• Journal of Arbitration Studies
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• v.22 no.3
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• pp.165-185
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• 2012

Franchising has proved over many years to be a successful commercial vehicle for the international distribution of products and services. However, there has long been missing a user-friendly model contract that would reflect the diversity of international franchising contracts. Because the ICC has drafted a model form of international franchising contracts, taking into account the most commonly encountered clauses in franchising agreements, their model could be used as a checklist of the core obligations of a cross-border franchise contract. Because there is no internationally agreed-upon uniform legislation on franchising, parties must rely on national laws and regulations applicable to the international franchise (when such laws and regulations exist) and should therefore very carefully draft stipulations for the legal status of the contract. This study has been intended to cite some provisions for striking a fair balance between the interests of the franchisor and those of the franchisee and for avoiding unfair trade acts in international franchising contracts.

• The Journal of the Korea Contents Association
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• v.12 no.11
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• pp.58-67
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• 2012

It is widely observed in the Korean broadcasting production industry that unfair trade practices occur either when the drawing up a contract is ill-timed, when the contract's stipulations do not adequately cover possibilities in reality, or when the contract is simply breached. In particular, the most prevalent cause of the breach of contracts lies in the broadcasting production practices. Hence, systematic efforts should be made to improve the daily practices of the production industry by ensuring that the whole production process is carried out by contract. In order to achieve this, the following are suggested: i) A preliminary contract is to be made prior to the main one. ii) A standard production contract, which can be used as a template for other sub-contracts such as writing contracts, acting contracts, employment contracts, and so on, needs be introduced. iii) The standard contract should stipulate the obligations of the personnel from broadcasting companies, the recognition of the rights of production companies that created formats, and the boundary of the autonomy that production companies can exercise during production, in particular. iv) Prohibitive provisions are to be introduced into the Broadcasting Law in order to limit the causes for unfair trade practices.

• Journal of the Korean Home Economics Association
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• v.42 no.12 s.202
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• pp.123-140
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• 2004

The purpose of this study was to explore the unfairness of adhesion contracts for internet contents service. The internet contents were classified into six types of avatar, learning, download, e-book and movie internet sites. The adhesion contracts of internet contents service were collected in 60 internet sites. The unfairness of the adhesion contract was reviewed under the adhesion contract regulation act. The major results were as follows. First, the obligation of clear statement, explanation, and delivery was not observed completely. Second, many articles of adhesion contract were unfair and they especially violated articles 7 and 9. Therefore, the standard adhesion contract system for internet content service should be enforced and self-regulation of information service providers is needed.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.58
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• pp.215-236
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• 2013

It is quite true that the more Korean contractors receive overseas contracts, the more they need guarantees. The top market for them is the Middle East countries, consisting of more than the half of the total amount awarded last year and the trend is increasing as well. The problem, however, is that employers in these countries are reluctant to use international rules for guarantee such as URDG or ISP98 and easily make unfair callings. However, Korean contractors(applicants), especially small and medium sized enterprises(SMEs) tend to hurriedly enter a contract without looking into its contents as well as guarantees. They do not realize the importance of the guarantees until they receive callings from the employers(beneficiaries). Being independent from the underlying contracts, guarantee is the equivalent to cash in that it usually does not require any proof of demand when calling and the guarantor should make a payment within usually 5 business days after the request. It is often observed these days that several Korean SMEs go bankrupt due to liquidity risks after receiving unfair callings from employers in the Middle East countries. In retrospect, some cases could be obviated if contractors were a little more careful in checking the contents of a guarantee at the time of concluding a contract. For example, there is one case where the underlying contract includes a reduction clause in the Advance Payment bond and the guarantee does not have that clause. In the end, the Korean contractor had to take the whole burden of the bond amount though it had finished 81% of the project. Nobody could argue that contractors should take a full responsibility if they fail in their obligations. However, the employer's wrongful callings need to be prevented in the first place, if possible. As there shouldn't be a case where one party is at a disadvantage against the other like the case mentioned above, useful insight is being sought to minimize unfair calling risks for the benefit of the applicant. First, the applicant should carefully look into every detail of the potential guarantee before signing a contract, heeding especially that there is a reduction clause in the AP bond. Second, the governing principles for guarantee should be the ones that are internally used such as URDG758 that is objective in terms of callings given that, for example, it specifies that the requirement for a supporting statement when making a demand is a default rule. It is also recommended that the form of guarantees be the standard demand guarantee. Third, parties involved in issuing guarantees are advised to understand international rules for guarantee like URDG758 and ISP98 and to play a key role in guiding SME contractors in Korea so that they can protect themselves from possible wrongful callings, particularly from employers in the Middle East countries. I hope this study would give a wake-up call for Korean SMEs wishing to do business in the Middle East countries and remind them of the importance of guarantee itself and its governing principles.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.42
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• pp.133-160
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• 2009

