• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.51
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• pp.159-185
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• 2011

This paper is intended to discuss the controversial issue of the principles of change circumstances under the legal system of international commercial transactions. The principles of change circumstances, so called clausula rebus sic stantibus is the legal doctrine allowing for treaties to become inapplicable because of a fundamental change of circumstances. It is essentially an "escape clause" that makes an exception to the general rule of pacta sunt servanda (promises must be kept). The practical needs of international transactions differ from the established concepts of national contracts law. The purpose of this paper is to analyze the legal system and theories under the regimes of international commercial transactions such as the CISG, the PICC, and the PECL. Clausula rebus sic stantibus does not apply if the parties to a treaty had contemplated for the occurrence of the changed circumstance. It only relates to the changed circumstances that were never contemplated by the parties. This paper has shown that the hardship provisions in the CISG, PICC, PECL has similarities to each a validity defense and an excuse defense. it was provisions that CISG governs this issue in Article 79, PICC Article 6.2.1, 6.2.2, 6.2.3(in addition to Article 7.1.7), PECL Article 6.111(in addition to 8.108). It is time when we should reconsider its legal system with great interest in order to harmonize with the international standpoint. It will be the turning point of our viepoint under the international commercial transactions.

• Korean Journal of Heritage: History & Science
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• v.49 no.1
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• pp.178-189
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• 2016

This essay explores the ways in which the philosophical concept of "original form" is expressed in relevant laws and regulations, the legal character of respective regulations, the way in which each regulation is applied in practice for heritage management, and the factors required for this concept to serve as a legally binding fundamental principle. The current laws and regulations on heritage maintain a consistent requirement for preserving the original form of heritage, both for the general public and for heritage professionals. However, the principle of preserving original form is expressed as a declaration or imperative without substantive definitions. Consequently, heritage administrators simply follow administrative procedures for heritage conservation, management, and promotion while failing to specify the meaning of "original form." For the practical application of the principle of preserving original form to overall heritage conservation activities as an actual legal principle, further provisions should be added for the purpose of clarifying the principle, with consideration given to the observation of fundamental principles for legal provisions, such as the principles of clarity, equality, and proportion. The principle of preserving original form still functions as the most necessary principle for heritage conservation and therefore should be reestablished as a refined and rational regulatory system.

• Korea Trade Review
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• v.45 no.5
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• pp.117-139
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• 2020

In case of international long-term transactions, there are various risks of economic change of circumstances including skyrocketing price increase and shortage of raw material, as well as force majeure in a general sense. Nevertheless, pretty many of international long-term commercial contracts do not include the provisions of renegotiation and adaptation of the contract. In this case, possibility of renegotiation and adaptation depends mainly on the applicable law. Namely, it may be possible or not, according to choice of law. The reason is that national laws have nuances each other, and most of national courts are traditionally reluctant to accept hardship. and also, provisions of international uniform law (CISG) has ambiguity and inflexibility in relation to the problems of change of circumstances. Accordingly, this paper analyzes comparatively the doctrines and provisions related to renegotiation and adaptation of contracts of the most representative countries such as England, U.S.A., France, Germany as well as provisions CISG and soft law such as PICC. By doing so, the author makes clear which laws of instruments is more flexible or acceptable in allowing renegotiation and adaptation of long-term commercial contracts, and emphasizes on the importance of inclusion of express terms by using other alternative supplementing clauses, as a best solution for settling the problems of legal uncertainty of contract in relation to renegotiation and adaptation.

• Journal of the Korean Society for Library and Information Science
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• v.54 no.1
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• pp.387-409
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• 2020

Precedents are data containing various types of information. In this study, I proposed a method to be utilized as legal information system for the public using automatic text analysis performed on precedents. It is carried out to analyze the defamation precedent using reference provision, judgment issues, major points of judgment, and reference precedents. As a result of the analysis, legal provisions used in defamation, key issues covered by defamation, and key cases are extracted. Although only applied to the Supreme Court case regarding defamation, the proposed methodology could be applied to various legal topics.

• International Journal of Computer Science & Network Security
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• v.22 no.9
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• pp.59-62
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• 2022

In the scientific research, the object of research is a complex of legal relations, which are formed by the use of modern digital technologies. The subject of this work is the novelties of Ukrainian and foreign legislation, norms of international law aimed at regulating social relations in the field of digital rights, as well as doctrinal provisions and materials of law enforcement practice. Within the framework of this work, two types of digital rights are distinguished, those that exist in the law of Ukraine, and the issues of law that apply to legal relations, regarding the turnover of each of them, are considered. Examples of law applied in foreign countries are given for comparison. On the basis of a comprehensive study of the legal framework and positions of scientists, the prospects for the development of legal regulation of digital rights were noted.

