교류가 활발해지면서 그로 인한 법적 분쟁 또한 증가할 것으로 예상된다. 이러한 상황을 고려할 때 국제적 지식재산권 이용 계약과 관련하여 유럽연합(EU)의 준거법 결정 원칙에 대한 연구가 필요하다. 지식재산권 라이센스 계약과 관련하여 발생하는 국제분쟁에 있어서의 준거법 결정을 위해서는 기본적으로 국제사법 원칙에 의한 유형화가 필요하며 이때 지식재산권 라이센스 계약은 그 성질상 계약의 문제로 유형화된다. 유럽연합(EU)의 경우에는 라이센스 계약상의 쟁점 판단을 위한 준거법 결정을 위하여 기본적으로 로마 I 규정(the Rome I Regulation)의 적용을 검토하여야 한다. 그런데 분쟁의 대상이 되는 계약이 체결된 시점에 따라 국제사법 일반원칙, 로마협약(1980), 로마 I 규정 등 각각의 경우에 적용되는 규범이 달라지므로 계약 체결 시점을 파악하는 것이 가장 우선되어야 하고, 이들 중 로마 I 규정은 2009년 12월 17일부터 체결된 계약에 적용된다. 계약상의 분쟁에 관한 준거법 결정에 있어서는 기본적으로 당사자의 합의에 의한 준거법의 지정이 널리 허용되지만, 당사자의 합의에 의하여 준거법을 결정할 수 없는 경우에는 국제사법 이론상 '객관적 연결 방식'에 의하여 준거법이 결정된다. 이러한 원칙을 반영하여 로마 I 규정 제4조 제1항은 계약의 유형에 따른 준거법 결정 원칙을 제시하고 있지만 지식재산권 라이센스 계약이 해당되는 규정은 없다. 결국 로마 I 규정 제4조 제2항이 검토되어야 하고 로마 I 규정 제4조 제3항에 의하여 해당 계약이 더 밀접한 관련을 가지는 국가가 있는 경우에는 이 국가의 법이 준거법으로 적용된다. 이들 규정에 의하여서도 라이센스 계약의 준거법을 결정할 수 없는 경우에는 최종적으로 로마 I 규정 제4조 제4항에 의하여 해당 계약과 가장 밀접한 관련을 가지는 국가의 법이 준거법으로 결정된다. 이러한 로마 I 규정을 중심으로 지식재산권 라이센스 계약의 준거법 결정 원칙에 대한 연구를 수행함으로써 향후 우리나라와 유럽연합 국가들이 준거법 결정의 연결점으로서 작용할 수 있는 관련 국제계약 분쟁의 해결을 위하여 보다 체계적이고 효과적인 대응책을 마련할 수 있을 것으로 생각되며, 우리나라 국제사법 규정을 적용함에 있어서도 보다 풍부한 이론적 기초를 제공할 수 있을 것으로 기대된다.