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

• 통상정보연구
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• 제15권4호
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• pp.241-265
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• 2013

은행은 오직 서류만을 기초로, 서류가 문면상 일치하는 제시인지 여부를 심사하여야 하며, 물품이나 기초거래 또는 기타 거래관련 사항들을 심사할 필요는 없다. 은행은 제시서류의 형식 충분성 정확성 진정성 위조 여부 또는 법적효력에 대하여 어떠한 의무나 책임도 지지 아니한다. 본 논문의 연구 목적은 신용장거래에서 은행의 서류 심사에 관하여 고찰하는바, 특히 국제상업회의소(ICC)가 제정한 신용장통일규칙(Uniform Customs and Practices for Documentary Credit, 2007 Revision, ICC Publication No.600)과 국제표준은행관행(International Standard Banking Practice, ISBP Publication No.745), Banking Committee의 견해 및 영국의 판례를 중심으로 연구를 진행하였다. 그동안 신용장에 대하여는 그 중요성만큼이나 다양한 분야에서 연구가 진행되어 왔으며, 특히 은행의 서류심사 기준과 요건, 서류심사표준과 불일치서류 제시에 따른 효과, 사기의 문제 및 수익자의 일치하는 제시에 따른 개설은행의 의무 등 다수의 논문이 발표되었다. 선행연구와의 차별성에 관하여, 본 논문은 은행의 서류심사 시 고려사항과 서류불일치에 따른 은행의 조치를 중심으로 UCP600 규정(UCP500과의 비교)의 해석은 물론 2013년 발행된 ISBP745와 다수의 외국판례를 분석 고찰함으로써 실무당사자들에게 필요한 사전지식과 정보를 제공하는데 의의를 두었다.

• 무역상무연구
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• 제42권
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• pp.163-186
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• 2009

On April 11, 1980, the "United Nations on Contracts for the International Sale of Goods" ("CISG") was prepared by the United Nations Commission on International Trade Law (UNCITRAL) and approved by a diplomatic conference in Vienna providing uniform law for international sales of goods. It took effect as of March 1, 2005, in Korea. It is set forth on the seller's remedies for breach by the buyer Section III (Art. 61 - 65) under the CISG. In this study, the focus is only on the seller's notice fixing additional final period for performance (Art. 63) and the right to avoid the contract (Art. 64), with examination on some relevant foreign arbitral awards rendered by the ICC and the CIETAC together. Article 63 provides that the seller may fix an additional period of time for reasonable length for performance by the buyer of his obligation. It was found from the above arbitral awards that the concept of 'reasonable length' should be decided on a case-by-case basis, given the specific circumstances in the case [Art. 63(1)]. It is provided that unless the seller has received a notice that he will not perform within the period so fixed, the seller may not, during that period, resort to any remedy for breach of contract in accordance with Article 63(2). Article 64(1) provides the means and grounds for avoidance of the contract, which can be avoided 1) when the breach of the buyer amounts to a fundamental breach of contract, or 2) when the additional period of time is fixed by the seller, unless the buyer declares that he will not perform so within the period of fixed time. As we examined in the above arbitral awards, it was held that the contract is avoided when the seller sends the final notice stating that he will avoid the contract, after the expiration of the additional period of time fixed by the seller in the ICC award. On the contrary, it was held that the contract should be deemed to be avoided exactly when the expiration of additional period noted in the avoidance notice is elapsed in the CIETAC award. Article 64(2) sets time limits for avoidance.

• 통상정보연구
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• 제18권4호
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• pp.195-217
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• 2016

국제물품매매계약에 관한 유엔협약(CISG)은 국제매매의 통일적인 법창출을 통하여 국제무역을 증진시키기 위한 국제조약이다. CISG는 상이한 체약국에 영업소를 둔 당사자간 물품매매계약에 적용된다. 일방당사자가 하나 이상의 영업소가 있는 경우, 영업소는 계약과 이행에 가장 밀접한 관련이 있는 곳이다. 그러나 영업소가 갖는 중요성에도 불구하고 CISG는 아무런 정의를 내리고 있지 않다. 영업소에 대한 정의의 부재는 당사자들의 계약에 CISG를 적용할 것인지 여부를 결정함에 있어 여러 문제들을 야기시킨다. 또한 양 당사자는 CISG 적용을 배제할 수 있다. 그러나 CISG는 당사자들이 명시적으로 배제해야하는지 혹은 묵시적으로도 가능한지를 규정하지 않고 있다. 어떻게 유효하게 CISG를 배제할 수 있는지 살펴볼 필요가 있다. 미국법에 의거하여 CISG는 자기집행조약이다. 따라서 CISG의 규정들은 국제물품매매계약에 실체법으로써 직접 적용된다. 하지만 CISG의 정치적 그리고 경제적 중요성에도 불구하고 미국법원을 이를 간과하고 있다. 본 연구는 우리 기업들의 CISG 적극적인 활용을 위하여 미국법원에서 CISG를 어떻게 인식하고, 해석 및 적용하는지를 판례를 통하여 살펴보았다.

