• 무역상무연구
• /
• 제54권
• /
• pp.145-166
• /
• 2012

This article examines the limitations of the choice of law caused by Internationally Mandatory Rules in Entering into the Turn-Key Contracts. In June 2007, Clough Engineering, a corporation based in Western Australia, approached the Federal Court of Australia seeking injunctive relief and leave to commence proceedings against an entity located outside Australia, the Oil & Natural Gas Corp of India (ONGC). Clough had contracted with ONGC to provide a range of services in relation to the construction of gas and oil wells off the coast of India. The contract was governed by Indian law, and included a clause by which the parties agreed to submit their disputes to arbitration. Yet the Federal Court assumed jurisdiction over the dispute, principally because Clough had framed its claim as a plea for relief for contraventions of Australia's Trade Practices Act 1974. The result of this cases that it is possible for an arbitral tribunal to hear a claim made under the Trade Practices Act even if that claim arises "in connection with"a contract the proper law of which is not the law of Australia. However, in Transfield Philippines Inc v Pacific Hydro Ltd, the turnkey contract included a choice of law provision, selecting the law of the Philippines, and a clause providing that all disputes arising out of or in connection with the agreement were to be arbitrated under the ICC Rules, with the seat in Singapore. Hearings were in fact conducted in Melbourne, Australia, although all awards were published in Singapore. The result of this cases that it would not be appropriate for an Australian court to adjudicate claims for misrepresentation under Australian statutes dealing with misleading and deceptive conduct, once the arbitral tribunal had determined, applying appropriate choice of law rules, that such claims are governed by the law of the Philippines. To do so would lead to a multiplicity of proceedings, usurp the jurisdiction of the tribunal and deny the intention of the parties as expressed by them in the arbitration agreement. In short, the Internationally Mandatory Rules as an active part of public order create limitation of party autonomy in choice of law rules in a different way. The court is fully entitled to refuse to use those rules of law applicable on the contract which are in the contradiction to the internationally mandatory rules of law of the forum. And the court may give an effect to those Internationally Mandatory Rules that form a part of a law of foreign country when deciding about applicability of certain rules of applicable law.

• 한국중재학회지:중재연구
• /
• 제20권1호
• /
• pp.3-20
• /
• 2010

Traditionally, finality has been regarded as one of virtues of arbitration. However in many cases absence of appeal process in arbitration is also a factor deterring people from choosing arbitration. Even though unsatisfied party may resort to a court for annulment of an award, it is allowed only when there are procedural defects. When there are substantive defects in matters of fact or matters of law, it is not easy or almost impossible to bring the case on the table again. The introduction of arbitration appeal process has been discussed in international arbitration fora, and some countries have already been adopting appeal process. Realizing this trend, it is time for us to consider adopting similar appeal process. Arbitration being based on the party autonomy, there's no good reason to prohibit appeal when the parties agree to do so. Arbitration appeal should be allowed within arbitration system itself, rather than resorting to a court, so that many virtues of arbitration can be maintained in the appeal. In designing an arbitration appeal system, following measures should be considered: minimum amount in dispute to trigger the right of appeal should be set in order to reduce the volume of appeal; losing appellant should be responsible for the legal cost of his opponent in order to deter non-meritorious appeals; time limits on initial appeal application and subsequent briefs should be set in order to accelerate appeal process; and, appeal tribunals should be composed of more experienced arbitrators in order to provide more accurate award. If we are equipped with a well designed appeal process within arbitration system, Korea will be able to emerge as an attractive international arbitration forum.

