• 정보관리연구
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• 제37권4호
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• pp.141-159
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• 2006

논문에서는 지식재산권 문제로 특허심판소송으로 기업인들이 많은 피해를 입은 경험사례를 바탕으로 한 실태분석 결과를 나타냈다. 우리나라 기업에서 느끼는 특허소송에 대한 특허권침해와 관련하여 특허권자 및 침해자 입장에서 취해야 할 대응전략을 제시했다. 중소기업에서 특허권을 침해하는 경우, 특허권을 남용하는 경우, 영업비밀을 누설하는 경우, 직무발명을 누설하는 경우 등에 관하여 특허권자와 침해자 입장에 대한 대응책을 제시하였다.

• Asian Journal of Innovation and Policy
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• 제7권1호
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• pp.190-206
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• 2018

This article focuses on the legal systems and practice of intellectual property protection in Japan and China, including the relating civil litigation and administrative litigation procedures. The challenge of balancing the relationship between an invalidation trial and an invalid defense during the process of civil patent infringement litigation is a common issue to be solved in both Japan and China. In addition, it is quite usual that the IP products are being imported and exported across the borders due to the expansion of international trade. Accordingly, one of the most symbolic and difficult issues is how to balance the development of international trade and IP protection in each country. In other words, there is a practical issue regarding whether a parallel import of patented products is acceptable to a country or not. The key to determining this issue depends on the judgment of international exhaustion.

• 한국중재학회지:중재연구
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• 제8권1호
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• pp.123-148
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• 1998

Recently many controversies originate for varies reasons, ranging from normal market competition to honest disagreements about rights. Disputes also arise from the clash between institutions and individuals. A free society should provide many systems for resolving controversies. We think of the courts as being primary, but, of course, they are not. In Korea, and in most other parts of the world, disagreements are resolved informally, without the need for judicial intervention. Settlements are worked out privately, usually without lawyers and certainly without judges. Most of judges are finding it difficult to cope with the needs and demands of society. Many businessmen who no longer want to get involved in lawsuits, are looking for alternative methods for resolving their disputes. However, there are actually two systems, litigation and arbitration only, to resolve disputes with binding both parties concerned. Litigation emphasizes on the equity and the justice with allowing three time's judgment for the resonable resolution, and arbitration, which is not subject to appeal, stress on the economic settlement rather than justice. Arbitration process results in a final and binding decisions. Although arbitration is a voluntary procedures that is created by the parties themselves, arbitration differs from mediation and conciliation because of its binding power. Arbitration is today coming into fashion as our primary methods for settling disputes. No company wants to have its funds tied up for long periods. Many parties prefer that the decision be final, rather than facing the prospect of extended appellate litigation. Therefore, government must encourage parties to settle their disputes by arbitration instead of litigation.

• 한국중재학회지:중재연구
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• 제33권4호
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• pp.69-87
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• 2023

This study recognizes that consumers are becoming important as a subject of commerce as they change from the existing e-commerce market to the consumer-led e-commerce market, and proposes the use of consumer intervention as a remedy for consumer damage in international e-commerce disputes. In Korea, there is no separate regulation on consumer arbitration, so we will analyze the U.S. arbitration judgment, which is the most active in consumer arbitration, and examine it through the U.S. arbitration judgment so that arbitration can become active as a remedy for consumer disputes in Korea. In summary, in the event of a dispute between consumers and companies through e-commerce, consumers' preference for arbitration was confirmed through repeated collection of opinions without coercion. It is necessary to revitalize arbitration in Korea to protect consumers through arbitration rather than litigation and to resolve disputes through active alternative dispute resolution as a solution to disputes in e-commerce, which is rapidly increasing through U.S. consumer arbitration cases. The topic of the activation of arbitration has been mentioned a lot before, but the preference for arbitration is still lower than that of litigation. However, from now on, as the appearance of existing commerce has changed to consumer-led e-commerce, it has proposed a plan to use arbitration to rescue consumers from damage as consumers as buyers grow in the market.

• 한국중재학회지:중재연구
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• 제34권1호
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• pp.3-26
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• 2024

"Arbitration" is a procedure to settle a dispute over property rights or disputes based on non-property rights that the parties can resolve through a reconciliation, not by a judgment of a court, but by an award of an arbitrator, and is a kind of Alternative Dispute Resolution(ADR). Arbitration is the most representative and efficient ADR system in many fields, so by activating it, disputes can be resolved smoothly and ultimately, and social costs caused by a heavy increase in lawsuit can be reduced. Arbitration costs are often evaluated as 'cheap', but in reality, they can be similar to or exceed litigation costs. Nevertheless, unlike the Civil Procedure Act, which stipulates the litigation aid system for those who are hard to pay litigation costs, the Arbitration Act or the Arbitration Industry Promotion Act does not have the arbitration aid system for those who are hard to pay arbitration costs. However, considering ① the utility of arbitration compared to other dispute resolution procedures, such as litigation, ② the possibility of resolving trial delays through vitalizing arbitration, ③ the need to guarantee access to arbitration, ④ the feasibility of revitalizing arbitration by the arbitration aid system, it is necessary to introduce the Arbitration Aid System. To explain the details of the Arbitration Aid System, a person who intends to apply for arbitration or a party who continues arbitration could be the applicant. Regarding the judge, this paper suggests the establishment of a council for arbitration aid to prevent the possibility of prejudgment by the arbitral tribunal. Also, if the council accepts the application for arbitration aid, it would be appropriate for the arbitral tribunal to determine the allocation of arbitration costs considering the decision of the council and to include it into arbitral awards.

