• International Commerce and Information Review
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• v.8 no.4
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• pp.105-121
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• 2006

This study is related with the judgements of our country's supremcourt against the transaction of Letter of Credit which is beneficiary's fraudulent trade deal. In this case I think to analyse the judgements and to present the basic grounds on which the judgements were established. In Letter of Credit transaction, there are the major parties, such as, beneficiary, issuing bank, or confirming bank and the other parties such as applicant, negotiating bank, advising bank and paying bank. Therefore, in this cases, the beneficiary, the French Weapons' Supplier who did not shipped the commodities, created the false Bill of Lading, let his dealing bank make payment against the documents presented by him and received the proceeds from the negotiating bank or collecting bank, thereafter was bankrupted and escaped. For the first time, even though the issuing bank conceived that the presented documents were inconsistent with the terms of L/C. it did not received the payment approval from the applicant against all the discrepancies, made the negotiating bank pay the proceeds to exporter and thereafter, delivered the documents to the applicant long after the time of the issuing bank's examination of documents. The applicant who received the documents from the issuing bank, instantly did not examine the documents and inform to the issuing bank whether he accepted the documents or not. Long time after, applicant tried to clear the goods through custom when he knew the bill of ladings were false and founded out the documents had the other discrepancies which he did not approved. As the results, the applicant, Korea Army Transportation Command claimed, that the issuing bank must refund his paid amount because issuing bank examined the documents unreasonably according to u.c.p 500 Act 13th, 14th. In spite of the applicant's claim, the issuing bank argued that it paid the proceeds of L/C reasonably after receiving the applicant's approval of an discrepancy of document, the delayed shipment, but for concerning the other discrepancies, the trivial ones, the applicant did not examined the document and noticed the discrepancies in reasonable time. Therefore the applicant sued the issuing bank for refunding it's paid proceeds of L/C. Originally, this cases were risen between Korea Exchange Bank and Korea Army Transportation Command. As result of analysing the case, the contents of the case case have had same procedure actually, but the lower courts, the district and high courts all judged the issuing bank was reasonable and did not make an error. As analysing these supreme court's judgements, the problem is that whether there are the applicant's liability of examining the documents and informing its discrepancies to the issuing bank or not, and if the applicant broke such a liabilities, it lost the right of claiming the repayment from issuing bank. Finally to say, such applicant's liabilities only must be existed in case the documents arrived to the issuing bank was delivered to the applicant within the time of the documents examination according to u.c.p 500 Act 14, d. i. But if any the documents were delivered to applicant after time of the documents examination, the applicant had not such liabilities because eventhough after those time the applicant would have informed to the issuing bank the discrepancies of documents, the issuing bank couldn't receive repayment of its paid proceeds of document from the negotiating bank. In the result after time of issuing bank's examination of documents, it is considered that there's no actual benefit to ask the applicant practice it's liability. Therefore finally to say. I concluded that the Suprem Court's judgement was much more reasonable. In the following, the judgements of the supreme court would be analysed more concretely, the basic reasons of the results be explained and the way of protecting such L/C transaction would be presented.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.20
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• pp.23-62
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• 2003