• International Journal of Computer Science & Network Security
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• v.22 no.11
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• pp.199-203
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• 2022

The article aims at studying the institution of human rights and civil freedoms with due regard to the anthropological approach in the theory of law. To the greatest extent, the provisions of non-classical legal science are confirmed in the Anglo-Saxon legal family, which endows the judge with law-making functions. In this regard, the role of a person in the legal sphere is increasing. The main research method was deduction used to study the anthropological approach to the institution of human rights and freedoms. The article also utilizes the inductive method, the method of systematic scientific analysis, comparative legal and historical methods. To solve the task set, the authors considered the legal foundations and features of human rights and freedoms in the modern world. The article proves that the classical legal discourse, represented by various types of interpretation, reduces the rule of law to the analysis of its logical structure and does not answer the questions posed. It is concluded that the prerequisite for the anthropological approach in the theory of law is the use of human-like concepts in modern legislation (guilt, justice, peculiar ferocity, child abuse, willful evasion, conscientiousness).

• Journal of Korea Trade
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• v.27 no.1
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• pp.176-191
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• 2023

Purpose - When recovered through arbitration a contractual penalty that is disproportionately high can become grounds for challenging an arbitral award or an obstacle to its enforcement within Russian jurisdiction. This article investigates how violation of the principle of proportionality can affect the enforcement and challenging of arbitral awards in Russia. Based on the examination of the current legislation, along with the analysis of recent court cases on the subject, the ultimate object of this article is to discern practical recommendations for Korean practitioners who are looking to challenge and/or enforce arbitral awards in Russian courts. Design/methodology - The research process included the reviewing of current Russian legislation conducted in concurrence with academic literature review, searching and analyzing recent court cases where the relevant legal provisions and concepts were applied, and formulating practical implications of the research at its final stage. Findings - Through its relation to the principle of fairness/justice the authors establish the connection between the principle of proportionality and the public policy of Russia. Analysis of recent court cases showed two conflicting trends of whether a disproportionate penalty can be considered a public policy violation. The authors offer practical recommendations on how to substantiate a relevant claim regarding contractual penalty reduction by the court, depending on the desired outcome. Originality/value - The article contains an up-to-date summary of the legal provisions on the principle of proportionality of civil liability in Russia and identifies the most recent trends in court practice on the issue that is not covered by existing studies.

• International journal of advanced smart convergence
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• v.12 no.4
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• pp.44-54
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• 2023

This paper provides a comprehensive analysis of the implications of the metaverse on the music industry, focusing on copyright issues and potential solutions. It delves into the concept and characteristics of metaverse platforms, describing them as environments that immerse users in a variety of virtual experiences. A significant portion of the paper is dedicated to exploring music use and copyright infringement in the metaverse. It examines how users incorporate existing music into their content, often leading to legal challenges due to copyright infringement. The paper discusses the role of online service providers (OSPs) in this context and the legal implications of their actions. The paper also addresses the 'safe harbor' provisions for OSPs and examines the balance between protecting rights holders and limiting OSP liability. It highlights the challenges and limitations of copyright enforcement in the metaverse, especially given the unique nature of content on platforms such as Roblox. Finally, the article proposes solutions to simplify music licensing in the metaverse, suggesting a shift from property rules to liability rules and the establishment of Collective Management Organizations (CMOs) to streamline the licensing process and better protect copyright holders' interests.

• Journal of Arbitration Studies
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• v.15 no.3
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• pp.113-137
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• 2005

In the provisions of 'the Arbitration Law of China, there are special provisions for international arbitration. When a court refuses the recognition and enforcement of foreign arbitral awards or cancel the domestic awards relating to international arbitration, they have to adopt the provisions of 'Chinese Civil Procedure Law'. These provisions are the same as the provisions of Korean Civil Procedure Law concerning the reasons of renewal. In the Korean Arbitration Act, those provisions disappeared when it was revised on December 31, 1999. Among the characteristics of the Chinese arbitration system, a serious question is that it provides only institutional arbitration and there is no ad-hoc arbitration in the Chinese Arbitration Law. On the other hand, when the parties appoint three arbitrators according to their agreement, the parties appoint the third arbitrator by mutual agreement and when they fail to agree, the Arbitration Committee appoints the third arbitrator. In practice, as the parties hardly agree on the third arbitrator or sole arbitrator, the Committee usually appoints them. And appointing an arbitrator from out of their panel of arbitrators is permitted these days only under examination by the Arbitration Committee in accordance with the arbitration rules of the China International Economic and Trade Arbitration Commission, Other arbitration committees except the China International Economic and Trade Arbitration Commission are still prohibited from making appointments from out of their panel of arbitrators. Accordingly, arbitration in China cannot be predicted and poses a question about legal stability as party autonomy is restricted in the appointment of arbitrators and arbitral procedure. Such being the case it is strongly recommended to select Korea as the place of arbitration in transactions with China. However it is better to arbitrate than to file a law suit in China.

• Journal of Arbitration Studies
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• v.20 no.3
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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.