• 한국응급구조학회지
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• 제13권1호
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• pp.19-33
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• 2009

Purpose : To check the legal relation between rescue team and patient as well as legal responsibility for patient's damage intentionally or erroneously caused by rescue member, a public official, in the performance of relevant job ; to prevent legal dispute over rescue team and to present program for fair settlement of dispute and equitable and feasible burden of damage. Method : First, the legal principle of Civil Law, Criminal Law and Administrative Law related to the theme of this research will be investigated around research by literature. Second, the case of dispute related to rescue team will be introduced. Result: 1. If 119 rescue members as a public official intentionally or erroneously cause damage to patient in the performance of job, they shall bear civil, criminal and administrative responsibility. They shall bear civil responsibility for indemnity for damage due to default or tort. The typical criminal responsibility includes accidental homicide arising out of duty, preparing falsified official document, dereliction of duty, etc. In the administrative side, the state is responsible for indemnity for peculiar status of the rescue member, public official. 2. Though raising civil petition or legal dispute over unsatisfactory rescue service may be reasonable to guarantee the right of nation, such action may cause stress to rescue member as well as may lead to mental shrinking and defensive attitude only to take the basic first aid treatment which has low possibility of mistake instead of active first aid treatment so as to avoid legal responsibility. 3. The program that may prevent legal dispute over 119 rescue team includes expansion of manpower specialized in first aid treatment, enhancement of education on legal environment, development and application of standard job guideline, formation of mutual trust with patient, detailed explanation, preparing and keeping minute record, improvement of the rescue members' ability of first aid treatment and development of medical instruction mode. Conclusion : The best policy is to prevent legal dispute. If it is impossible to basically exclude the possibility of dispute, however, we need to make effort to minimize the occurrence, settle fairly and divide damage equitably and feasibly. To improve the preventible death rate of our first aid system to the level of advanced country, 119 rescue team which is in charge of the stage before hospital needs to positively enforce special first aid by improving the qualitative level of rescue service and to strive to prevent legal dispute that may occur in the process.

• 한국중재학회지:중재연구
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• 제31권2호
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• pp.77-98
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• 2021

International commercial mediation of intellectual property rights fully meets the interests of the parties in such disputes in terms of their needs for neutral forum of dispute resolution, cost-effective settlement, objective opinion of relevant experts, internationally enforceable solution. In addition, as a procedural flexibility, respected self-determination of the parties, exploration of possible creative business solutions, maintenance of business relationship and confidentiality of mediation are major characteristics which can be competitively differentiated from the lawsuit or arbitration. The settlement agreement as a result of the WIPO mediation has an effect of contract while the settlement agreement as a result of most domestic ones has an effect of judicial reconciliation which can be domestically enforced. The latter is not subject to the application of the Singapore Convention on Mediation which establishes a harmonized legal framework for the right to invoke settlement agreements as well as for their enforcement. The WIPO international mediation system and its experience may be a good reference for Korea to take an initiative to establish a globally competitive international mediation system in the area of intellectual property rights.

• 한국중재학회지:중재연구
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• 제21권1호
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• pp.3-31
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• 2011

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. It could be the object of arbitral proceedings that disputes which are capable of a settlement by arbitration. It is a matter for debate that disputes containing punitive damages may be resolved by arbitration. This problem is concerning the arbitrability of the subject-matter of a dispute. To offer some solution to these issues, it is necessary to inquire into the nature of punitive damages. the policy and function of alimony, the fair apportionment of a loss. Moreover, international relations formed with international transactions should be considered. Punitive damages would be the object of arbitral proceedings as the dipute in private laws. When punitive damages pursue only punishment in the domestic arbitration that there is not foreign factors, arbitral tribunal could not make arbitral award containing punitive damages. However, if punitive damages are admitted under the rules applicable to substance of dispute, and there is the arbitration agreement in which is implied that the parties agree to submit to an arbitral award, arbitral tribunal could make arbitral award containing punitive damages in international arbitration. When it is questionable whether it is offend against our public policy or not, that we accept the effect of arbitral award containing punitive damages, and we admit the enforcement of it, we have to take the nature of punitive damages, the policy and function of alimony, the fair apportionment of a loss and the stability of international transactions into consideration.

