• 한국중재학회지:중재연구
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• 제28권2호
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• pp.217-248
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• 2018

This paper reviews the Supreme Court of Japan in Decision of December 12, 2017, 2016 (Kyo) 43 (2011) concerning arbitrator's duty of disclosure and reasonable investigation under the Japan Arbitration Act (Arbitration Act). The Supreme Court of Japan recently issued a precedential decision interpreting, for the first time, the arbitrator disclosure requirements of the Arbitration Act. Under Article 18(4) of the Arbitration Act, arbitrators have an ongoing obligation to disclose circumstances which may give rise to justifiable doubts as to their impartiality or independence. The Supreme Court held that Article 18(4) of the Arbitration Act - requiring arbitrators to disclose all "facts likely to give rise to doubts as to his/her impartiality or independence" - (1) is not satisfied by blanket disclosures or advance waivers of potential future conflicts, and (2) requires disclosure of facts both known to an arbitrator or "that can be normally ascertained by an investigation that is reasonably possible${\cdots}$" This new standard presents opportunities and challenges for enforcing arbitration awards in Japan, and suggests measures that both arbitrators and parties can use to protect their awards. Also, the Supreme Court's new standards for evaluating arbitrator conflict disclosures suggest some measures that both arbitrators and parties to arbitration in Japan can take to protect the enforceability of their awards. The key factual question posed by the Supreme Court's ruling was whether an arbitrator's conflicts check was reasonable. Maintaining records regarding a review of potential conflicts or any investigation provides a ready source of proof in case of a future challenge. The Supreme Court has spoken clearly that so-called advance waivers of potential conflicts are not effective under Japanese law. Instead, to the extent that potential conflicts arise during the course of arbitration, they should be specifically disclosed.

• 한국중재학회지:중재연구
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• 제23권1호
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• pp.153-175
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• 2013

The issue of patent validity becomes a subject of dispute under the FTA and there is a definite difference of opinion between China, Japan, and Korea. In other words, the validity of a judgment on the patent was exclusively under the jurisdiction of the administrative agency at a particular patent office. Thus, the issue arises where there is a potential judgment on patent validity. In this case, the Supreme Court rather than the patent office can offer a judgment from a judicial institution and can make a judgment in the case of a medication. In China, however, the lowest possibility of judgment on patent validity is predicted to occur in judicial institutions. Such a judgment is recognized as the Grand Bench Decision in Korea, and the court can judge the patent validation rather than the patent office. That is just the case in the Kilby case-it is invalid for reasons obvious in Japan. Therefore, there is a substantial difference between the three countries. Especially in Japan, where after the Kilby case, they revised the patent law in 2004 to introduce Article 104-3, placing the judgment of patent validity in the court, even if the "Apparentness"is not requisite. Per this law, infringers can argue for patent invalidity not only the judgment of the patent invalidation but also the infringement lawsuit. From the point of view of Japan, Korea became the judgment of trademark validation by extension and obvious cases can become directly to judge through the Supreme Court about the right that needs to examinations and registrations. In terms of the mediation, it also provides a clue about the judgment of intellectual property validation and expands the scope of the mediation in the future. From now on, in order to have active mediation procedures in the three countries, China, Japan, and Korea would need to unify regulations and application scopes for mediation in the FTA negotiation and to look forward to achieve a vigorous mediation approach.

• 법제연구
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• 제41호
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• pp.337-366
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• 2011

