• Journal of Arbitration Studies
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• v.8 no.1
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• pp.323-352
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• 1998

Documentary letters of credit including standby letters of credit are governed by the independence or abstraction rule and the doctrine of strict compliance. Since the former rule requires the issuing bank to honor the drafts regardless of the defective performance of the underlying contract, the applicant(the customer) will be without a remedy if he is unable to make himself whole by litigation on the underlying contract. Therefore, the applicant is exposed to a risk much higher than in the commercial letters of credit. The Uniform Customs and Practice for Documentary Credit(UCP) has no provisions allowing legal relief for the applicant on the abuse of L/C by unscrupulous beneficiary, but UCC ${\S}5-114$ has provision allowing injunctive relief for the applicant. In this paper, I attempted to clarify certain standards of injunctive relief available for the customer in the credit. When there is fraud in the L/C transaction by any of the parties concerned, we must weigh the principle of independence or abstraction and the fraud rules. According to banking practice and judicial precedence, we need not keep the principle of independence and abstaction even in fraudulent transaction and the bona fide sufferer must be protected. The purpose of this paper is to review the studies of Fraud rule and the Injunction and to suggest the applicable standards for the Injunction therory under letters of credit. Specially this paper analysed the following ; (1) the guideline for the fraud (exception) rule to the autonomy principle, (2) the appilcable standards of the Injunction, and (3) the implications on parties concerned in letters of credit transaction. Conclusively, the Injunction should be granted if (1) there is clear proof of fraud (2) the fraud constitutes fraudulent abuse if the independent purpose of L/C (3) irreparble injury might follow if injunction is not granted or the recovery of damages would be seriously endangered.

• Journal of Arbitration Studies
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• v.19 no.3
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• pp.161-178
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• 2009

This article focuses on the enforceability of arbitration agreements m the dispute of standby letter of credit, especially with the case analysis of the leading case from the U.S. Bankruptcy Court. In Nova Hut a.s. v. Kaiser Group International Inc. case, while the underlying contract contained an arbitration clause, a guarantee to assure contractor's performance did not contain an arbitration clause. Nova Hut drew on the standby for the Contractor's failure to deliver contractual obligations. Against the Kaiser's action under US Bankruptcy law, Nova Hut moved to stay the proceedings pending arbitration, to compel arbitration, and to dismiss the complaint. The US Bankruptcy Court for the District of Delaware denied Nova Hut's motions. On appeal, Kaiser argued that it was not subject to arbitration since it was not a party to the contract. It also argued that Nova Hut had waived its right to arbitration by filing a proof of claim in the bankruptcy proceeding and commencing legal actions in other countries. The appeals court noted that in order to avoid arbitration on those grounds prejudice must be shown. It indicated that because there was no long delay in requesting arbitration and no discovery conducted m the course of litigation, the Kaiser could not demonstrate actual prejudice on the part of Owner. In light of public policy favoring arbitration, the nature of the claims in the parties' agreements, Kaiser's conduct in embracing the agreements, and their expectation of benefit, the appeals court ruled that the doctrine of equitable estoppel applied in requiring the Parent to arbitrate.

• Proceedings of the Korean Institute Of Construction Engineering and Management
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• 2006.11a
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• pp.402-407
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• 2006

The small/medium sized firms have big part and affect a national economy in the world. They underestimated in market until now make big change by standing out in international market. The Korean small/medium sized firms also get out of a domestic market stagnated and try to make inroads into international market. Especially, the Korean small/medium sized construction firms have very huge potentiality in international market globalized rapidly. But, the role of these firms actually have been insignificant in international market until now. This paper tried to present the alternatives to revitalize the overseas expansion of the Korean small/medium sized construction firms which have the potentiality. It analyzed the international contract trend of advanced construction firms to classify each group by using ENR data from 1996 to 2005, and presented the new standard of the Korean small/medium sized construction firms according to international contract portion, data, and legal bases. Finally, it used the expert interview method to refer to the revitalization of making inroads into international market.