The Law amending the Conflict of Laws Act of the Republic of Korea ("Korea"), which had taken two years to prepare, was promulgated on April 7, 2001 and finally took effect as of July 1, 2001. Accordingly, the old earlier Conflict of Laws Act which was called "Seoboesabeop" in Korean ("Prior Act"Old Act) was replaced by the new Conflict of Laws Act called "Gukjesabeop" in Korean ("New Act"). In fact the Old Act Prior Act was promulgated in 1962, but it was regarded as outdated from the moment of its promulgation. However, since the Old Act because it was modeled after the chapter of the Private International Law of the Einfuehrungsgesetz zum Buergerlichen Gesetzbuch (EGBGB) of the Federal Republic of Germany ("German PIL") and the Japanese Private International Law ("Japanese PIL") which had been promulgated toward the end of the 19th century., the Old Act was viewed as outdated from the moment of its promulgation. As a result of the drastic change of the environment for international trade of which that has taken took place in parallel with the global information technology revolution on a global basis, the scope of issues to be addressed which should be resolved by the conflict of laws principles has been remarkably expanded, and various new issues of an entirely which are quite new in its type and nature have arisen been raised. In the field of conflict of laws in its narrow sense, a revolution or crisis of the traditional conflict of laws has been brought about by the advent in the United States rise of a the new methodology for of the conflict of laws, of the United States of America and in the process of overcoming the such crisis the conflict of laws of the European continent has undergone substantial changes such as the diversification of the connecting principles, the expansion of the principle of party autonomy and the consideration of the value of the substantive law to protect socio-economically weaker parties of. The Prior Act, which was based on However, with the mechanical connecting principles and contained various outdated the inappropriate provisions, the Old Act could not cope with the issues raised by the internationalization and globalization of the Korean society. Furthermore In addition, the Old Act Prior Act was regarded as insufficient in that it lacked rules on international jurisdiction to adjudicate, or international adjudicatory jurisdiction, whereas the expectation of the public was that the Conflict of Laws a Act should function as the "Basic Law of the International Legal Relationships"encompassing rules on international jurisdiction given the increase of international disputes. Furthermore the private international law has also attracted more attention from the Korean At the beginning of the new Millennium, thanks to the promulgation of the New Act, I believe that Korea has succeeded in achieving the modest goal of reflecting in the its codification substantial parts of the major developments of the private international law which the leading advanced continental European countries had achieved during the last century. The New Act has followed the approach of the traditional conflict of laws of the European continent. It is a product of the efforts to eliminate the then existing problems of the Prior Old Act and to adapt the Korean private international law regime to the standard of international conventions and national laws of advanced countries. Unlike the Prior Old Act which was heavily dependent upon the prior Japanese PIL and the prior German PIL, the New Act has been prepared by taking into full account the Rome Convention, the Swiss PIL, the new German PIL which took effect in 1986 and various conventions adopted by the Hague Conference. Therefore, the New Act has substantially reduced dependence upon the Japanese PIL and the German PIL, and has gained relatively greater universal validity. The fact that the New Act expressly declares that the determination of international jurisdiction is a matter of conflict of laws is a clear sign that it has departed from the German tradition which confines the conflict of laws principles to choice of laws rules, and moved toward a broader and more practical approach widely accepted in the area of conflict of laws. It is hoped, and I am personally confident, that the New Act will be able to achieve its intended objectives in the 21st century as the basic law for the ever-increasing legal relationships with a foreign element.

• Environmental and Resource Economics Review
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• v.32 no.1
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• pp.47-75
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• 2023

Compared to the EU, which legislates the Carbon Border Adjustment System (CBAM), the United States' carbon border adjustment policy movement is still relatively slow. Recently, however, a related bill has been proposed in the United States, and research institutes have been presenting research results on how to introduce an upstream carbon tax rather than an emission trading system and carry out carbon border adjustment based on it. Therefore, in this study, we looked at the economic and environmental effects of introducing this type of upstream carbon tax and carbon border adjustment in Korea. If an upstream carbon tax of KRW 30,000 per ton of CO₂ is applied to the net supply of domestic fossil energy, the expected carbon tax revenue is approximately KRW 22.9961 trillion, equivalent to about 5.7% of the total revenue of the Korean government of KRW 402 trillion in 2019. In addition, the carbon dioxide content of the steel sector, calculated based on the energy supply and demand status of the steel sector, which emits the most greenhouse gas emissions in Korea and has a considerable amount of overseas exports, was 106.22 million tons of CO₂. On the other hand, assuming that the upstream carbon tax of 30,000 won per ton of CO₂ embodied is directly passed on to the production cost of the steel sector, the carbon tax burden in the steel sector is estimated to reach approximately KRW 3.1865 trillion. Even after deducting KRW 1.1599 trillion in export refunds estimated by using the share of exports of steel products, the net carbon tax burden on steel products for domestic demand amounts to KRW 2.0266 trillion, which is analyzed to act as a factor in increasing the price of steel products.