본고는 신국립극장운영재단사건 및 INAX메인트넌스（メンテナンス）사건(事件)에서의 일본 최고재판소의 판결을 소재로 하여 이른바 개인도급계약형식에 따라 노무제공을 한 자의 노동조합법상의 근로자성을 검토한 것이다. 일본 최고재판소의 판결에 관한 연구결과는 세 가지의 문제로 집약할 수 있을 것이다. 첫째, 근로자성을 인정한 결론에 있어서는 평가할만하다는 것이다. 특히 우리나라의 판례법리, 즉 독립된 계약자 형태의 노무제공에 대하여 지나치게 법적인 관점에서 파악함으로써 그 판단결과는 노무제공의 실태와는 괴리가 있다는 것이다. 근로기준법상의 근로자성 판단에서와 같이 노동관계법에서도 완화된 종속성 내지는 실태에 입각한 판단이 요청된다고 하겠다. 둘째, 노동조합법상의 근로자성 판단에 대한 일반법리가 전개되지 못하였다는 것이다. 종래의 CBC관현악단사건에서와 같은 종합적인 판단이라는 방법을 취함으로써 사례판단에 한정되어, 명확성 및 예측가능성이 결여되고 있다는 것이다. 둘째, 노동조합법 제3조의 근로자 개념과 동법 제7조 2호의 고용하는 근로자 등과의 단체교섭문제에 있어서 최고재판소는 이들 두 규정의 관계에 대하여 명확한 입장을 밝힌 바가 없다. 학설상 다수의 입장은 동 법 제3조의 근로자와 동 법 제7조 2호의 근로자는 전자가 넓은 의미로 보아야 하고, 후자는 자회사 근로자의 모회사와의 관계 등을 포함하여 일정한 고용관계가 형성되는 경우에는 부당노동행위의 구제신청과 관련하여 이를 인정할 수 있는 것으로 해석한다. 그럼에도 불구하고 최고재판소는 수급인 근로자들의 도급인에 대한 단체교섭권을 인정하고 있다는 것은 우리나라에 시사하는 바가 크다고 하겠다.

• 항공우주정책ㆍ법학회지
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• 제33권1호
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• pp.45-79
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• 2018

항공기나 군용기의 운용이 폭발적으로 증가함에 따라, 공항이나 비행장 인근 주민들이 항공기 운항으로 인한 소음 진동 등을 이유로 손해배상을 청구하거나 비행을 금지하는 경우가 점차 늘어나고 있다. 최근에는 원고는 토지의 소유권에 터 잡아 피고를 상대로 토지의 상공을 헬기의 이 착륙 항로로 사용하는 행위의 금지를 구하는 소를 제기하였고, 대전고등법원에서 청구를 인용한 사례가 있다. 비록 위 판결은 대법원에서 파기되었지만, 비행금지청구에 관한 논의가 필요하다. 일본에서는 공항소음소송이 환경단체를 중심으로 오래 전부터 제기되어 왔는데, 소음피해로 인한 손해배상을 인정하는 경우와 달리 비행금지청구를 인용한 판결은 2014. 5. 21. 요코하마 지방재판소에서 처음 선고되었다. 위 판결은 항소심에서 일부 변경되어 원고의 청구가 일부 인용되었으나. 최고재판소에서 파기 환송되었다. 아쓰기(厚木) 기지는 미국과 일본이 공동으로 사용하는 기지인데, 인근주민들은 아쓰기 기지에 이착륙하는 항공기에서 발생하는 소음에 의해 신체적 피해 및 수면방해, 생활방해 등의 정신적 피해를 받고 있다고 주장하면서, 방위청장관이 소속되어 있는 국가에 대하여 자위대기 및 미군기의 운항금지 등을 요구하는 행정소송을 요코하마 지방재판소에 제기하였다. 제1심은 "부득이하다고 인정하는 경우를 제외하고"라는 제한을 부과하여 매일 오후 10시부터 다음날 오전 6시까지 자위대기의 비행을 금지하는 판결을 선고하였고, 위와 같은 결론은 항소심에서도 유지되었다. 그러나 최고재판소는 자위대기의 비행금지청구를 인용한 원심판결을 파기하고, 그 부분에 해당하는 제1심 판결을 취소하였으며, 원고들의 청구를 기각하였다. 최고재판소는 자위대기의 운항은 고도의 공공성이 인정되고, 소음피해는 경시할 수 없으나 상응하는 대책을 강구할 수 있으므로, 방위청장관의 권한행사는 타당하다고 판시하였다. 우리나라에서도 군용기지 인근주민들이 미국이나 대한민국 또는 국방부장관을 상대로 군용기 비행금지를 구하는 소를 제기할 수 있다. 만약 군용기지 부근의 주민들이 미국정부를 상대로 미군기 비행금지를 청구하는 소를 제기하면, 법원은 재판권면제를 이유로 소장각하명령을 하여야 한다. 현행 판례 법리에 따르면, 국방부장관을 상대로 군용기의 비행금지를 청구하는 의무이행소송이나 무명항고소송은 허용되지 아니하므로, 그러한 소는 부적법하다. 다만, 행정소송법이 개정되어 의무이행소송이 도입된다면 소제기는 적법하게 될 수 있다. 군용기 운항에 관한 행정처분이 위법하다고 판단하기 위해서는 청구가 허용될 경우 인근주민이 받을 이익과 상대방 및 제3자가 받게 될 불이익 등을 비교 형량해 보아야 한다. 국방부장관으로서는 군용기의 운항으로 인한 이익(초계임무나 대잠활동 등 국방상 필요, 항공정보의 획득 제공, 재해파견 등 민생협력 활동, 해적대처 등 국제공헌, 교육 훈련 등)이 인근주민이 군용기 비행금지로 인하여 얻는 이익보다 훨씬 크다는 점을 주장 증명할 필요가 있다.