• The Korean Society of Law and Medicine
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• v.12 no.1
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• pp.257-285
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• 2011

This thesis has studied about the legal characteristic of injection of the trial drug, the position of the pharmaceutical firm as a contractor of the clinical trial, the possibility of compulsory performance of consistent injection of the trial drug, and the damage claim caused in the process of the clinical trial from the viewpoint of protecting the trial subject in the clinical trial. According to court's judgement in the United States, the lawsuit of the trial subject, although the trial subject had expected consistent injections, was dismissed because there was no direct contract between pharmaceutical and trial subject. However, Helsinki Declaration prescribe the medical research as follows. 'All patients who participated in the research should be able to use the best precaution, diagnosis, and treatment proved by the final outcome of the research'. The trial subject is entitled to demand only the pharmaceutical firm which developed and provided the trial drug, and the pharmaceutical firm has the obligation to supply the trial drug to the trial subject. Therefore, it would be not enough to protect the trial subject if the pharmaceutical firm which makes the trial drug is ruled out. In addition, especially, in case the trial drug has a constant effect with the aim of treatment, if the injection of the trial drug is suddenly stopped, the trial subject would not have the benefit of treatment by the trial drug. In this case, the best remedy against the damage is to urge a constant injection of the trial drug. Thus, in certain case, it is reasonable to consider that the pharmaceutical firm has the obligation to supply the trial drug to the trial subject constantly, and it is also necessary to compel it through effective means in case the pharmaceutical firm do not fulfill its obligation to supply the trial drug. However, as an essential prerequisite for the assertion mentioned above, it should be judged under the principle of good faith considering the concrete situation, that is, what roles the pharmaceutical firm has played.

• Health Policy and Management
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• v.22 no.3
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• pp.315-346
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• 2012

The legal relationship between patient and physician is legally equal relationship. But, in times past, patients be compelled to sign an unequal contract, substantially. Because of the imbalance between supply and demand in the health care market. Today, the law of supply and demand in the health care market is running well. And as the cognition of citizens' rights grows, the relationship between patient and physician can also get a lot of changes. Patients have the right to know the information about medical care, and to decide whether or not to get treatment including invasions against their own bodies. In other words, Doctors have an obligation to explain to their patients. If doctors did not provide patients sufficient explanation or information, it violates the right of patients. This is a tort, or a breach of contract. To improve the remedy for violation of patient's right, patient is able to be protected by status as consumer. If patient is a kind of consumer in terms of medical consumption, he/she as consumer can enjoy supplementally the consumer's right. The patient as a consumer can exercise now a consumer's right as a constitutional right. In addition, with respect to consumer's rights, Framework Act on Consumers was enacted. This Act is based on constitutional provisions of Article 124 and the Act can be seen as a law that embodies consumer right because the provision of the constitutional law delegates specific contents. In the health care field, patients need to win recognition the statue of the consumer to hold the sovereignty of the consumer. In particular, if patients are consumers, they may be able to make good use of the quickly and efficiently collective dispute resolution and association lawsuit to rescue their damage, the Alternative Dispute Resolution(ADR) of Framework Act on Consumers.

• KSII Transactions on Internet and Information Systems (TIIS)
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• v.16 no.2
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• pp.445-466
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• 2022

As everything linking to the internet, people can subscribe to various services from a service provider to facilitate their lives through the Internet of Things (IoT). An obligatory thing for the service provider is that they should push the service data safely and timely to multiple IoT terminal devices regularly after the IoT devices accomplishing the service subscription. In order to control the service message received by the legal devices as while as keep the confidentiality of the data, the public key encryption algorithm is utilized. While the existing public encryption algorithms for push service are too complicated for IoT devices, and almost of the current subscription schemes based on push mode are relying on centralized organization which may suffer from centralized entity corruption or single point of failure. To address these issues, we design a secure subscription-push service scheme based on blockchain and edge computing in this article, which is decentralized with secure architecture for the subscription and push of service. Furthermore, inspired by broadcast encryption and multicast encryption, a new encryption algorithm is designed to manage the permissions of IoT devices together with smart contract, and to protect the confidentiality of push messages, which is suitable for IoT devices. The edge computing nodes, in the new system architecture, maintain the blockchain to ensure the impartiality and traceability of service subscriptions and push messages, meanwhile undertake some calculations for IoT devices with limited computing power. The legalities of subscription services are guaranteed by verifying subscription tags on the smart contract. Lastly, the analysis indicates that the scheme is reliable, and the proposed encryption algorithm is safe and efficient.