• 무역상무연구
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• 제51권
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• pp.213-239
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• 2011

This article examines two important issues of the demand for payment by the beneficiary and the payment by the guarantor to the beneficiary under the revised Uniform Rules for Demand Guarantee (URDG) published by ICC, which are called URDG 758 and effected on July 1, 2010. Here, after first briefly defining the concept and nature of the demand for payment, this article discusses various issues surrounding the demand: By whom, where and how the demand has to be made; which documents are required in demanding the payment; how much amount can be demanded and paid; when and where the payment has to be made and which currency has to be used for the payment. The demand for payment has to be made by the beneficiary to the guarantor on or before expiry of the guarantee at the place of issuance of the guarantee unless any other place is specified in the guarantee. The demand has to be made in paper form unless the guarantee requires an electronic form. Unless otherwise expressly stipulated in the guarantee, the demand must be supported by a statement by the beneficiary indicating the applicant is in breach of the underlying contract. Also the demand must identify the guarantee under which it is made, and the time for examination by the guarantor starts on the date of identification. The demand cannot be for more than the amount available under the guarantee. When the demand is complying the guarantor must pay the amount demanded. The payment has to be made at the branch or office of the guarantor that issued the guarantee unless any other place is indicated in the guarantee. The payment has to be made in the currency specified in the guarantee, unless the guarantor is unable to make payment in that currency due to an impediment beyond its control or any illegality under the law of the place for payment. In case of "extend or pay" or "pay or extend" demands, the demand is deemed to be withdrawn if the extension is granted. But if not, the demand has to be paid without any further demand by the beneficiary.

• 한국중재학회지:중재연구
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• 제20권3호
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• pp.25-46
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• 2010

In spite of great interest and recent innovation of the legislative system in the Arbitration and other Alternative Dispute Resolution(ADR) system, In Japan there have been only a few case in which International commercial dispute was settled through the Arbitration compared to other countries. However, we can easily expect that foreign arbitral awards which need to be recognized and enforced in Japan will gradually increase and this makes it very important for us to review the Japanese legislative system regarding recognition and enforcement of foreign arbitral awards. In this paper, I focused on the relations between applicable laws(including convention) regarding recognition and enforcement of foreign arbitral awards in Japan and some issues concerning refusal of recognition and enforcement of foreign arbitral awards. Japan is a member state of several multilateral conventions concerning recognition and enforcement of foreign arbitral awards including the New York Convention of 1958 and at least 20 bilateral agreements which include provisions in relate to the recognition and enforcement of arbitral awards. Therefore there are some legal issues about the priority application between multilateral and bilateral agreements in relate to Article 7(1) of the New York Convention. In Japan, as I mentioned in this paper, there are incoherent opinions concerning this issue. To solve it substantially it would seem appropriate to build up concrete and explicit provisions concerning the application of priority between multilateral and bilateral agreements. On the other hand, in relate to the application between the New York Convention and National Law, it is necessary to take general approach regarding the priority application between Convention (Treaty) and National Law, considering the national application of conventions under the Constitutional System of each country. Among the grounds for non-recognition/enforcement, there are the ones that are decided under the law of the requested country, for instance, arbitrability and public policy. It would therefore be possible that some foreign arbitral awards would not be recognized in Japan especially relating to the arbitrability because its scope in Japan is not so large. Regarding the enforcement of awards annulled in their place of origin, some positive opinions in recent Japanese legal discussions, say that annulled awards should be enforced as a counter strategy of developed countries and judiciary discretion of the requested country would be needed. As mentioned in this paper, the recognition and enforcement of foreign arbitral awards is closely related to judicial policy of the requested country as the recognition and enforcement of foreign judgment is. Even though there existed uniform rules on recognition and enforcement of foreign arbitral awards like the New York convention, each country has different internal legal status of conventions under its own Constitutional System and tends to interpret the provisions based in its own profit. Therefore, it is necessary to review, in the light of conflict of laws, the national legislative system including legal status of conventions of the requested countries concerning recognition and enforcement of foreign arbitral awards.

• 무역학회지
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• 제43권3호
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• pp.75-100
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• 2018

본 연구는 국제수출통제규범을 고찰하고 국내 수출통제 법제를 분석하여 문제점을 도출하고 발전방안을 제시함으로써 우리나라 수출통제제도의 발전을 도모하는데 목적이 있다. 2005년 이후 본격 시행된 국내 수출통제 제도는 법체계와 목적, 상황허가 요건, 수출통제 대상 '물품등' 등의 용어에 대한 정의와 범위, 중개허가의 실효성 및 미국 재수출통제 대응 등의 측면에서 중대한 문제를 내포하고 있다. 그 발전방안으로 현행 대외무역법령에서 수출통제 부분을 분리하여 가칭 '수출통제법'으로 입법화, 수출통제 대상을 '전략품목'으로 통일, 상황허가 요건의 명료화, 중개허가 실효성 제고를 위한 등록제 도입 및 수출통제 관련 각종 용어에 대한 정비 등을 제안한다.