In International trade the buyer and seller are normally separated from on another not only by distance but also by differences in language and culture. It is rarely possible for the performance of obligations to be simultaneous and the performance of contracts therefore calls for trust in a situation in which the parties are unlikely to feel able to trust each other unless they have a longstanding and successful relationship. Thus the seller under an international contract of sale will not wish to surrender documents of title to goods to the buyer until he has at least an assurance of payment, and no buyer will wish to pay for goods until he has received them. A gap of distrust thus exists which is often bridged by the undertaking of an intermediary known and trusted by both parties who will undertake on his own liability to pay the seller the contract price in return for the documents of title and then pass the documents to the buyer in return for the reimbursement. This is a common explanation of the theory behind the documentary letter of credit in which the undertaking of a bank of international repute serves as a "guarantee" to each party that the other will perform his obligations. The independence principle, also referred to as the "autonomy principle", is at the core of letter of credit or bank guarantee law. This principle provides that the letter of credit or bank guarantee is independent of the underlying contractual commitment - that is, the transaction that the credit is intented to secure - between the applicant and the beneficiary ; the credit is also independent of the relationship between the bank and its customer, the applicant. The most important exception to the independence principle is the doctrine of fraud in the transaction. A strict interpretation of the rule that the guarantee is independent of the underlying transaction would lead to the conclusion that neither fraud nor manifest abuse of rights by the beneficiary would constitute an objection to payment. There is one major problem related to "Independent guarantees", namely abusive or unfair callings. The beneficiary may make an unfair calling under the guarantee. The countermeasure of beneficiary's unfair calling divided three cases. First, advance countermeasure namely by contract. In other words, when the formation of the contract, the parties must insert the Force Majeure Clause, Arbitration Clause to Contract, and clear statement to the condition for demand calling. Second, post countermeasure namely by court. Many countries, including the United States, authorize the courts to grant an order enjoining the issuer from paying or enjoining the beneficiary from receiving payment under the guaranty letter. Third, Export Insurance. For example, the Export Credit Guarantees Department is prepared, subject to certain conditions, to cover the risk of unfair calling. Of course, KEIC in Korea is cover the risk of the all things for guarantees. On international projects, contractor performance is usually guaranteed by either a standby letters of credit or Independent guarantee. These instruments will be care the parties.

• Journal of the Korean Home Economics Association
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• v.36 no.5
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• pp.89-106
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• 1998

Standard contsacts are drafted by one side only and therefore naturally favour that party. The other party must either adhere to those terms or abandon the transaction entirely. Accordingly the terms in these contracts tend to by quite harsh, especially so in consumer transactions. The objectives of this study are to examine the degree of consumer knowledge practical use, experience of consumer problems on service contract terms and to investigate the factors which influence on the degree of experience of consumer problems related the contract terms. The data used in this empirical study included 685 consumers experienced transactions with the terms in the last two years in Seoul. Statistics used for data analysis ere Reliability, Frequencies, Means, Standard Deviation and Multiple Regression Analysis. The conclusions can be summarized as follows. 1) Actually, consumers experienced many problems related the service-contract terms, despite regulation of unfair contract terms. 2) The level of education and purchasing experience variables have affected positively to the level of consumer problem experiences related the contract terms. 3) The effect of trend and characteristics of contract terms are variables with the type of contract terms. Therefore the regulation of the contract terms have to by differently enforced according to the type of contract terms.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.69
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• pp.127-151
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• 2016