• 한국중재학회지:중재연구
• /
• 제20권1호
• /
• pp.41-65
• /
• 2010

It is a matter for debate that which types of dispute may be resolved by arbitration. This problem is concerning the arbitrability of the subject-matter of a dispute. National laws establish the domain of arbitration. Each state decides which matters may or may not be resolved by arbitration in accordance with its own political, social and economic policy. In response to complexity and diversity of a social phenomenon, the dispute also is various, therefore can not be settled efficiently by means of court adjudication to which applies a law strictly. To overcome such problems we are going to seek to make use of arbitration. According to Korean Arbitration Act Art. 3 (1), any dispute in private laws would be the object of arbitral proceedings. For the promotion of fair and free competition, it is increasingly wide-ranging antitrust legislation across the world. It is matter for debate what can an arbitral tribunal do when confronted with an allegation that the contract under which the arbitration is brought is itself an illegal restraint of trade or in some other way a breach of antitrust law. The underlying question is how to accommodate the conflicting congressional policies favoring resolution of private controversies by arbitration and encouraging private suits to protect the public interests served by the antitrust laws. It is necessary to inquire into the arbitrability of antitrust issues on case-by-case basis, because the types of them are quite diverse. If antitrust issues are the dispute in private laws and the contracting parties agreed to submit to arbitration disputes which have arisen or which may arise between them in the antitrust issues, the antitrust disputes are arbitrable. Not only international antitrust disputes but also domestic antitrust disputes are capable of being resolved by arbitration. When the public interests in the enforcement of antitrust legislation are asserted, it is possible to justify the annulment or the refusal of the recognition or the enforcement of an arbitral award that ignores public policy as a matter of it.

• 한국중재학회지:중재연구
• /
• 제31권1호
• /
• pp.129-154
• /
• 2021

As our society and industry develop, disputes are becoming ever more complicated and diversified to the point that it is alleged that dispute resolution by court proceedings has certain limits and setbacks. Therefore, it is commonly suggested that mediation by a qualified mediator should come as an alternative method, and there have been many attempts to establish and provide mediation service in the courts and government authorities. To comply with a party's autonomy, which is the essential basis of mediation, and to promote the use of mediation, it is highly recommended that private mediation, rather than court-driven or administrative mediation, shall take the initiative. In the meantime, despite a number of academic research and attempts to increase the awareness and use of mediation nationwide, we have not yet seen meaningful developments due to the longstanding misunderstanding and discredit of mediation. In contrast, Italy has begun to revitalize mediation by enacting 'Legislative Decree No. 28/2020' following the 'Directive 2008/52EC' of the European Parliament and encouraging the so-called via-mediation policy. It is acknowledged to have significantly contributed to the development of private mediation in Italy and the increased use of mediation as a dispute resolution method. It shall be particularly noted that Italy's mediation proceedings have certain traits, including preliminary mediation meetings, mandatory involvement of legal counsel, and tax benefits for the settled cases by mediation. Italy's efforts would provide people with meaningful lessons and perspectives. As society strives to promote private mediation to distribute and utilize the judicial resources' inefficient ways, institutions need to develop practical measures to increase the number of civil and commercial disputes in the mediation proceedings. To that end, legislative efforts to enact relevant laws necessary to provide incentives to disputing parties and establish integrated education and certification programs to train qualified mediators need to start soon.

• 한국언론정보학보
• /
• 제16권
• /
• pp.168-206
• /
• 2001

This study attempts to examine the relationships between the major market-based media and the government after closing military regime era, 1961-1987. After the military regime was collapsed, while the mass media in Korea obtained independence and autonomy from government, they have been confronted with the terrible competition not so much comparatively as before. The watchdog role in the traditional liberalism, which is regarded as normative relationship between the media and the government would be transformed in accordance with the market condition and the maturity of democracy. Thus, the watchdog metaphor has been variously deviated in rower-centered society; lap dog, guard dog, attack dog. liberalists argue that the primary democratic role of the media is to art as a public watchdog overseeing the state. Social democrats, however, criticize them as simplistic conception which could be only applied to the government. They argue that the media should be seen as a source of redress against the abuse of all forms of power over others; the home, the economy, and the civil society. The lap dog view is that the media is overwhelmingly dependent on the established power structure contrary to the watchdog. While the guard dog perspective is a means to preserve the power structure alarming with playing 'conflict role', the attack do8 aims to the private interest of the media in intruding into the politics. The attack dog perspective by T. Patterson could be composed of the interpretive style of report, the game schema report over the policy schema in the election, and the negativism against politics and government. The market-dominant press has been likely to transform from lap-guard dog into attack-guard dog. In Roh Tae Woo government(1988-1992), while the press was a lessened lap-guard dog before three parties merger in 1990, after merger the press had been transformed as the reinforced lap-guard dog because this merger entailed joint, party-to-party negotiations, and the formation of the new party preceded by dissolution of the ruling blot. In the early stage of Kim Young Sam government(1993-1997), the press has kept in pace with the reform movement drive-forced by the government. However, the press withdrew the support of Kim's reform in reaching the level of threat to ruling bloc. The press coalesced only circumstantially with government and was interested in preserving some margin of independence. The failure of Kim's reform proved the political muscle of the press in post-autho-ritarianism. In the middle stage of Kim Dae Jung government (1998-) that resulted in the shift of power structure as once-opposition party leader, the stress has been a manifested attack-guard dog owing to the anti-cold war policy, the realignment policy of power, and the minority-base of Kim's government. The press has endeavored to hold political communication within limits relatively less threatening to the established order.

