• Journal of Arbitration Studies
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• v.26 no.4
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• pp.3-41
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• 2016

This paper reviews the problems on the arbitral awards enforcement in the 2016 Korean Arbitration Act. In order to get easy and rapid enforcement of the arbitral awards, the new arbitration act changed the enforcement procedure from an enforcement judgement procedure to an enforcement decision procedure. However, like the old arbitration act, the new act is still not arbitration friendly. First of all, there are various problems in the new act because it does not approve that an arbitral award can be a schuldtitel (title of enforcement) of which the arbitral award can be enforced. In this paper, several problems of the new act are discussed: effect of arbitral award, approval to res judicata of enforcement decision, different trial process and result for same ground, possibility of abuse of litigation for setting aside arbitral awards and delay of enforcement caused by setting aside, infringement of arbitration customer's right to be informed, and non-internationality of enforcement of interim measures of protection, inter alia. The new arbitration act added a proviso on article 35 (Effect of Arbitral Awards). According to article 35 of the old arbitration act, arbitral awards shall have the same effect on the parties as the final and conclusive judgement of the court. The proviso of article 35 in the new act can be interpret two ways: if arbitral awards have any ground of refusal of recognition or enforcement according to article 38, the arbitral awards do not have the same effect on the parties as the final and conclusive judgement of the court; if arbitral awards have not recognised or been enforced according to article 38, the arbitral awards do not have the same effect on the parties as the final and conclusive judgement of the court. In the case of the former, the parties cannot file action for setting aside arbitral awards in article 36 to the court, and this is one of the important problems of the new act. In the new act, same ground of setting aside arbitral awards can be tried in different trial process with or without plead according to article 35 and 37. Therefore, progress of enforcement decision of arbitral awards can be blocked by the action of setting aside arbitral awards. If so, parties have to spend their time and money to go on unexpected litigation. In order to simplify enforcement procedure of arbitral awards, the new act changed enforcement judgement procedure to enforcement decision procedure. However, there is still room for the court to hear a case in the same way of enforcement judgement procedure. Although the new act simplifies enforcement procedure by changing enforcement judgement procedure to enforcement decision procedure, there still remains action of setting aside arbitral awards, so that enforcement of arbitral awards still can be delayed by it. Moreover, another problem exists in that the parties could have to wait until a seventh trial (maximum) for a final decision. This result in not good for the arbitration system itself in the respect of confidence as well as cost. If the arbitration institution promotes to use arbitration by emphasizing single-trial system of arbitration without enough improvement of enforcement procedure in the arbitration system, it would infringe the arbitration customer's right to be informed, and further raise a problem of legal responsibility of arbitration institution. With reference to enforcement procedure of interim measures of protection, the new act did not provide preliminary orders, and moreover limit the court not to recognize interim measures of protection done in a foreign country. These have a bad effect on the internationalization of the Korean arbitration system.

• The Journal of Korean Philosophical History
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• no.56
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• pp.47-80
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• 2018

The traditional laws of Korea have undergone various stages of development over time. This includes the voluntary standards of the clean society. Korea's traditional legal systems, ranging from those of the Goryeo(高麗) to those of the Republic of Korea, have taken Confucian Phiosophy as their major ideological bases. At the center of these Confucian ideals, particularly in regards to pre-Qin Confucian Philosophy(先秦儒家思想) from where these ideals originated, lie the core ideals which emphasize the responsibility of each individual regardless of the social status(正名), the needs for a democracy in which people are empower and guide the state(民本), the importance of reigning with benevolence, moral excellence, and rite (仁義), and the differential love centered on kinship and humanity(親親愛人). These were the ideas as set forth by Confucius(孔子), Mencius(孟子) and Xun Zi(荀子). The current laws of Korea, especially in regards to the Constitution and the Civil and Criminal Laws, include a number of provisions that contain the Confucian Ideas of Law. The Constitution, in particular, which is also supported by the judgement of the Constitution Court, reflects several core Confucian ideals including filial duty (孝) and respect for ascendants and the traditional culture. The Court also suggested the two important standards of the constitutional legitimacy of the Traditional Culture. One is 'Age Compatibility (時代 適合性)', the other is 'Manifested Universally Validity(現在的 普遍妥當性)'. So we have burdened with the reestablishment of the Universal Ethics of the Confucian Ideology.

• Journal of the Daesoon Academy of Sciences
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• v.42
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• pp.75-108
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• 2022

This paper aims to newly investigate the meaning of life in this era when various discussions on life and ethical living are commonly raised by comparing and examining the theories of life proposed by Confucianism and Daesoon Thought. Both Confucianism and Daesoon Thought explain the creation of all things as having been based on the principles of life in heaven and earth. Specifically, there is the will to live (生意 saengeui) and also divine beings (神明 sinmyeong). For this reason, everything in heaven and earth is created by obtaining the same principle of life such that it is an equal being with the same intrinsic value. Here the consciousness of being one body amid all things as one living thing is established. The consciousness of being one body forms an organic worldview in which all things are one. As a result, all things in heaven and earth exist within a mutual organic relationship, and that makes oneself and others precious life partners that coexist rather than separate beings. Nevertheless, both Confucianism and Daesoon Thought define humans as outstanding beings, set aside for a higher purpose than other beings. The excellence of humans is that by constantly engaging in self reflection and completing tasks through independent efforts, they thereby achieve the great moral doctrine of coexistence and symbiosis. In this process, cultivation of character (修養 suyang) and cultivation of the Dao (修道 sudo) are presented as means to realize one's nature and establish the right human image. By realizing nature or humanity through the cultivation of character and cultivation of the Dao, humans fulfill their responsibilities and missions by independently participating in being nourished by Heaven and Earth (天地化育 cheonjihwayuk) or the Reordering Works of Heaven and Earth (天地公事 cheonjigongsa), both being based in the concept of the three generative forces of Heaven, Earth, and Humanity (天·地·人 cheon·ji·in). In the end, the theories of life posited by Confucianism and Daesoon Thought are based on a consciousness of being one body. Both emphasize the characteristics and roles of humans who are distinguished from other beings and phenomena. At this time, human characteristics and roles are revealed as the reasons for which humans have a responsibility and mission take care of all things. From this point of view, it can be seen that the theoretical structure of Neo-Confucianism and Daesoon Thought, in regards to their theories of life, is rather similar.