• 한국중재학회지:중재연구
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• 제21권1호
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• pp.57-72
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• 2011

According to Japanese Patent Act, the Japanese Patent Office, administrative organization, was authorized to decide validation of patent. However, Supreme Court of Japan held that a court is able to decide the invalidation of patent in 11th April, 2000, which caused the reform of Japanese Patent Act in June 2004. Reformed Patent Act established the article 104-3 and makes it for a court to decide the patentability where there are grounds for a patent invalidation. Through this amendment to the Patent Act, the legislative system to decide the patent validation has been reorganized and furthermore alleged infringer is allowed to argue against the patent validation by making use of infringement litigation procedure through defenses against patent invalidation as well as invalidation trial procedure for to file a request for a trial for patent invalidation to the Japanese Patent Office. That is to say, the article 104-3 was established in the Japanese Patent Act in the wake of Kilby, and thus a court, which is judicial authority, not administrative disposition agency is also able to decide the patent validation. Thus this article discuss how a court, the authority of which only patent infringement cases fell under, has been authorized to arbitrate cases about the patent validation and the decision of the patent validation in a court.

• 한국중재학회지:중재연구
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• 제25권4호
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• pp.77-95
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• 2015

CISG provides a uniform framework for contracts of sale of goods between parties whose places of business are in different States. In 2004 South Korea became the 63th State around world to adopt CISG. Starting next year CISG goes into effect as the law that governs the contracts for international sale of goods, in respect of which CISG displaces the existing domestic civil and commercial codes of Korea. By its provision Article 1(a), CISG applies directly between Contracting States without reference to private international law. As South Korea's biggest trade partners including China, the U.S. and Japan are also parties to CISG, the number of such direct applications continuously increases. Now it is estimated, though roughly, that CISG governs about two-thirds of Korea's import and export trade of goods. The private survey of the author shows that up to now in South Korea there are 39 court cases decided by the first instance courts, 29 cases by the appellate court and six cases by the Supreme Court of South Korea. In nearly all these cases, CISG applied directly. Furthermore, currently CISG is, in several respects, influencing upon the revision of Korean civil code which is designed to modernize it: The revised draft published in 2013 adopts the rules on the revocation of offers provided in articles 15 and 16, the rule on the termination of offers provided in article 17 and the rule on the time that an acceptance takes its effect provided in article 18 of CISG. More importantly, in accordance with the rules taken by CISG, the revision draft no longer requires the existence of fault or negligence on behalf of the breaching party in order for the aggrieved party to void the contract, and the revised draft denies the right of avoidance for trivial, not fundamental, breaches of contract.