• Journal of Legislation Research
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• no.55
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• pp.167-191
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• 2018

Despite international cooperation, piracy has not yet been eradicated in major waters around the world. From the perspective of South Korea, which is absolutely dependent on exporting and importing, it's a lifeline for us to secure safe maritime traffic so it is a situation we have to be vigilant about maritime safety and security. However, criminal law on punishment of piracy is still insufficient and legislative consideration is needed. Since pirates are regarded as enemies of humankind, all nations can punish pirates regardless of their damage. The international community has done its best in cooperation from hundreds of years ago to secure maritime trade through this universal jurisdiction and marine transportation in international waters which is an essential space for military activities, particularly in the Gulf of Aden, the advanced nations have dispatched fleets to combat maritime security threats through joint operations to crack down on Somali pirates. Even if universal jurisdiction is allowed for piracy in accordance with the International Convention on Human Rights and the United Nations Convention on the Law of the Sea, it is difficult to effectively deal with piracy if it not fully complied with a domestic legal system for this purpose or is stipulated as different from international regulations. In other words, universal jurisdiction corresponding to international norms and constitution of piracy should be defined in criminal law in accordance with criminal statutory law. If the punishment of pirates by unreasonably applying our criminal law without prejudice to such work can lead to diplomatic disputes in violation of the Universal Declaration of Human Rights or other international norms. In South Korea, there is no provision to explicitly prescribe piracy as a crime, but punish similar acts like piracy in criminal law and maritime safety law. However, there is a limit to effective piracy punishment because we are not fully involved in internationally accepted piracy. In this study, we critically examine the proposals of the constitutional elements of piracy, propose the legislative direction, and insist on the introduction of globalism to pirate sins.

• International Commerce and Information Review
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• v.15 no.3
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• pp.199-224
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• 2013

Section I of Chapter III ('Obligations of the Buyer') in Part III ('Sale of Goods') of the CISG consists of six articles addressing one of the fundamental buyer obligations described in article 53 of the CISG: the obligation to pay the price. Although the amount of the price that the buyer must pay is usually specified in the contract, two articles in Section I contain rules governing the amount of the price in particular special circumstances: article 55 specifies a price when one is not fixed or provided for in the contract, and article 56 specifies the way to determine the price when it is 'fixed according to the weight of the goods'. The remaining four provisions in Section I relate to the manner of paying the price: they include rules on the buyer's obligation to take steps preparatory to and to comply with formalities required for paying the price (article 54); provisions on the place of payment (article 57) and the time for payment (article 58); and an article dispensing with the need for a formal demand for payment by the seller (article 59). Especially article 53 states the principal obligations of the buyer, and serves as an introduction to the provisions of Chapter III. As the CISG does not define what constitutes a 'sale of goods', article 53, in combination with article 30, also sheds light on this matter. The principal obligations of the buyer are to pay the price for and take delivery of the goods 'as required by the contract and this CISG'. From this phrase, as well as from article six of the CISG, it follows that, where the contract provides for the performance to take place in a manner that differs from that set forth in the CISG, the parties' agreement prevails.

• International Commerce and Information Review
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• v.14 no.3
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• pp.231-251
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• 2012

The remedies available to a seller that has suffered a breach of contract by the buyer are addressed in Section III of Chapter III of Part III. The first provision in the section, 61, catalogues those remedies and authorizes an aggrieved seller to resort to them. The remaining provisions of the section address particular remedies or prerequisites to remedies. The subject matter of the current section remedies for breach of contract by the buyer obviously parallels that of Section III of Chapter II of Part III remedies for breach of contract by the seller. Many individual provisions within these sections form matched pairs. Thus 61, which catalogs the seller's remedies, which catalogs the buyer's remedies. Other provisions in the current section that have analogues in the section on buyer's remedies include 62, seller's right to require buyer's performance 63, seller's right to fix an additional period for buyer to perform and 64, seller right to avoid the contract. As was the case with the provisions on buyers' remedies, the articles governing sellers' remedies operate in conjunction with a variety of provisions outside the current section. Thus the seller's right to require performance by the buyer is subject to the rule in 28 relieving a court from the obligation to order specific performance in circumstances in which it would not do so under its own law. The authorization in 61 for a seller to claim damages for a buyer's breach operates in connection with 74-76, which specify how damages are to be measured. 49, stating when an aggrieved seller can avoid the contract, is part of a network of provisions that address avoidance, including the definition of fundamental breach, the requirement of notice of avoidance, provisions governing avoidance in certain special circumstances, measures of damages available only if the contract has been avoided and the provisions of Section V of Part III, Chapter V on effects of avoidance.