• 한국간호교육학회지
• /
• 제6권2호
• /
• pp.171-185
• /
• 2000

The twenty-first century may be said to be entering into a specialized qualification age to meet the needs of new technical innovations such as environmental changes, demographical changes, changes in the constitution of diseases, changes in the needs of the national health, reforms of information and knowledge, etc., which requires the provision of competitive services that can fulfill the high level needs of consumers. In consequence, it is needed to apply a practical nursing model that can serve as a guide for healthy society and to secure the sphere that can affect nursing policy-making by keeping pace with the changing environment. Furthermore, it is also urgent to expand more the activity sphere of nurse specialists with authority and autonomy, establish their legal foundation, establish a qualification accreditation system for nurse specialists, and develop educational programs. In Korea, the law relative to organ transplant past the national assembly on February 9, 2000, legally acknowledged brain death, which indicated to us the emergence of an age of organ transplant. Therefore, it necessitates to find out those of brain death from whom organ transplant is feasible in clinical practices, with their families' consent link to those terminal organ failure patients who are in need of an organ, and mediate both parties so that smooth transplant can be accomplished. A series of these complicated procedures require systematically trained specialists with high level techniques of organic management. With this in mind, this study was conducted on 69 clinical nurse specialists for organ transplant, accredited by the hospital, who are in active service in clinical practices. The resultant findings were revealed, as follows: 1. The qualifications of clinical nurse specialists for organ transplant should be accredited by Ministry of Health and Welfare or Korea Nurses Association. 2. The validity of qualifications should be for three years, and their renewal should be based on marks of a supplemental training or an education course for more than 12 hours a year. 3. The qualification of the clinical nurse specialist necessitates theoretical lectures and practices on those nurses who have had clinical experience in the pertinent field. 4. The course of training is required to be one year in the length of training and take more than 20 credits (320 hours) and 5 credits (240 hours).

• 무역상무연구
• /
• 제12권
• /
• pp.461-494
• /
• 1999

This study is to analyse the applicability of governing law in multi-party contractual relationship of letter of credit. And this study is also to suggest the limits of the possibility of applicable law in multi-party contract. The contract of letter of credit constitutes complex relationship, i.e., applicant -beneficiary, applicant-issuing bank, issuing bank-intermediary bank ect. The law applicable to letter of credit should not use a singular governing law in all credit transaction as sales contract. To solve these problems, the author analysed the law applicable to the credit under multi-party contractual relationship as follow : (1) the principle of party autonomy (2) In the absence of express agreement with regard to the law applicable to the contract, lex loci contractus, lex loci solutionis, the law intended by the parties, the law with which contract is most closely connected. Accordingly, when attempting to ascertain the law governing the credit, it should be borne in mind that the credit involves several contractual relationships. I would like to conclude as follows: 1. The contract between the applicant and the Issuing bank is to be governed by the law of the country where the contract is made, and in which the bank carries on business and has issued the credit. 2. When it comes to the beneficiary-Intermediary bank relationship the following rule is given : The liability of an intermediary bank to the seller is governed by the law the country where the intermediary bank is operating if it is acting as principal. If, however, it is acting as agent(advising bank), it will be the law of the country where his principal is situate. 3. The contract between the beneficiary and the Issuing bank is governed by the law of the country where the payment is to be performed. 4. The contract between the Issuing bank and Intermediary bank is governed by 1) the law of the issuing bank is applicable if the intermediary bank only advises the credit, 2) the law of the issuing bank is applicable but if the intermediary bank makes payment, accepts or negotiates drafts against the tender of the documents, i.e., act as the bank dffecting the payment., 3) the law of the confirming bank is applicable if the irrevocable letter of credit is confirmed by the intermediary bank