• 대한족부족관절학회지
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• 제28권3호
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• pp.87-95
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• 2024

This study examined the levels of satisfaction from medical staff and patients by analyzing 691 Supreme Court precedents on medical practice from legal disputes in Korea, which are developing into a dual medical system. In addition, the issues that can be prevented in the medical field through the flow and judgment of legal disputes in medical practice after the revision of the medical law are discussed. The concept of medical practice not specified in the Medical Law was examined and compared with the medical-legal systems of Germany, Japan, and the USA through international comparative analysis to assess the illegal factors occurring in the medical field by analyzing the legal approach, medical practice, and medical personnel qualifications of each country. An analysis of the Supreme Court's case law revealed the timing analysis of issues in legal disputes related to medical practice, the incidence rate among the subjects of the cases, and medical personnel to be significant. The meaning was studied by finding the law that applied to it. Important cases were identified, and their meaning was reviewed. The legal issues of medical practice in orthopedics were divided into five sections based on precedents, such as problems in consent to information at the start of treatment, problems in prior radiography before treatment, explanation of the consent process for surgical treatment, problems related to the qualification of operators in the operating room, and the responsibility for postoperative results. In the wake of the recent major crisis in the government's medical reform policy (Essential medical package), procedural problems and legal reviews of illegal medical practices and their qualifications in the medical field were conducted because of the lack of medical personnel.

• 한국중재학회지:중재연구
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• 제30권3호
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• pp.115-136
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• 2020

This article provides an overview of the state of affairs of arbitrator disclosure obligations in Korea. It shows how Korean courts will analyze arbitrator conflicts and obligations through an evaluation of Supreme Court judgments and a case-specific analysis of the recent Oilhub case and provides a comparative perspective through a review of recent Japanese case law. Although limited to domestic arbitrations, it assesses the various grounds that courts consider when determining impermissible arbitrator conflicts based on relations with parties and when an award might be set aside as a result. With the 2016 adoption of the KCAB Code of Ethics for Arbitrators and its rigorous standards, great clarity has been brought to the landscape. The Code of Ethics marks a significant milestone in enhancing the robustness of arbitrator disclosures and guaranteeing the fairness, integrity, and transparency of Korean arbitration practice and law.

• 항공우주정책ㆍ법학회지
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• 제1권
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• pp.147-162
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• 1989