• The Korean Journal of Air & Space Law and Policy
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• v.32 no.2
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• pp.3-31
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• 2017

On 12 October 2017, the English Royal Courts of Justice delivered its decision about air carrier's compensation liability for the flight delay. In the cases the passengers suffered delays at a connecting point and, consequently, on arrival at their final destination. They claimed compensation under Regulation 261/2004 (the "Regulation"), as applied by the Court of Justice of the European Union (the "CJEU") in Sturgeon v. Condor [2009]. The principal issues were whether delays suffered by the passengers during the second leg of their respective journeys were compensable under the Regulation, whether there was jurisdiction under the Regulation and whether the right to compensation under the Regulation is, insofar as non-Community air carriers are concerned, excluded by virtue of the exclusive liability regime established under the Montreal Convention 1999. The passengers, the plaintiff, argued that the relevant delay was not that on flight 1 but that suffered at the "final destination". They maintained that there was no exercise by the EU of extraterritorial jurisdiction as the delay on flight 2 was merely relevant to the calculation of the amount of compensation due under the Regulation. The air carrier, the defendant, however argued that the only relevant flights for the purpose of calculating any delay were the first flights (flights 1) out of EU airspace, as only these flights fell within the scope of the Regulation; the connecting flights (flights 2) were not relevant since they were performed entirely outside of the EU by a non-Community carrier. Regarding the issue of what counts as a delay under the Regulation, the CJEU held previously on another precedents that the operating carrier's liability to pay compensation depends on the passenger's delay in arriving at the "final destination". It held that where the air carrier provides a passenger with more than one directly connecting flight to enable him to arrive at their destination, the flights should be taken together for the purpose of assessing whether there has been three hours' or more delay on arrival; and that in case of directly connecting flights, the final destination is the place at which the passenger is scheduled to arrive at the end of the last component flight. In addition, the Court confirmed that the Regulation applied to flights operated by non-Community carriers out of EU airspace even if flight 1 or flight 2 lands outside the EU, since the Regulation does not require that a flight must land in the EU. Accordingly, the passengers' appeal from the lower Court was allowed, while that of air carrier was dismissed. The Court has come down firmly on the side of the passengers in this legal debate. However, this result is not a great surprise considering the recent trends of EU member states' court decisions in the fields of air transport and consumer protection. The main goal of this article is to review the Court's decision and to search historical trend of air consumer protection especially in EU area.

• The Korean Journal of Air & Space Law and Policy
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• v.30 no.2
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• pp.201-248
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• 2015