• Journal of Korea Trade
• /
• 제24권1호
• /
• pp.82-98
• /
• 2020

Purpose - This study aims to overcome the limitations of existing studies, which linearly determine the precedence factors of competency in overseas subsidiaries. The research objectives are as follows. First, what kind of nonlinear effects does the level of control held by Korean headquarters over foreign subsidiaries have in terms of competency in the subsidiaries? Second, what kind of nonlinear effects do the local experiences of overseas subsidiaries have on their competency? Design/methodology - With data on Korean multinational corporations (MNCs), this paper analyzes the effects of control levels of headquarters (HQs) and host-country experiences of foreign subsidiaries regarding competency in overseas subsidiaries. In particular, this study focuses on nonlinear models, differentiating it from previous studies. In order to examine research hypotheses, this study conducted a survey of overseas subsidiaries of Korean corporations. Surveys were conducted through various methods including e-mail, online questionnaires, fax, and telephone calls. Copies of the questionnaire were distributed to a total of 2,246 overseas subsidiaries, and 409 completed responses were collected. Excluding 15 copies that were insufficiently answered, responses from a total of 394 copies were used for analysis. Findings - This study presents the following results. First, there is a U-shaped relationship between levels of HQ control and competency in foreign subsidiaries. This means that higher levels of HQ control negatively impact the competency levels of subsidiaries because strict control undermines autonomy in subsidiaries. However, if the level of HQ control exceeds a certain point, then the transfer of knowledge between HQs and subsidiaries is facilitated. Knowledge transferred from HQs can be used as prior knowledge by foreign subsidiaries to the benefit of all parties. Accordingly, knowledge transfer negates the negative effects of excessive HQ control and positively affects competency in subsidiaries. Second, there is an inverted U-shaped relationship between the local (host-country) experiences of subsidiaries and competency in foreign subsidiaries. This means that foreign subsidiaries can overcome the liabilities of foreignness and contribute to capability building by accumulating unique knowledge about their host countries. However, if local experiences accumulate excessively beyond a certain point, then the host country-specific experiences of foreign subsidiaries will offset the benefits discussed above. Excessive local experiences not only increase organizational inertia, but also create a problem of goal incongruence due to information asymmetry between HQs and subsidiaries. Therefore, excessive local experiences have negative effects on competency in foreign subsidiaries. Originality/value - This study suggests the following implications. First, unlike existing studies based mainly on linear models, this study presents important theoretical implications in its focus on nonlinear models and its analysis of the effects of HQ control and local experiences on competency in foreign subsidiaries from perspectives of organizational learning theory and agency theory. Second, in terms of practical implications, the results of this study suggest that optimally raising levels of HQ control and managing the local experiences of subsidiaries without increasing organizational inertia is important for enhancing competency in foreign subsidiaries.

• 의료법학
• /
• 제17권2호
• /
• pp.145-173
• /
• 2016

우리나라에서 전통적으로 환자의 자기결정권 내지 자율권은, 의사의 보고성 설명의무에 대응하는 알 권리 그리고 의사의 기여적 설명의무에 대응하는 수진 동의권 및 수진 거절권, 양자를 '중심'으로 해서 논의되어 왔다. 환자의 자율적 결정의 내용으로서 형성 피력되는, 자기 신체 및 의료 상황에 대해 알고 싶지 않은 희망과 그로 인한 이익에 관한 지위- 도덕적 법적 지위 - 는 환자로부터의 알 권리와 동의권의 포기 또는 (의사가 부담하는) 설명의무의 면제라는 소극적 지위 차원에서 인식되었다. 그리고 설명 동의 원칙 도그마의 적용에 의한 역기능 문제는 설명 동의 원칙의 적용 배제 및 그에 따른 의사의 책임 부인이라는 역시 소극적 접근법에 의해 '주로' 인식되었다. 즉 환자의 그러한 알고 싶지 않다는 '무지(無知)의 희망'을 실현시켜 줄 법적 수단이 환자의 '모를 권리' 및 의사의 '부작위 배려의무'라는 '적극적 지위'로 이해되고 인정되지 않았던 것이다. 이러한 당사자의 적극적 지위 설정이 전제되지 않으면 실제상 및 이론상 문제가 제기된다. 환자가 동의권을 포기한다고 선언하거나 의사의 설명의무를 면제한다고 표명했음에도 불구하고, 의사가 굳이 환자를 상대로 설명 내지 보고를 행하여 환자에게 큰 손해가 발생한 경우에, 의사의 그 행위를 규범적으로 어떻게 평가할 것인가가 문제인 것이다. 한편 의사가 설명의 역기능을 우려하여 설명을 행하지 않았고, 그 행태에 대해 적절한 것이란 평가가 가능한 경우에, 그 재량적 불설명의 적법성을 인정할 직접적 근거가 무엇인지를 밝히는 것 또한 문제이다. 이러한 문제를 해결하기 위해 근본적으로 환자에게 '모를 권리'라는 지위를, 의사에게 '배려의무'라는 지위를 인정할 필요가 있다. 요컨대 이 권리와 의무 개념은 환자의 자율성 관념의 충실화와 설명역기능 현상의 적정한 방지라는 법규범적 요구를 충족시키는 데에 매우 유용한 도구로서 수용할 수 있다.

