중재합의와 중재판정에 관한 소고 -건설분쟁을 중심으로- (Brief Observation on Arbitration Agreement and Arbitral Award - Focusing on Construction Disputes -)
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- 한국중재학회지:중재연구
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- 제14권1호
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- pp.273-314
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- 2004
There is a belief in the construction industry that the traditional court system may not be an ideal forum to effectively and efficiently resolve construction disputes due to the protracted proceedings and the three tier appeal system resulting in a long delay in the final and conclusive settlement of the dispute, relatively high costs involved, the lack of requisite knowledge and experience in the relevant industry, etc. Hence, they assert that certain alternative dispute resolution ('ADR') methods, such as mediation, conciliation, arbitration or a new system for dispute settlement in the form of any combination thereof should be developed and employed for construction disputes so as to resolve them more promptly and efficiently to the satisfaction of all the disputants concerned. This paper discusses certain merits of such assertions and the need for additional considerations for effective resolution of the construction disputes in light of the complexity of the case, importance of expert witnesses, parties' relationship and non-level playing field of the construction industry and so on. At the same time, however, given the inherent nature of disputes rendering the parties involved in an adversarial position, it would rather be difficult, if not practically impossible, to satisfy all the parties concerned in the dispute. Accordingly, in this study, it is also purported to address the demerits of such assertions by studying the situation from a more balanced perspective, in particular, in relation to the operation of such ADRs. In fact, most of such ADRs as stipulated by special acts, such as the Construction Industry Basic Act of Korea, in the form of mediation or conciliation, have failed to get support from the industry, and as a result, such ADRs are seldom used in practice. Tn contrast, the court system has been greatly improved by implementing a new concentrated review system and establishing several tribunals designed to specialize in the review and resolution of specific types of disputes, including the construction disputes. These improvements of the court system have been warmly received by the industry. Arbitration is another forum for settlement of construction disputes, which has grown and is expected to grow as the most effective ADR with the support from the construction industry. In this regard, the Korean Commercial Arbitration Board ('KCAB') has established a set of internal rules end procedures in operation to efficiently handle construction disputes. Considering the foregoing, this paper addresses the most important elements of the arbitration, i.e., arbitration agreement and arbitral award, primarily focusing on the domestic arbitrations before the KCAB. However, since this parer is prepared for presentation at the construction disputes seminar for the public audience, it is not intended for academic purposes, nor does it delve into any specific acadcmic issues. Likewise, although this paper addresses certain controversial issues by way of introduction, it mainly purports to facilitate the understanding of the general public, including the prospective arbitrators on the KCAB roster without the relevant legal education and background, concerning the importance of the integrity of the arbitration agreement and the arbitral award. In sum, what is purported in this study is simply to note that there are still many outstanding issues with mediation, conciliation and arbitration, as a matter of system, institutional operation or otherwise, for further study and consideration so as to enhance them as effective means for settlement of construction disputes, in replacement of or in conjunction with the court proceeding. For this purpose, it is essential for all the relevant parties, including lawyers, engineers, owners, contractors and social activists aiming to protect consumers' and subcontractors' interests, to conduct joint efforts to study the complicated nature of construction works and to develop effective means for examination and handling of the disputes of a technical nature, including the accumulation of the relevant industrial data. Based on the foregoing, the parties may be in a better position to select the appropriate dispute resolution mechanism, a court proceeding or in its stead, an effective ADR, considering the relevant factors of the subject construction works or the contract structure, such as the bargaining position of the parties, their financial status, confidentiality requirements, technical or commercial complexity of the case at hand, urgency for settlements, etc.
최신 정보통신기술이 다양한 분야에 접목되면서 우리의 일상은 급격한 속도로 변화하고 있으며, 스마트시티 개념이 확산되고 있는 반면, 조경분야에서는 기술진화에 의한 사회변화에 대비하려는 노력이 부족한 실정이다. 이에 본 연구는 스마트공원의 개념을 정립하고, 공원 관련 스마트 기술 도입 현황을 파악하며, 기존에 조성된 스마트공원의 서비스에 대한 이용자의 인식과 활용도를 파악함으로써 향후 스마트공원 조성을 위한 기초자료를 제공하는 것을 목적으로 하였다. 이를 위해 관련 문헌 및 선행연구 고찰, 전문가 토론, 국내외 사례조사를 실시하였으며, 국내 최초로 스마트공원 시범사업이 시행된 대구시 국채보상운동 기념공원의 이용자를 대상으로 스마트공원에 대한 인식 정도와 서비스 만족도를 조사하였다. 연구결과, 스마트공원이란 다양한 첨단 기술을 활용하여 이용자의 공원 체험을 향상하고, 효율적으로 공원을 유지 관리하며, 도시가 직면한 사회 및 환경문제를 해결하는 지속가능한 공원으로 정의할 수 있다. 현재까지 공원에 도입된 스마트기술은 인공지능 CCTV, 스마트 가로등, 미세먼지 알림장치 등 주로 안전 및 환경 분야에 집중된 것으로 나타났다. 실제 이러한 기술이 도입된 국채보상운동기념공원 이용자들을 대상으로 한 인식조사 결과, 홍보 부족 및 관리인 편의 중심의 기술도입으로 인하여 실제 이용자의 인식 정도는 매우 낮은 편이었다. 특히 역사성 있는 공원의 역사정보 전달을 위한 AR서비스 활용이 가장 저조한 반면, 태양열 벤치나 WiFi 등의 시설의 활용도가 가장 많은 것으로 조사되었다. 향후 스마트공원 조성 시 안전 및 환경 관리, 편의성 증진을 위한 서비스 뿐 아니라, 이용자가 체감할 수 있고, 이용자 요구에 맞는 다양한 콘텐츠 개발을 위한 노력이 필요할 것이다.