In Korea the number of unlawful interference act on board aircrafts has been increased continuously according to the growth of aviation demand, and there were 55 incidents in 2000, followed by 354 incidents in 2014, and an average of 211 incidents a year over the past five years. In 1963, a number of states adopted the Convention on Offences and Certain Other Acts Committed on Board Aircraft (the Tokyo Convention 1963) as the first worldwide international legal instrument on aviation security. The Tokyo Convention took effect in 1969 and, shortly afterward, in 1970 the Convention for the Suppression of Unlawful Seizure of Aircraft(the Hague Convention 1970) was adopted, and the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation(the Montreal Convention 1971) was adopted in 1971. After 9/11 incidents in 2001, to amend and supplement the Montreal Convention 1971, the Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation(the Beijing Convention 2010) was adopted in 2010, and to supplement the Hague Convention 1970, the Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft(the Beijing Protocol 2010) was adopted in 2010. Since then, in response to increased cases of unruly behavior on board aircrafts which escalated in both severity and frequency,, the Montreal Protocol which is seen as an amendment to the Convention on Offences and Certain Other Acts Committed on Board Aircraft(the Tokyo Convention 1963) was adopted in 2014. Korea ratified the Tokyo Convention 1963, the Hague Convention 1970, the Montreal Convention 1971, the Montreal Supplementary Protocol 1988, and the Convention on the Marking of Plastic Explosive 1991 which have proven to be effective. Under the Tokyo Convention ratified in 1970, Korea further enacted the Aircraft Navigation Safety Act in 1974, as well as the Aviation Safety and Security Act that replaced the Aircraft Navigation Safety Act in August 2002. Meanwhile, the title of the Aviation Safety and Security Act was changed to the Aviation Security Act in April 2014. The Aviation Security Act is essentially an implementing legislation of the Tokyo Convention and Hague Convention. Also the language of the Aviation Security Act is generally broader than the unruly and disruptive behavior in Sections 1-3 of the model legislation in ICAO Circular 288. The Aviation Security Act has reflected the considerable parts of the implementation of national legislation under the Beijing Convention and Beijing Protocol 2010, and the Montreal Protocol 2014 that are the modernized international conventions relating to aviation security. However, in future, when these international conventions would come into effect and Korea would ratify them, the national legislation that should be amended or provided newly in the Aviation Security Act are as followings : The jurisdiction, the definition of 'in flight', the immunity from the actions against the aircraft commander, etc., the compulsory delivery of the offender by the aircraft commander, etc., the strengthening of penalty on the person breaking the law, the enlargement of application to the accomplice, and the observance of international convention. Among them, particularly the Korean legislation is silent on the scope of the jurisdiction. Therefore, in order for jurisdiction to be extended to the extra-territorial cases of unruly and disruptive offences, it is desirable that either the Aviation Security Act or the general Crime Codes should be revised. In conclusion, in order to meet the intelligent and diverse aviation threats, the Korean government should review closely the contents of international conventions relating to aviation security and the current ratification status of international conventions by each state, and make effort to improve the legislation relating to aviation security and the aviation security system for the ratification of international conventions and the implementation of national legislation under international conventions.

• Korean small business review
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• v.32 no.1
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• pp.65-87
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• 2010