• 한국중재학회지:중재연구
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• 제12권2호
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• pp.373-418
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• 2003

This is to study intellectual property(IP) protection of contents which is related with transactions upon internet network. Issues of electronic transaction and infringement cases were studied and analyzed for intellectual property protection. Upon those study, utilization and activation of contents, dispute settlement and method of IP protection were suggested. To achieve this study purpose, it consists of 5 chapters. In chapter 1 introduction, it's mentioned purpose, scope, and method of this study. In chapter 2, outline of contents and e-Commerce, and subject of IP protection upon internet were studied. In chapter 3, issues and dispute factors of IP were discussed and infringement cases were analyzed. It found out that infringements would be variety and complex due to technology rapidly changes. In chapter 4, IP protection plan and responsibility of webmaster were studied and emphasized to protect IP upon Internet. Also, protection against infringement and method of dispute resolution were studied and suggested the method. In this study, the protection plan was suggested because IP protection of contents in internet would be many cases upon internet technology. It found out that technology was important for business expansion of contents, e-Commerce and IP protection, and to enact a law related with IP. In chapter 5 conclusion, this study was summarized and further research was suggested. This study results are 1. IP related laws had better enact or revise to meet internet technology changes for IP protection timely, 2. local laws are to change and develop to harmony with international norm and trends, 3. consolidation of IP related laws for unification of IP statement should be incurred to avoid unnecessary energy of legislation and not to create dispute matters. That's also for customer satisfaction. In conclusion, not to incur ADR and for IP protection of contents, IP related laws would be promptly made or revised, according to technology change trends and for international harmony, That's for internet related industry development and customer satisfaction.

• 한국중재학회지:중재연구
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• 제17권1호
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• pp.137-155
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• 2007

Since China joined the WTO, the trade between Korea and China has continued to grow by leaps and bounds, making both nations become mutually important trading partners to each other. The volume of trades with China showed a rapid upward trend with an average annual increase rate of 20% and the resultant dispute is also rising. Thus, this study was aimed to make some suggestions and come up with ways of responding claims by surveying Korean trading firms which have experience in making transactions with China to investigate the current status and the actual condition of their occurrence. As a result of this study, firstly, the main cause of such dispute was shown to be the failure to perform the agreement. Secondly, there were malty verbal agreements and due to a deterioration of trust in Chinese firms, the method of a letter of credit was adopted by many Korean firms. Thirdly, the payment and credit appeared to be most important in transactions with China. A credit inquiry is a must in future transactions with China. Fourthly, the indirect cause of the occurrence of trade claims was the difference in commercial practices and as for the way of settling disputes, the agreement through negotiations between the parties involved was the most. Fifthly, small and medium firms should make more of their credit and English proficiency than large ones do.

• 한국중재학회지:중재연구
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• 제27권4호
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• pp.179-198
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• 2017

The OECD Guidelines for Multinational Enterprises (The Guidelines) was initially promulgated in 1976 as a form of annex to the OECD Declaration on International Investment and Multinational Enterprises. The Guidelines aims at accomplishing the implementation and dissemination of the Responsible Business Conduct. The latest version of The Guidelines, as revised in 2011, directed 47 adhering countries to The Guidelines to set up their respective National Contact Points (NCPs). NCPs are The Guidelines' dispute resolution mechanism for specific instances arising from breach by multinational enterprises of The Guidelines. Korea to date has its own NCP performing its role to offer good offices and facilitates settlement between the parties to the specific instances regarding The Guidelines. However, there has been strong criticism from NGOs and civil society that Korea NCP has not performed well due to lack of transparency and impartiality, especially in the context of the governance of Korea NCP. Under this circumstance, this paper ⅰ) examines current status and problems of Korea NCP, ⅱ) evaluates the core criteria for function and governance of NCPs through a comparative overseas cases study, and ⅲ) suggests improvement plans for Korea NCP.

• 한국중재학회지:중재연구
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• 제22권2호
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• pp.79-101
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• 2012

In 2010, the United Nations Commission on International Trade Law (UNCITRAL) initiated work on the settlement of disputes in international e-commerce through online dispute resolution (ODR). The basic goal is to use ODR to resolve disputes with low value but high volume in international e-commerce. The background is that consumers have no way to solve their legal problems in this area. An ODR system is intended to create a new way to enforce their rights. However, the legal situations of the countries in the e-commerce sector, particularly in consumer protection, are very diverse. Thus, no reasonable model for conflict resolution is available. Some countries consider this as public policy and want absolute protection of their consumers. Other countries want to encourage freer e-commerce trading. This diversity of consumer protection policy is an obstacle to ODR. However, sooner or later, reaching an agreement is feasible because each representative is making a reasonable effort to reach the goal.