본 연구는 독거노인의 자아존중감 및 우울과 관련된 변인들을 탐색하고 그 변인들간의 관계를 밝혀내는데 목적을 두고 있다. 연구 참여자는 서울에 거주하고 있는 평균 연령 76.17(SD=7.60)세인 676명의 남녀 노인들이었으며, 그들 중에 독거노인은 378명이었다. 자아존중감 척도(Rosenberg's Self-Esteem Scale), 자기평가 우울척도(Zung's Self-Rating Depression Scale), 생활활동 수행 목록(The Index of Activities of Daily Living), 및 사회적 지원 목록(Social Support Index)을 참여자에게 주었다. 주요 통계분석은 2(성별) × 2(거주형태) 이원공변량분석과 상관분석, 그리고 회귀분석이었다. 분석 결과, 독거노인은 동거노인에 비해 자신의 건강이 좋지 못하다고 평가했고 경제 수준이 낮았으며 사회적 지원을 받지 못하는 것으로 나타났다. 남성 노인들은 여성 노인들보다 자녀가 있으면서도 혼자 사는 경향이 있고 사회적 지원은 덜 받는 것으로 나타났으며, 남녀 독거노인 사이에는 독거 이유에도 차이가 있었다. 여성 독거노인의 자아존중감 수준이 남성 독거노인의 자아존중감 수준보다 낮았으며, 독거노인이 동거노인보다 더 우울해하고 있었다. 자아존중감과 우울에는 성별과 거주형태의 유의한 상호작용이 존재해 독거노인의 경우에서만 자아존중감의 유의한 성차가 있고, 여성에서만 거주형태별로 우울 수준에 차이가 있었다. 회귀분석 결과, 신체기능 수준과 건강지각이 독거노인의 자아존중감을 예언할 수 있는 변인으로 나타났고, 신체기능 수준과 건강지각, 그리고 사회적 지원이 독거노인의 우울을 예언할 수 있는 유의한 변인으로 밝혀졌다. 이런 결과는 노인의 자아존중감과 우울에 대한 신체기능 수준과 건강지각, 그리고 사회적 지원의 역할을 재확증하는 것이고 한국 독거노인의 삶의 질에는 성이 결정적인 변인이라는 것을 밝혀낸 것이다.
According as the automation of clerical work(OA ; Office Automation) develops, the use of VDT(Visual or Video Display Terminal) is increasing suddenly. But, in proportion to the spread of office automation(OA tendency), the self-conciousness syptom attendant upon the work is appearing also (Kim, Jung Tae, Lee, Young Ook, 1990). The apparatuses of office enable the clerical workers to be convenient and perform mass businesses. But, they are increasing the opportunity to be exposed to VDT syndrom, techno stress, computer terminal disease, pain by muscle strain(RSI), bradycausia of noise nature, and electromagnetic waves, etc. which are referred to as the new type of occupational diseases to the workers. It is the real situation that the workers to use VDT is complaining of the physical inconvenience sense in the recent newspaper and literature, it is the point of time that the sydrome to come from VDT use and computer terminal disease, etc. must be classified into the occupational disease(Lee, Kwang Young 1990, Lee, Kyoo Hak 1990, Lee, Won Ho 1991, Lee, Si Young 1991, Lee, Joon 1991, Choi, Young Tae 1991, Heo, Seung Ho 1989). In addition, it is the real situation that the scientifitic study result about the scope that electromagnetic waves has influence on the human body has not been suggested yet, and criticism on the stable exposure permission standard about electromagnetic waves to be emitted from VDT and on the problem in the health about electromagnetic waves is continuing. (IEEE Spectrum, 1990). In addition according to the experience of nursery business of industry field, it is the real situation that the patients who consult complaining of physical and mental inconvenience sence, among the users of apparatus of office automation, are reaching 10% of the patients coming to doctor's room. Therefore, it is necessary to confirm the self-consciousness symptom that the clerical workers complain of multilaterally with the actual state examination about the use of the apparatuses of offices automaton. Thus, this study was tried as th basic data for the cosultation and education for the maintenance and furtherance of the health of workers as the nurse of industry field, by confirming the contents of self-consciousness symptom attendant upon the use of the apparatus for office outomation making the financial institution in which the spparatus for office automation in most frequently used as the subject, and by examining whether there is the difference according to the subject of study, the data were collected, by using the questionnaire method, making 200 workers who consented to the study participation as the subject, among the persons who have spent over 3 months since they used the apparatuses for office automation and didn't receive the treatment in hospital due to the clerical disease for recent 3 years. The period of data collection was from Oct. 9, 1991 to Oct. 12. As for the measurement instrument about the complaint if self-consciousness symptom attendant upon the use of apparatuses fo office automation, the question item on the complaint symptom of health problem attendant upon the treatment of VDT that Kim(1991) developed and on CMI health problem and the question items on the fatigue degree due to industry were used by previous examination to 25 persons. Collected data were analyzed with