• 한국중재학회지:중재연구
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• 제13권1호
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• pp.169-205
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• 2003

Arbitration means the procedure that a party inquires a third party arbitrator for a resolution on the dispute on certain matters of interest to follow through with the commitment of the arbitration, and a series of procedures performed by the arbitrator of the Korean Commercial Arbitration Board. Arbitration is implemented in accordance with the procedure determined by the Arbitration Act and Arbitration Regulations. In the event the parties reach to the reconciliation during the process of arbitration, the reconciliation is recorded in the form of arbitration award(decision), and in the event a reconciliation is not made, the arbitrator shall make the decision on the particular case. The arbitration award(decision) for reconciliation during the arbitration procedure (Article 31 of Arbitration Act, hereinafter referred to as the 'Act') or the mediation under the Arbitration Regulation of the Korean Commercial Arbitration Board (Article 18 of the Arbitration Regulations) shall have the same effectiveness with the decision rendered by a court that, in the event a party does not perform the obligation, the enforcement document is rendered under the Rules on Enforcement Document on Mediation Statement of various dispute resolution committees of the Supreme Court to carry out the compulsory enforcement. However, in the event that the party to take on the obligation to perform under the arbitration award (decision) rendered by the arbitrator (Article 32 of the Act) does not perform without due cause, a separate enforcement decision in accordance with the procedure determined under the Civil Enforcement Act shall be obtained since the arbitration award(decision) cannot be the basis of enforcement under the Civil Enforcement Act. And, in order to enforce the judgment compulsorily in accordance with the regulations under the Civil Enforcement Act under the foreign arbitration judgment (Article 39 of the A.1), it shall fulfill the requirement determined under the Civil Litigation Act (article 217 of Civil Litigation Act) and shall obtain a separate enforcement decision in accordance with the procedure determined under the Civil Enforcement Act (Article 26 and Article 27 of Civil Enforcement Act) since the arbitration judgment of foreign country shall not be based on enforcement under the Civil Enforcement Act. It may be the issue of legislation not to recognize the arbitration award(decision) as a source of enforcement right, and provide the compulsive enforcement by recognizing it for enforcement right after obtaining the enforcement document with the decision of a court, however, not recognizing the arbitration award(decision) as the source of enforcement right is against Clause 3 of Article 31 of the Act, provisions of Article 35, Article 38 and Article 39 that recognized the validity of arbitration as equal to the final judgment of a court, and the definition that the enforcement decision of a court shall require the in compulsory enforcement under Clause 1 of Article 37 of the Act which clearly is a conflict of principle as well. Anyhow, in order to enforce the arbitration award(decision) mandatorily, the party shall bring the litigation of enforcement decision claim to the court, and the court shall deliberate with the same procedure with general civil cases under the Civil Litigation Act. During the deliberation, the party obligated under the arbitration award(decision) intended to not to undertake the obligation and delay it raises the claim and suspend the enforcement of cancelling the arbitration award(decision) on the applicable arbitration decision within 3 months from the date of receiving the authentic copy of the arbitration award(decision) or the date of receiving the authentic copy of correction, interpretation or additional decision under the Regulation of Article 34 of the Act (Clause 3 of Article 36 of the Act). This legislation to delay the sentencing of the enforcement and then to sentence the enforcement decision brings the difficulties to a party to litigation costs and time for compulsory enforcement where there is a requirement of an urgency. With the most of cases for arbitration being the special field to make the decision only with the specialized knowledge that the arbitrator shall be the specialists who have appropriate knowledge of the system and render the most reasonable and fair decision for the arbitration. However, going through the second review by a court would be most important, irreparable and serious factor to interfere with the activation of the arbitration system. The only way to activate the arbitration system that failed to secure the practicality due to such a factor, is to revise the Arbitration Act and Arbitration Regulations so that the arbitration decision shall have the right to enforce under the Rules on Enforcement Document on Mediation Statement of various dispute resolution committees of the Supreme Court.