• 분석과 대안
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• 제2권1호
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• pp.31-69
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• 2018

This study examines the role of science in resolving trade disputes. After the Great East Japan Earthquake of 11 March 2011 that not only jeopardized the people of Japan, but also put the safety of an entire region at risk, the Republic of Korea (Korea) has imposed import bans as well as increased testing and certification requirements for radioactive material on Japanese food products. Japan has challenged these restrictions at the World Trade Organizations Dispute Settlement Body (DSB). This study aims to explain how international trade agreements and previous DSB rulings have dealt with different scientific viewpoints provided by confronting parties. In doing so, it will contrast the viewpoints espoused by Korean and Japanese representatives, and then analyzes the most similar case studies previously ruled on by the DSB, including the case of beef hormones and the case of genetically modified crops including biotech corn, both between the United States and the European Communities (EC). This study finds that science is largely subordinate to national interests in the case of state decision-making within the dispute settlement processes, and science has largely been relegated to a supportive role. Due to the ambiguity and lack of truly decisive decisions in the Appellate Body in science-based trade disputes, this study concludes that the Appellate Body avoids taking a firm scientific position in cases where science is still inconclusive in any capacity. Due to the panel's unwillingness to establish expert review boards as it has the power to do, instead favoring an individual-based system so that all viewpoints can be heard, it has also developed a system with its own unique weaknesses. Similar to any court of law in which each opposing party defends its own interests, each side brings whatever scientific evidence it can to defend its position, incentivizing them to disregard scientific conclusions unfavorable to their position. With so many questions that can arise, combined with the problems of evolving science, questions of risk, and social concerns in democratic society, it is no wonder that the panel views scientific information provided by the experts as secondary to the legal and procedural issues. Despite being ruled against the EC on legal issues in two previous cases, the EC essentially won both times because the panel did not address whether its science was correct or not. This failure to conclusively resolve a debate over whose science is more scientific enabled the EC to simply fix the procedural issues, while continuing to enforce trade restrictions based on their scientific evidence. Based on the analysis of the two cases of disputes, Korea may also find itself guilty of imposing an unwarranted moratorium on Japan's fish exports, only to subsequently pass new restrictions on labelling and certification requirements because Japan may have much scientific evidence at its disposal. However, Korea might be able to create enough uncertainty in the panel to force them to rule exclusively on the legal issues of the case. This will then equip Korea, like the EC in the past, with a way of working around the ruling, by changing whatever legal procedure they need to while maintaining some, if not most, of its restrictions when the panel fails to address its case on scientific grounds.

• 자원ㆍ환경경제연구
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• 제13권3호
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• pp.519-547
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• 2004