UNIDROIT Principles of International Commercial Contracts(PICC) was published in 1994. PICC has been functioned as a guideline of international commercial contracts, an applicable law to govern a contract by the agreement of the parties to a contract, general principles of law and lex mercatoria. In addition, PICC has a role of interpreting or supplementing international uniform law instruments as well as domestic laws, and also has served as a model for national and international legislations. PICC has been accepted as a authoritative source of knowledge of international trade usages of international commercial contracts to the arbitral tribunal rather than domestic court because it excluded the characteristics of hard law at the drafting stage. This article dealt with the rule on gross disparity of validity which fall outside the scope of UN Convention on Contract for the International Sale of Goods(CISG), which has obtained a leading legal position of uniform law in international sales of good. In other words, PICC suggests a series of meaningful solutions to the issue of gross disparity of contract which is the most complicated among legal disputes occurring during the process of conclusion of contact and also extremely different and diverse between legal systems. This article covered the issue of gross disparity of contract at the conclusion of contact and suggested the legal basis of several rules related to the gross disparity by analysing gross disparity rule of PICC. Furthermore, this article suggested legal check points or implication as well as interpretation and evaluation on doctrine of laesio enormis and undue influence or unconscionability. This article also dealt with a comparative analysis with Principles of European Contract Law(PECL) and Common European Sales Law(CESL) which have important legal positions in the area of international commercial contract as well as in terms of close relationship to PICC by linking with recent court or arbitral tribunal rulings.

• The Journal of the Korea Contents Association
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• v.15 no.1
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• pp.86-94
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• 2015

This study is carried out to critically explore the direction of the improvement of the protection clauses of minor artists which is the core of Popular Culture Art Industrial Development Act enforced from July 29, 2014. The analysis shows that the law accepted the social issues such as the prevention of procuring minor prostitution, slave contracts(unfair long-term contracts), and third party's profit-extortion. However, the law missing or not specifically stated about age-based differential enforcement of work hours, dangerous acting scenes shouldn't be forced to minors, right to sleep, health, and study, as well as the penalty regulations in violation of each clause. Consequently, the Act's revision and supplementation is necessary to fully meet above insufficiencies referring to foreign practices.

• Journal of Korea Entertainment Industry Association
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• v.15 no.3
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• pp.323-335
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• 2021

The purpose of this study is to organize issues of exclusive contracts for celebrities, which have been a major part of the existing industry, in preparation for various contract disputes in the media entertainment industry, and disputes in the media entertainment industry. According to the law case analysis conducted to achieve the purpose of the study, the court judged that the exclusive contract that did not conform to society's conventional wisdom was not effective, and that it was difficult to maintain the contract because it was not a normal contract. In addition, the court believed that unreasonable contracts using unfair trading status and overly long contracts were all reasons for termination. According to the court's judgment, the current standard contract requires about four revisions. First, clarification of contract termination conditions, second, clarification of payment date of revenue allocation, third, diversification of contract periods, and fourth, realistic modification of penalty provisions. Standard contracts have been enacted after several discussions, but there are still many things to revise and supplement. It will not end up with the preparation and use of contracts, but it will be necessary to continuously revise them to suit the industry's situation.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.43
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• pp.3-23
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• 2009

The meaning of Good faith is honest intent to act without taking an unfair advantage over another person or to fulfill a promise to act, even when some legal technicality is not fulfilled. The term is applied to all kinds of transactions. According to the CISG only regulated Art. 7. that is in the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade (1) and questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law (2). In the other hand PICC is related to the good faith and fair dealing, each party must act in accordance with good faith and fair dealing in international trade (1) and the parties may not exclude or limit this duty (2). Good faith of PECL is these principles should be interpreted and developed in accordance with their purposes. In particular, regard should be had to the need to promote good faith and fair dealing, certainty in contractual relationships and uniformity of application. Further more regarding to the good faith and fair dealing, same to the PICC regulations.