• 항공우주정책ㆍ법학회지
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• 제17권
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• pp.9-28
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• 2003

1929년 바르샤바조약은 그 후속 개정조약들을 포함해 국제항공운송분야에서 70년 이상 중요한 역할을 해왔다. 동조약은 2003년 11월 4일 몬트리올조약을 대체될 예정이다. 몬트리올조약은 운송인의 책임의 범위에 있어서 많은 변화를 가져왔고 운송인이 제소될 수 있는 법원의 범위를 확대하였다. 그리고 운송인의 책임을 인정함에 있어 코드쉐어의 영향을 반영하였다. 몬트리올조약은 1920년대 국제항공운송에 있어서의 국제적 노력이 시작된 이후 가장 커다란 변화가 야기된 조약이다. 몬트리올조약은 그 동안 수많은 조약들이 채택했던 원칙들을 집대성하여 국제항공운송의 통일성을 단일조약에 체계화하였다. 바르샤바조약체계의 문제점으로 지적되었던 낮은 배상한도액이 몬트리올조약에서 상향조정되었다. 항공운송인들의 입장을 보호하기 위한 조약으로서 특성지워졌던 바르샤바조약은 이제 몬트리올조약을 통해 승객의 입장을 반영한 조약이 되었다. 한국정부가 몬트리올조약을 비준한다면 한국의 승객들은 그로 인한 이익을 향유하게 될 것이다. 몬트리올조약의 비준은 승객들과 항공사 모두의 이익이 될 것이다.

• 무역상무연구
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• 제51권
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• pp.317-358
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• 2011

The purpose of this study aims to analyse the key differences of the sea waybill and electronic B/L in the international transport documents. Sea waybills look remarkably like ordinary bills of lading. Indeed, in two important ways, they are just like bills of lading: the front of the document will near a description of the quantity and apparent condition of the goods; and the back of the document provides evidence of the terms of the contract of carriage. They differ from bills of lading in that, far from indicating that the goods described are deliverable to the order of the shipper or of the consignee, they will make it explicit that the goods are deliverable only to the consignee. Again, different carries will do thai in a variety of ways. For example, the document may call itself non-negotiable, omitting the word order from the consignee box on the front of the document, and stating explicitly that the goods will be deliverable to the consignee or his authorised representative on proper proof of identity and authorisation. The Hague-Visby Rules and Hamburg Rules give no guidance as to any right to instruct the carrier in respect of goods while they are in transit. However, in applying Article 50 of the Rotterdam Rules, in particular when applying it in the context of seawaybills, straight bills of lading or ship's delivery orders, regard would need to be had to preserve the shipper's rights under any of those three documents even after the buyer of goods covered by them has acquired rights of its own. And, the right of control is defined at Article 1.12 of the Rotterdam Rules. The right to give instruction is further limited by the terms of Article 50.1 to three particular types of instruction in respect of the goods, relating broadly to the goods, their delivery en route, and the identity of the consignee. And, the CMI formulated the CMI Uniform Rules for Sea Waybills for voluntary incorporation into any contract of carriage covered by such a document. Recognising that neither the Hague nor the Hague-Visby Rules are applicable to sea waybills, the CMI Rules provide that a contract of carriage covered by a waybill shall be governed by whichever international or national law, if any, would have been compulsorily applicable if the contract had in fact been covered by a bill of lading or similar document of title.

• International Journal of Costume and Fashion
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• 제15권1호
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• pp.39-49
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• 2015

Heavenly Kingdom was known for their strict discipline and law as well as their anti-corruption practices and for putting up unconventional ideas to rule its kingdom. They became weak as their leadership was split along with the power struggles that occurred within their kingdom. Heavenly Kingdom's style of dress also ended during this period, but their philosophy continues to influence the style of dress. Taiping rebellion was modern China's biggest internal disturbance which prior studies included political ideals, gender equality and the peasant movement. My research is to associate Heavenly Kingdom's ideas and their dress style by analyzing its relations. Their form of clothing was similar to the Qing Dynasty but the same. They wanted to restore their identity of the Han(漢) while their ideology was oriented in creating a large enough military power to go against the corrupt Qing Dynasty as seen in their military uniform. This research is to analyze about Heavenly Kingdom's ideology with regard to their style of dress but because of their short existence, there are only small remains of artifacts and clothing available which limits this research. This research has to developing further research as I gather more additional data.