본 논문은 2002년 3월 21일 EU의 제안서 제출로 시작된 DDA 각료선언문 para. 31(i)하에서 이루어지고 있는 무역-환경 논의쟁점에 기초하여 바이오안전성 맥락에서 특정무역의무 범위문제, 분쟁해결절차의 적용과 비당사국문제를 분석하였다. DDA 무역-환경 논의분석 결과에 기초하여 제시된 LMOs의 바이오안전성 확보를 위한 국가차원의 대응방향은 다음과 같다. 첫째, LMOs 수입국인 우리나라의 경우 넓은 범위의 바이오안전성의정서상 STOs의 WTO 수용은 LMOs 및 바이오산업에 손실에 초래시키지 않을 것이다. 오히려 수입 LMOs에 대한 안전성 확보를 위한 높은 수준의 보호를 보장할 것이다. 하지만, 수출국들은 LMOs의 수출에 대한 부정적인 영향을 보전하기 위해 다른 형태의 무역조치를 취할 수 있어, 그로 인한 영향을 감수해야 할 것이다. 수출국이 되는 경우 넓은 범위의 바이오안전성의정서상 STOs의 WTO 수용은 수출되는 LMOs 제품에 좋은 영향을 미치지는 못할 것이다. 따라서 생명공학기술의 진보속도 및 수준, LMOs 연구개발 및 생산추이 등과 STOs로 인한 여타 산업의 상황을 고려한 비용-편익분석을 통해 특정무역조치에 따른 시나리오를 구성하고, 시나리오별 중 단기 및 장기적 차원에서의 대응책을 마련해야 할 것이다. 둘째, 사회적 합리성에 근거하고 있는 바이오안전성의정서와 과학적 합리성에 근거하고 있는 WTO 규정은 상당 부분 상충되고 있어 분쟁해결시 어떠한 원칙을 적용할 것인가의 문제에 대한 합의는 쉽지 않을 것이다. 그렇기 때문에, 장기적인 논의가 요구되는 사안이다. 이러한 자원에서 LMOs 수입국인 우리나라는 현대생명공학기술에 의한 산물인 LMOs와 같은 신제품에 대해서는 과학적, 환경적, 사회 경제적 관점에서 다각적인 검토를 통한 국가간 이동에 대한 적절한 보호수준을 보장하기 위해 국제적 노력이 필요하다는 입장을 지속적으로 견지해야 할 것이다. 셋째, 바이오안전성의정서 당사국과 비당사국 간의 분쟁시 바이오안전성의정서 비당사국(만약, WTO 회원국일 경우)의 WTO 의무는 유효하다. 그렇기 때문에, 비당사국 바이오안전성의정서 당사국과의 LMOs 분쟁시 WTO 규정에 의한 문제해결을 시도할 것이다. 그렇지만, LMOs의 건전하고 안전한 이용을 위해서는 국가간 이동에 따른 적절한 보호수준을 보장해야만 한다. 이러한 맥락에서 우리나라는 MEAs를 충분히 고려해야 한다는 EU의 견해를 견지하되, 바이오안전성의정서 당사국과 비당사국(만약, WTO 회원국일 경우)간 분쟁가능성을 미연에 방지하기 위한 차원에서 바이오안전성 확보를 위한 무역규제조치 전 바이오안전성의정서에서 규정하고 있는 정책수단들을 적극 활용할 수 있는 방안을 다각도로 마련해야 할 것이다.

• 한국중재학회지:중재연구
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• 제12권1호
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• pp.271-321
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• 2002

Every year, many million of business transactions take place. Ocassionally, disagreements develop over these business transactions. Many of these disputes are resolved by mediation, arbitration and out-of-court settlement options. The American Arbitration Association(AAA) helps resolve a wide range of disputes through mediation, arbitration, elections and other out-of-court settlement procedures. The AAA offers a broad range of dispute resolution services to business executives, attorneys, individuals, trade associations, unions, management, consumers, families, communities, and all level of governments. The 198,491 cases composed of the 194,303 arbitration cases and the 4,188 mediation cases, were filed with the AAA in 2000. These case filings represent a full range of matters, including commercial finance, construction, labor and employment, environmental, health care, insurance, real state, securities, and technology disputes. The Korean Commercial Arbitration Board (KCAB) does more than render arbitration services. It helps facilitate settlements and guarantee implementation thereof between trading partners at home and abroad involving disputes related to such areas as the sale of commodities, construction, joint venture agreements, technical assistance, agency agreements, and maritime transport. The 643 cases composed of the the 197 arbitration cases and the 446 mediation cases, were filed with the KCAB in 2001. There are some differences between the AAA and the KCAB regarding the number and the area of mediation and arbitration case filings, the breath of service offerings, the scope of alternative dispute resolution, and the education and training. In order to apply to the proceedings of the commercial mediation and arbitration, the AAA has the Commercial Mediation Rules, the Commercial Arbitration Rules, the Expedited Procedures, the Optional Procedures for Large, Complex Commerical Dispute, and the Optional Rules for Emergency Measures of Protection as amended and effective on September 1, 2000. In order to apply to the proceedings of commercial arbitration, the KCAB has the Arbitration Rules as amended by the Supreme Court on April 27, 2000, which have been changed to incorporate the revisions of the Arbitration Act that went into effect on December 31, 1999. There are some differences between the AAA's commercial Arbitration Rules and the KCAB's Arbitration Rules regarding the clauses of jurisdiction and administrative conference, number of arbitrators, communication with arbitrator, vacancies, preliminary hearing, exchange of information, oaths, evidence by affidavit and posthearing filing of documents or others, interim measures, serving of notice, form of award, scope of award, delivery of award to parties, modification of award, release of liability, administrative fees, neutral arbitrator's compensation, and expedited procedures. In conclusion, for the vitalization of KCAB and its ADR system, the following measures should be taken : the effective case management, the development of on0-line ADR, the establishment of ADR system of electronic commerce disputes, and the variety of dispute resolution rules in each expert field.