the statistical method such as percentage, arithmetic mean, Person correlation coeffient, Kai square verfication, t-test, ANOVA, etc. by using SPSS/PC+ program, and the result is as follows : 1. The self-consciousness symptom that the clerical workers complained of most frequetly appeared high in 'My eyes are tired'(99.4%), 'I feel fatigue and weariness'(99.4%), 'I feel that my head is heavy5(90.0%), 'eyesight fell'(88.8%), 'I have a stiff neck'(88.8%), 'I fell pain in the shoulder'(85.0%), 'I feel cold and painful in the eyes'(76.9%), 'I feel the dry sense of eyeball'(76.2%), 'My nerves are edgy, and I an fretful, (75.6%), 'I feel pain in the waist'(73.2%) and 'I fell pain in the back'(72.8%). It emerged that the subject use the apparatuses for office automation complained of self-consciousness symptoms related to visual symptoms and musculoskeletal symptoms. 2. As for the general feature of examination subjects, the result to see the distribution by classifying into sex, age, school career, use career of apparatuses for office automation, skillfulness degree of the use of apparatus for office automation, use hours of the apparatuses for office automation per 1 day, type of business of the apparatus for office automation, rest hours during the use of apparatus for office automation, satifaction degree of business of office automation, and work circumstance, etc. emerged as follows : As for the sex of subjects, the distribution showed that men were 58.8% and women were 41.3%, Age was average 26.9. As the distribution of school career, the distribution showed that4below the graduation of high school' was 58.8%, 'graduation from junior college-university' was 35.0%, and 'over graduate school' was 6.3%. In the question to ask the existence or non-existence of experience of health consultation in connection with the work of office automation, the response that I had the consultation exprience and I feel the necessity emergerd as 90.1% And, the case that the subject who didn't wear the glasses or lens before using the OA apparatus wear glasses or lens after using OA apparatus emerged as 28.3% of whole. As for the existence or non-existence of use career of OA apparatus, the case under 3 years was highest as 52. 7%. As for the skillfulnness degree about the use of apparatus for office automation, most of them are skillful with the fact that 'common' was 44.4%, 'skill' was 42.5%, and 'unskillful' was 13.1% As for the use average hours of the apparatus for office automation per 1 day, the distribution showed that the case under 3-6 hours was 33.1%, the case under 6-9 hours was 28.1%, the case under 3 hours was 30.6%, and the case over 9 hours was 8.1% Main OA business and the use hours for 1 day showed in the order of keeping and retrieval, business of information transmission(162min), business of information transmission(79.3 min), business of document framing(55.5 min), and business of duplication and printing(25.4min). as for the rest during the use of apparatus for affice automation, that I take rest occasion demands the major portion, but that I take after completing the work emerged as 33.8%. Though the subiness gets to be convenient by the use of the apparatus for of office automation, respondents who showed the dissatisfaction about the present OA business emergd high as 78.1%. The work circumstances of each office was good with the fact that the temperature of office was 21.8, noise was average 42.7db, and the illumination was average 364.4 lx, in the light of ANSi/HFS 100 Standard. 3. Sight syptom, musculoskeletal symptom, skin and other symptoms showed the significant difference according to the extent of skillfulness of the apparatus for office automation. All the symptoms exept skin symptom showed the difference according to the use hours of the apparatus for office automation. All the question items exept the sytoms of digestive organs and the rest hours during the apparatus for office automation showed the signicant difference. The question item which showed the signicant difference from the satisfaction degree of present OA business showed the significant difference from all the question item classified into 6 groups. But, age and school career didn't significant difference from the complaint of any self-consciousness symptoms.