• 기술혁신연구
• /
• 제5권2호
• /
• pp.1-21
• /
• 1997

The objective of this paper is to think about what structural reforms of the Korean government S&T development management system might be. Korean society is currently experiencing a drastic socio-economic transformation. The results of this transformation should be reflected on the determining process of the directions and breadths of structural reforms of government S&T development management system. Because the government system design will be based on the premises of socio-economic conditions under which administrative activities perform and also this socio-economic changes can influence on changes of the premises of government management system design. Moreover, S&T development management system is a subsystem of government system so that the directions of structural reform of those subsystems should be considered in the broad framework changes in the development management system of the government. For the last forty years, the Korean government S&T development management system has been based on the premises including transformation from an agrarian society to an industrial society, authoritarianism and centrally controlled institutions, and exteremely small portions of private investments for science and thechonology R & D of the total. Recently, however, the premises of Korean government S&T development management system have rapidly changed. the characteristics of these changes are including tranformation from an industrial society to a knowledge and information intensive society, globalization, localization, and relatively large portion of private investments for science and technology R & C of the total. The basis of government reforms in Korea was the realization of the performances and values through the enhancement of national competitive capacity, attainment of lean government, decentralization and autonomy. However, the Korean government has attached a symbolic value of strategic organizations representing strong policy intentions of government for the science and technology based development. Most problems associated with the Korean government S&T development management system have grown worse during 1990s. Many people perceive that considerable part of this problem was generated because the government could not properly adapt itself to new administrative environment and the paradigm shift in its role. First of all, the Korean government S&T development management system as a whole failed to develop an integrated vision under which processes in formulating science and thechology development goals and developing consistent government plans concerning science and technology development are guided. Second, most of the local governments have little organizational capacity and manpowers to handle localized activities to promote science and technology in their regions. Third, the measure to coordinate and set priorities to invest resources for the development of science and technology was not effective. Fourth, the Most has been losing its reputation as the symbol of ideological commitment of the top policy maker to promote science and technology. Various ideas to reform government S&T development management system have been suggested recently. Most frequently cited ideas are as follow : (ⅰ)strengthen the functions of MoST by supplementing the strong incentive and regulatory measures; (ⅱ)create a new Ministry of Education, Science & Technology and Research by merging the Ministry of Education and the MoST; (ⅲ)create a new Ministry of Science & Technology and Industry ; and(ⅳ)create a National Science and Technology Policy Council under the chairmanship of the President. Four alternatives suggested have been widely discussed among the interested parties and they each have merits as well as weaknesses. The first alternative could be seen as an alternative which cannot resolve current conflicts among various ministries concerning priority setting and resource allocation. However, this alternatives can be seen as a way of showing the top policymaker's strong intention to emphasize science and technology based development. Second alternative is giving a strategic to emphasize on the training and supplying qualified manpower to meet knowledge and information intensive future society. This alternative is considered to be consistent with the new administrative paradigm emphasizing lean government and decentralization. However, opponents are worrying about the linkages and cooperative research between university and industry could be weakening. The third alternative has been adopted mostly in nations which have strong basic science research but weak industrial innovation traditions. Main weakness of this alternative for Korea is that Korean science and technology development system has no strong basic science and technology research traditions. The fourth alternative is consistent with new administrative paradigms and government reform bases. However, opponents to this alternative are worried that the intensive development of science and technology because of Korea's low potential research capabilities in science and technology development. Considerning the present Korean socio-economic situation which demands highly qualified human resources and development strategies which emphasizes the accumulations of knowledge-based stocks, I would like to suggest the route of creating a new Ministry of Education, Science & Technology and Research by intergrating education administration functions and science & technology development function into one ministry.