With the advent of knowledge-based society, the revitalization of technological innovation type SMEs, termed "inno-biz" hereafter, has been globally recognized as a government policymakers' primary concern in strengthening national competitiveness, and much effort is being put into establishing polices of boosting the start-ups and innovation capability of SMEs. Especially, in that the inno-biz enables national economy to get vitalized by widening world markets with its superior technology, and thus, taking the initiative of extremely competitive world markets, its growth and development has greater significance. In the case of Korea, the government has been maintaining the policies since the late 1990s of stimulating the growth of SMEs as well as building various infrastructures to foster the start-ups of the SMEs such as venture businesses with high technology. In addition, since the enactment of "Innovation Promotion Law for SMEs" in 2001, the government has been accelerating the policies of prioritizing the growth and development of inno-biz. So, for the sound growth and development of Korean inno-biz, this paper intends to offer effective management strategies for SMEs and suggest proper policies for the government, by researching into the effect of technological innovation capability and technology commercialization capability as the primary business resources on business performance in Korean SMEs in the light of market information orientation. The research is carried out on Korean companies characterized as inno-biz. On the basis of OSLO manual and prior studies, the research categorizes their status. R&D capability, technology accumulation capability and technological innovation system are categorized into technological innovation capability; product development capability, manufacturing capability and marketing capability into technology commercialization capability; and increase in product competitiveness and merits for new technology and/or product development into business performance. Then the effect of each component on business performance is substantially analyzed. In addition, the mediation effect of technological innovation and technology commercialization capability on business performance is observed by the use of the market information orientation as a parameter. The following hypotheses are proposed. H1 : Technology innovation capability will positively influence business performance. H1-1 : R&D capability will positively influence product competitiveness. H1-2 : R&D capability will positively influence merits for new technology and/or product development into business performance. H1-3 : Technology accumulation capability will positively influence product competitiveness. H1-4 : Technology accumulation capability will positively influence merits for new technology and/or product development into business performance. H1-5 : Technological innovation system will positively influence product competitiveness. H1-6 : Technological innovation system will positively influence merits for new technology and/or product development into business performance. H2 : Technology commercializing capability will positively influence business performance. H2-1 : Product development capability will positively influence product competitiveness. H2-2 : Product development capability will positively influence merits for new technology and/or product development into business performance. H2-3 : Manufacturing capability will positively influence product competitiveness. H2-4 : Manufacturing capability will positively influence merits for new technology and/or product development into business performance. H2-5 : Marketing capability will positively influence product competitiveness. H2-6 : Marketing capability will positively influence merits for new technology and/or product development into business performance. H3 : Technology innovation capability will positively influence market information orientation. H3-1 : R&D capability will positively influence information generation. H3-2 : R&D capability will positively influence information diffusion. H3-3 : R&D capability will positively influence information response. H3-4 : Technology accumulation capability will positively influence information generation. H3-5 : Technology accumulation capability will positively influence information diffusion. H3-6 : Technology accumulation capability will positively influence information response. H3-7 : Technological innovation system will positively influence information generation. H3-8 : Technological innovation system will positively influence information diffusion. H3-9 : Technological innovation system will positively influence information response. H4 : Technology commercialization capability will positively influence market information orientation. H4-1 : Product development capability will positively influence information generation. H4-2 : Product development capability will positively influence information diffusion. H4-3 : Product development capability will positively influence information response. H4-4 : Manufacturing capability will positively influence information generation. H4-5 : Manufacturing capability will positively influence information diffusion. H4-6 : Manufacturing capability will positively influence information response. H4-7 : Marketing capability will positively influence information generation. H4-8 : Marketing capability will positively influence information diffusion. H4-9 : Marketing capability will positively influence information response. H5 : Market information orientation will positively influence business performance. H5-1 : Information generation will positively influence product competitiveness. H5-2 : Information generation will positively influence merits for new technology and/or product development into business performance. H5-3 : Information diffusion will positively influence product competitiveness. H5-4 : Information diffusion will positively influence merits for new technology and/or product development into business performance. H5-5 : Information response will positively influence product competitiveness. H5-6 : Information response will positively influence merits for new technology and/or product development into business performance. H6 : Market information orientation will mediate the relationship between technology innovation capability and business performance. H7 : Market information orientation will mediate the relationship between technology commercializing capability and business performance. The followings are the research results : First, as for the effect of technological innovation on business performance, the technology accumulation capability and technological innovating system have a positive effect on increase in product competitiveness and merits for new technology and/or product development, while R&D capability has little effect on business performance. Second, as for the effect of technology commercialization capability on business performance, the effect of manufacturing capability is relatively greater than that of merits for new technology and/or product development. Third, the mediation effect of market information orientation is identified to exist partially in information generation, information diffusion and information response. Judging from these results, the following analysis can be made : On Increase in product competitiveness, directly related to successful technology commercialization of technology, management capability including technological innovation system, manufacturing capability and marketing capability has a relatively strong effect. On merits for new technology and/or product development, on the other hand, capability in technological aspect including R&D capability, technology accumulation capability and product development capability has relatively strong effect. Besides, in the cast of market information orientation, the level of information diffusion within an organization plays and important role in new technology and/or product development. Also, for commercial success like increase in product competitiveness, the level of information response is primarily required. Accordingly, the following policies are suggested : First, as the effect of technological innovation capability and technology commercialization capability on business performance differs among SMEs; in order for SMEs to secure competitiveness, the government has to establish microscopic policies for SMEs which meet their needs and characteristics. Especially, the SMEs lacking in capital and labor are required to map out management strategies of focusing their resources primarily on their strengths. And the government needs to set up policies for SMEs, not from its macro-scaled standpoint, but from the selective and concentrative one that meets the needs and characteristics of respective SMEs. Second, systematic infrastructures are urgently required which lead technological success to commercial success. Namely, as technological merits at respective SME levels do not always guarantee commercial success, the government should make and effort to build systematic infrastructures including encouragement of M&A or technology trade, systematic support for protecting intellectual property, furtherance of business incubating and industrial clusters for strengthening academic-industrial network, and revitalization of technology financing, in order to make successful commercialization from technological success. Finally, the effort to innovate technology, R&D, for example, is essential to future national competitiveness, but its result is often prolonged. So the government needs continuous concern and funding for basic science, in order to maximize technological innovation capability. Indeed the government needs to examine continuously whether technological innovation capability or technological success leads satisfactorily to commercial success in market economic system. It is because, when the transition fails, it should be left to the government.