• (The) Research of the performance art and culture
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• no.23
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• pp.213-243
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• 2011

Under copyright law, the writer' work is clearly protected, and any later producer who wishes to mount a copyrighted play or musical must obtain a license from the author, which may involve sharing royalties from the subsequent production with the author. Generally, directors do not explicitly enjoy similar legal protection for their creative input into a finished production. This Article explores the unsettled issue of copyright protection for stage direction in America. Firstly, it presents a few lawsuits on behalf of stage direction issues. It examines whether stage directions are possible for copyright protection through some pieces of articles. It looks at the contract form made by SSDC which is national labor union representing stage directors and choreographers. After all, I insist we acknowledge the copyright law and the value of copyright protection for stage directors' creative input into a performing arts production. We should devise the contract forms for stage directors which are to be applicable for each situations of productions.

• Journal of Distribution Science
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• v.12 no.4
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• pp.5-9
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• 2014

Purpose - The purpose of this study was to compare and contrast the applicability and effectiveness of both teukyakmeip contracts of Korea and consignment contracts of the United State to demonstrate the effectiveness and practicability of teukyakmeip in Korea. These are popular contract agreements between large retailers and their suppliers and vendors. In recent years, teukyakmeip was critically examined and scrutinized by the politicians, the media, and the public of Korea. Consequently, this paper focusesheavily on identifying and analyzing different types of contract agreements between large retailers and their suppliers that currently exist in Korea and compares and contrasts those analyzed contract agreements with teukyakmeip. The article also comparesand contrasts teukyakmeip with the consignment agreements of the United States to identify similarities and differences. Research design, data, and methodology - This study is a descriptive study and has used personal interviews to collect and analyze the data. This study also fits the definition of the case study wherein it is entirely focused on investigating a real-life event: analyzing and examining contract agreements in the distribution industry. Both randomly selected management and vendor representatives from the three major department stores, Lotte, Hyundai, and Shinsegae, in Korea were interviewed between July and September 2013. The analysis of the consignment agreement was conducted based on existing secondary data. Results - Although the evidence of the abuse of teukyakmeip and consignment by large retailers from both countries clearly exists, the findings suggestthat both contract agreements would remain as the most relevant and effective legal contracts between large retailers and their suppliers. Based on the comparisonanalysis of teukyakmeip and consignment, both contracts indicated that suppliers are fully responsible for inventory and inventory management. If sales person is necessary for promoting special product, then suppliers are responsible for providing a sales person and their wages under both contracts. However, American department stores, those located outside urban area, tend to use their own employees to perform special product and sales promotion. The retailersare fully responsible for any interior or floor design or redesign of the retail store to accommodate the products from vendors under consignment; however, both suppliers and retailers share the cost of designing and redesigning the interior to accommodate vendors'products under teukyakmeip. Suppliers are responsible for pricing and supplying the quantity of the products under both agreements. Both contracts allow special sales commission as long as vendors agreed. Vendors use this special commissionto introduce their new products or apply market penetration strategy. Conclusions -The findings of this study showed the changing pattern of contract agreements between large retailers and their suppliers from both countries. Furthermore, this study evidently generated policy implications of teukyakmeip which recently became the major social issue in Korea and attracted many policymakers to gain political points by criticizing the teukyakmeip system and the large retailers. The findings of the study would be valuable to policy makers in making appropriate decisions and to large retailers and vendors in making beneficial agreements. The major implication of this study is that teukyakmeip and consignment agreements include very similar or almost identical characteristics, and they are popular among department stores and suppliers. The issue of abolishing teukyakmeip in Korea needs to be examined cautiously because teukyakmeip is the best one available at the moment, and the study suggests that no one benefits from abolishing this system.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.69
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• pp.261-301
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• 2016