• 한국중재학회지:중재연구
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• 제17권2호
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• pp.3-21
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• 2007

Arbitration is a private and contractual means of dispute resolution. As a creature of contract, any particular arbitration owes its existence-and attendant limitations-to an arbitral agreement. This means that, in practice, the parties select their own judges, forum, and rules. By agreeing to arbitration, parties hope to achieve several goals. And arbitration has proven to be quicker, cheaper, and more predictable than litigation as a means of resolving many types of claims. As a primary method of conflict resolution, it is now worthwhile to consider carefully any procedural mechanism designed to promote the central aims of this alternative to litigation. It is helpful to frame any particular analysis according to (1) the type of decision for which preclusive effect is sought (arbitral award or court judgment) and (2) the type of subsequent proceeding in which preclusion is sought (an arbitration or a litigation). Res judicata may well bar litigation of that claim between the parties, but non-parties (affiliates or individuals) will not benefit from this bar unless the arbitral tribunal makes findings sufficient to satisfy the elements of collateral estoppel. The final permutation to be considered involves an arbitral award's preclusive effect on a subsequent arbitration. Whether a prior court decision should preclude issues or claims in a subsequent arbitration presents the easiest case for analysis. It is the easiest primarily because there is generally little room to debate whether adequate procedures were followed in a litigation. That is, one can safely assume that the rules of evidence and the rules of civil procedure were followed and that formal records sufficiently memorialize both the proceeding itself and the ultimate decision. Procedural regularity is mentioned not necessarily because it is an analytic tool, but because so many jurists and scholars see it as an impediment to the application of preclusionary doctrines.

• Archives of Plastic Surgery
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• 제43권5호
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• pp.402-410
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• 2016

Background In an increasing number of lawsuits doctors lose, despite providing preoperative patient education, because of failure to prove informed consent. We analyzed judicial precedents associated with insufficient informed consent to identify judicial factors and trends related to aesthetic surgery medical litigation. Methods We collected data from civil trials between 1995 and 2015 that were related to aesthetic surgery and resulted in findings of insufficient informed consent. Based on these data, we analyzed the lawsuits, including the distribution of surgeries, dissatisfactions, litigation expenses, and relationship to informed consent. Results Cases were found involving the following types of surgery: facial rejuvenation (38 cases), facial contouring surgery (27 cases), mammoplasty (16 cases), blepharoplasty (29 cases), rhinoplasty (21 cases), body-contouring surgery (15 cases), and breast reconstruction (2 cases). Common reasons for postoperative dissatisfaction were deformities (22%), scars (17%), asymmetry (14%), and infections (6%). Most of the malpractice lawsuits occurred in Seoul (population 10 million people; 54% of total plastic surgeons) and in primary-level local clinics (113 cases, 82.5%). In cases in which only invalid informed consent was recognized, the average amount of consolation money was KRW 9,107,143 (USD 8438). In cases in which both violation of non-malfeasance and invalid informed consent were recognized, the average amount of consolation money was KRW 12,741,857 (USD 11,806), corresponding to 38.6% of the amount of the judgment. Conclusions Surgeons should pay special attention to obtaining informed consent, because it is a double-edged sword; it has clinical purposes for doctors and patients but may also be a litigation strategy for lawyers.

• 기록학연구
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• 제43호
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• pp.103-145
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• 2015

민사 소송은 개인들 간의 분쟁과 이해 충돌을 국가의 재판권에 의하여 법률적 또는 강제적으로 해결 조정을 받는 절차이다. 이를 통하여 사회구성원들은 정치 경제 사회 문화적 행위를 보장받는다. 그러므로 민사재판 판결문은 당시 시대상과 사회의 통치구조 및 그 시대를 살아간 국민들의 정체성을 이해할 수 있는 기록물로서 그 역사적 의미가 크다. 이 민사재판 판결문의 가치에 주목하여 갑오 대한제국기 민사재판 판결문이 생산된 제도적 측면과 양적 현황을 파악하였다. 나아가 판결문을 소장 보존하고 있는 국가기록원과 법원기록보존소(법원도서관)의 관리실태에 대해 살펴보고, 시사점 및 문제점을 도출하여 이에 따른 해결책으로 열람 활용방안을 제안하는 것을 본 논문의 목적으로 하였다.

• 의료법학
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• 제9권1호
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• pp.57-127
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• 2008

In medical malpractice lawsuits, negligence is generally defined as conduct that is culpable because it falls short of what a reasonable person would do to protect another individual from a foreseeable risks of harm. Thus, the essence of negligence is a breach of obligations to be attentive, and the breach of obligations to be is negligence. However, whether negligence is or not depends on time, place, litigation forms and the judge since the meaning of negligence is wavering on the basis of abstract and normative judgment. In this thesis, what is medical negligence, a breach of obligations of attention for a doctor in medical malpractice lawsuits, would be it further enacted that doctors have the responsibility to protect the patients as a subordinate duty due to a principle of faith and sincerity besides the main duty for medical contract-performance since the suit is a litigation form to be based on responsibilities of experts, especially doctors, though having factors that are non-contractual as a trait for medical treatment. Further on the concept, when the plaintiff asserts and proves a specific fact from the recent moderation of the burden of proof about medical malpractices, whether the court should find a true bill in medical malpractice actually or not has been discussed.