The current status of the application and interpretation of the Warsaw Convention and its subsequent Protocols in Asian countries is in its fredgling stages compared to the developed countries of Europe and North America, and there is thus little published information about the various Asian governments' treatment and courts' views of the Warsaw System. Due to that limitation, the accent of this paper will be on Korea and Japan. As one will be aware, the so-called 'Warsaw System' is made up of the Warsaw Convention of 1929, the Hague Protocol of 1955, the Guadalajara Convention of 1961, the Guatemala City Protocol of 1971 and the Montreal Additional Protocols Nos. 1,2,3 and 4 of 1975. Among these instruments, most of the countries in Asia are parties to both the Warsaw Convention and the Hague Protocol. However, the Republic of Korea and Mongolia are parties only to the Hague Protocol, while Burma, Indonesia and Sri Lanka are parties only to the Warsaw Convention. Thailand and Taiwan are not parties only to the convention or protocol. Among Asian states, Indonesia, the Phillipines and Pakistan are also parties to the Guadalajara Convention, but no country in Asia has signed the Guatemala City Protocol of 1971 or the Montreal Additional Protocols, which Protocols have not yet been put into force. The People's Republic of China has declared that the Warsaw Convention shall apply to the entire Chinese territory, including Taiwan. 'The application of the Warsaw Convention to one-way air carriage between a state which is a party only to the Warsaw Convention and a state which is a party only to the Hague Protocol' is of particular importance in Korea as it is a signatory only to the Hague Protocol, but it is involved in a great deal of air transportation to and from the united states, which in turn is a party only to the Warsaw Convention. The opinion of the Supreme Court of Korea appears to be, that parties to the Warsaw Convention were intended to be parties to the Hague Protocol, whether they actually signed it or not. The effect of this decision is that in Korea the United States and Korea will be considered by the courts to be in a treaty relationship, though neither State is a signatory to the same instrument as the other State. The first wrongful death claim in Korea related to international carriage by air under the Convention was made in Hyun-Mo Bang, et al v. Korean Air Lines Co., Ltd. case. In this case, the plaintiffs claimed for damages based upon breach of contract as well as upon tort under the Korean Civil Code. The issue in the case was whether the time limitation provisions of the Convention should be applicable to a claim based in tort as well as to a claim based in contract. The Appellate Court ruled on 29 August 1983 that 'however founded' in Article 24(1) of the Convention should be construed to mean that the Convention should be applicable to the claim regardless of whether the cause of action was based in tort or breach of contract, and that the plaintiffs' rights to damages had therefore extinguished because of the time limitation as set forth in Article 29(1) of the Convention. The difficult and often debated question of what exactly is meant by the words 'such default equivalent to wilful misconduct' in Article 25(1) of the Warsaw Convention, has also been litigated. The Supreme Court of Japan dealt with this issue in the Suzuki Shinjuten Co. v. Northwest Airlines Inc. case. The Supreme Court upheld the Appellate Court's ruling, and decided that 'such default equivalent to wilful misconduct' under Article 25(1) of the Convention was within the meaning of 'gross negligence' under the Japanese Commercial Code. The issue of the convention of the 'franc' into national currencies as provided in Article 22 of the Warsaw Convention as amended by the Hague Protocol has been raised in a court case in Korea, which is now before the District Court of Seoul. In this case, the plaintiff argues that the gold franc equivalent must be converted in Korean Won in accordance with the free market price of gold in Korea, as Korea has not enacted any law, order or regulation prescribing the proper method of calculating the equivalent in its national currency. while it is unclear if the court will accept this position, the last official price of gold of the United States as in the famous Franklin Mint case, Special Drawing Right(SDR) or the current French franc, Korean Air Lines has argued in favor of the last official price of gold of the United States by which the air lines converted such francs into us Dollars in their General Conditions of Carriage. It is my understanding that in India, an appellate court adopted the free market price valuation. There is a report as well saying that if a lawsuit concerning this issue were brought in Pakistan, the free market cost of gold would be applied there too. Speaking specifically about the future of the Warsaw System in Asia though I have been informed that Thailand is actively considering acceding to the Warsaw Convention, the attitudes of most Asian countries' governments towards the Warsaw System are still wnot ell known. There is little evidence that Asian countries are moving to deal concretely with the conversion of the franc into their own local currencies. So too it cannot be said that they are on the move to adhere to the Montreal Additional Protocols Nos. 3 & 4 which attempt to basically solve many of the current problems with the Warsaw System, by adopting the SDR as the unit of currency, by establishing the carrier's absolute liability and an unbreakable limit and by increasing the carrier's passenger limit of liability to SDR 100,000, as well as permiting the domestic introduction of supplemental compensation. To summarize my own sentiments regarding the future, I would say that given the fact that Asian air lines are now world leaders both in overall size and rate of growth, and the fact that both Asian individuals and governments are becoming more and more reliant on the global civil aviation networks as their economies become ever stronger, I am hopeful that Asian nations will henceforth play a bigger role in ensuring the orderly and hasty development of a workable unified system of rules governing international commercial air carriage.

• 한국중재학회지:중재연구
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• 제30권4호
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• pp.163-177
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• 2020

There are several ways to implement charter parties in the operation of the vessel. Under the time charter party, the charterer borrows the vessel from the shipowner and uses the vessel to benefit his business. The time charter party's legal relationship can be divided into internal and external relationships. This article deals with an internal relationship. The legal matters between the shipowner and charterer are regulated by the agreement. The NYPE is the most widely circulated type of time charter party. According to the NYPE, navigational matters fall upon the shipowner while business matter falls upon the time charterer. There are vague parts in interpreting NYPE articles. NYPE Art. 8, called the employment clause, is one of them. The Master employed by the shipowner should follow the order of the charterer. Whether the charterer has the right to order the Master of the vessel to follow the navigating route recommended by him was addressed in the Hill Harmony case by the UK Supreme Court. The court was affirmative. Under the Ocean Victory case, whether the time charterer has an obligation to order the Master to go out to escape heavy weather from the berth at the port was at issue. The Japanese lower court decided negatively. There is a tendency that many countries insert default rule in the maritime law to apply it to the case at issue in a case where there is no agreement. It serves the enhancement of legal stability; China, Japan, and Germany are such countries. The author thinks that Korea should follow the above three countries' revision of their maritime law.