Recently the abusive calls on on-demand bonds have been a critical issue among many engineering and construction companies in Korea. On-demand bond is referred to as an independent guarantee in the sense that the guarantee is independent from its underlying contract although it was issued based on such underlying contract. For this reason, the issuing bank is not required to and/or entitled to look into whether there really is a breach of underlying contract in relation to the call on demand-bonds. Due to this kind of principle of independence, the applicant has to run the risk of the on demand bond being called by the beneficiary without due grounds. Only where the call proves to be fraudulent or abusive in a very clear way, the issuing bank would not be obligated to pay the bond proceeds for the call on on-demand bonds. In order to prevent the issuing bank from paying the proceeds under the on-demand bond, the applicant usually files with its competent court an application for injunction prohibiting the beneficiary from calling against the issuing bank. However, it is in practice difficult for the applicant to prove the beneficiary's call on the bond to be fraudulent since the courts in almost all the jurisdictions of advanced countries require very strict and objective evidences such as the documents which were signed by the owner (beneficiary) or any other third party like the engineer. There is another way of preventing the beneficiary from calling on the bond, which is often utilized especially in the United Kingdom or Western European countries such as Germany. Based upon the underlying contract, the contractor which is at the same time the applicant of on-demand bond requests the court to order the owner (the beneficiary) not to call on the bond. In this case, there apparently seems to be no reason why the court should apply the strict fraud rule to determine whether to grant an injunction in that the underlying legal relationship was created based on a construction contract rather than a bond. However, in most jurisdictions except for United Kingdom and Singapore, the court also applies the strict fraud rule on the ground that the parties promised to make the on-demand bond issued under the construction contract. This kind of injunction is highly unlikely to be utilized on the international level because it is very difficult in normal situations to establish the international jurisdiction towards the beneficiary which will be usually located outside the jurisdiction of the relevant court. This kind of injunction ordering the owner not to call on the bond can be rendered by the arbitrator as well even though the arbitrator has no coercive power for the owner to follow it. Normally there would be no arbitral tribunal existing at the time of the bond being called. In this case, the emergency arbitrator which most of the international arbitration rules such as ICC, LCIA and SIAC, etc. adopt can be utilized. Finally, the contractor can block the issuing bank from paying the bond proceeds by way of a provisional attachment in case where it also has rights to claim some unpaid interim payments or damages. This is the preservative measure under civil law system, which the lawyers from common law system are not familiar with. As explained in this article, it is very difficult to block the issuing bank from paying in response to the bond call by the beneficiary even if the call has no valid ground under the underlying construction contract. Therefore, it is necessary for the applicants who are normally engineering and construction companies to be prudent to make on-demand bonds issued. They need to take into account the creditability of the project owner as well as trustworthiness of the judiciary system of the country where the owner is domiciled.

• Journal of the Korea Institute of Building Construction
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• v.12 no.1
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• pp.42-53
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• 2012

Lawsuits related to defects in apartment buildings involve a range of legal issues, based on which the current subjective judgment system has been established. This study aims to organize the judgment system by stage of lawsuit from a legal perspective by reviewing the factors dealt with in precedent research. The main issues at hand include assignment of obligation, the day on which the computation of exclusion period begins and the day on which the defect repair is completed. The rationality of the current subjective judgment system could be determined by reviewing the recent cases. Based on the findings of the review, the following are suggestions for improvements and complements of the system. First, the process of assignment of obligation should be systemized, and the guarantee insurance system that provides a warranty deed should be improved as well. In addition, improvements and systemization should be made to clarify the responsibilities for any defect arising from the agreements that are not stipulated on the contract, computation of abatement rate of compensation and the system by which the responsibility for the defects is completed when residents acquire ownership from rental status.