• Title/Summary/Keyword: common law

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Legal Relation of Parties on Transactions in UCITA (UCITA상의 전자정보거래 당사자 간의 법률관계)

  • Oh, Byoung-Cheol
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.29
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    • pp.197-223
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    • 2006
  • Uniform Computer Information Transactions Act (UCITA) is the first legislative attempt in the world that deals with transaction of digital information. This however gave rise to endless controversies and as of February 10, 2003, its life as the uniform law has expired. There are four kinds of relationships that UCITA regulates for the entities involved in information trading namely, 1) Relationship between licenser and licensee 2) The triangle relationship between dealers, end-user and publisher 3) Relationship between information right transferor and transferee 4) Relationship between financier, licenser and licensee. Amongst these, the most significant one is the triangle relationship amongst the publisher, commonly known as the licenser in the mass market, end-user and dealer. At the essence of the relationship is that the dealers is liable to refund the payment for the information regarding the end user if he/she does not agree with the publisher on the license of the common market. Looking at the relationship between license transferor and transferee, the transfer of license may be prohibited but the special contract must be conspicuously carried out. The relationship financier, licenser and licensee is unique to the United States and is rather unfamiliar to us. UCITA has been criticized for preferentially protecting the benefits of licensers especially when it comes to the specific regulations for the relationship. Therefore, it is not advisable to blindly accept UCITA regulations. However, UCITA does have components that we can utilize in formulating our own digital information trade regulations, save its proprietary nature as an American law and its preferential treatment for licensers.

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韓-歐FTA中与ILO相關條款紛爭及對中國的啓示

  • Go, Cheon-Cheon;Mun, Cheol-Ju
    • 중국학논총
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    • no.72
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    • pp.101-122
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    • 2021
  • Over the past 20 years, labor standards have been widely used in free trade agreements. The U.S., the European Union and China have all aggressively signed free trade agreements with their trading partners, developing different styles on labor standards. According to the study, the implementation of the KOREa-EU FREE trade agreement has been hampered by ongoing disputes over the terms of the FREE trade agreement and the ILO since the korea-EU free trade agreement was signed. Because in order to break this deadlock, relevant scholars have done a lot of research, but mainly focused on the economic and trade field. Therefore, this paper for the first time systematically studies the substantive focus of disputes over FTA and ILO clauses, and carefully analyzes the domestic law amended by South Korea, and provides suggestions and inspirations for China by drawing lessons from the revision model of South Korea's domestic law. This is from a newperspective: the essence of the korea-EU FTA and ILO disputes is the conflict between international law and domestic law, and the conflict between free trade agreements and human rights protection. It holds that the essence of disputes should be sorted out from the perspective of legal principles and human rights protection, and the free trade and human rights protection should be actively coordinated. In order to make China more actively integrate into the international economy, China should adopt a positive attitude to revise and perfect its own laws, so as to realize the purpose of common development of international trade and human rights protection.

Legal Issues in the Introduction of Compelled Decryption According to Device Unlock Limits

  • Chohee Bae;Sojung Oh;Sohyun Joo;Jiyeon Joo;KyungLyul Lee
    • KSII Transactions on Internet and Information Systems (TIIS)
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    • v.17 no.2
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    • pp.591-608
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    • 2023
  • With the emergence of advanced encryption technologies such as Quantum Cryptography and Full Disk Encryption, an era of strengthening information security has begun. Users respond positively to the advancement of privacy-enhancing technology, on the other hand, investigative agencies have difficulty unveiling the actual truth as they fail to decrypt devices. In particular, unlike past ciphers, encryption methods using biometric information such as fingerprints, iris, and faces have become common and have faced technical limitations in collecting digital evidence. Accordingly, normative solutions have emerged as a major issue. The United States enacted the CLOUD Act with the legal mechanism of 'Contempt of court' and in 2016, the United Kingdom substantiated the Compelled Decryption through the Investigatory Powers Act (IPA). However, it is difficult to enforce Compelled Decryption on individuals in Korea because Korean is highly sensitive to personal information. Therefore, in this paper, we sought a method of introducing a Compelled Decryption that does not contradict the people's legal sentiment through a perception survey of 95 people on the Compelled Decryption. We tried to compare and review the Budapest Convention with major overseas laws such as the United States and the United Kingdom, and to suggest a direction of legislation acceptable to the people in ways to minimize infringement of privacy. We hope that this study will be an effective legal response plan for law enforcement agencies that can normatively overcome the technical limitations of decoding.

Remedies for the Seller's Delivery of Defective Goods under EC Directive in Comparison with English Law, Korean Law and CISG (EC Directive상 하자물품에 대한 매수인의 구제제도에 관한 비교연구)

  • Lee, Byung-Mun
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.19
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    • pp.33-66
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    • 2003
  • This is a comparative and analytical study which comprises of the analysis of the rules of the buyer's remedies where the seller delivers defective goods of four legal systems; Directive, CISG, English law and Korean law. In light of threefold main purposes of this study, it firstly attempts to describe and analyze the remedy provisions of Directive in a comparative way in order to provide legal advice to the sellers who plans to enter into English consumer markets. It shows that the two tier remedial system under Directive is not much different from the other jurisdictions, except where the right of rescission under Directive is absolute in a sense that it does not require a certain degree of seriousness of defect. Secondly, the study compares the rules of one jurisdiction with those of other jurisdictions and evaluates the rules in light of the discipline of comparative law the basic question of which is whether a solution from one jurisdiction may facilitate the systematic development and reform of another jurisdiction. It proves the followings; (1) the reluctance and uncertainty in English law of ordering specific performance based on the discretionary power does not reflect the parties' preference because the order is either uncertain or rather negative where the purchase of substitute goods elsewhere is not a satisfactory solution in many cases; (2) the position in Korean law which has no limitation on the right to require substitute goods is likely unfair in commercial sales, but justified in consumer sales; (3) the right of termination or reduction under Directive which is subject to the applicability of the right to require repair or substitute goods seems to be contrary to the consumer's preference where the defective delivery destroys the basis of trust in the quality of the seller's performance; (4) the absolute right of termination under Directive and English law seems crucial in consumer sales because they are often inferior to commercial sellers in terms of information and bargaining power; (5) the right of reduction as a self-help remedy which is absent in English law emphasizes its usefulness. Thirdly, it finds that, where CISG is deemed to fail to unify different rules on the right to require specific performance between Civil and Common law, it is attempted once again in Directive and notwithstanding their hostility to awarding the right to require specific performance in English law, Regulations 2002 expressively stipulates such right.

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A Study on the Rule of Warranty in the English Law of Marine Insurance (영국 해상보험법상 담보(warranty)에 관한 연구)

  • Shin, Gun-Hoon
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.42
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    • pp.275-305
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    • 2009
  • Marine insurance contracts, which intended to provide indemnity against marine risks upon the payment of price, known as a premium, originated in Northern Italy in the late 12th and early 13th centuries. The law and practice were later introduced into England through the Continent. It is, therefore, quite exact that English and European marine insurance law have common roots. Nevertheless, significant divergences between English and European insurance systems occurred since the late 17th century, mainly due to different approaches adopted by English courts. The rule of warranty in English marine insurance was developed and clarified in the second part of the 18th century by Lord Mansfield, who laid the foundations of the modern English law of marine insurance, and developed different approaches, especially in the field of warranty in marine insurance law. Since the age of Lord Mansfield, English marine insurance law has a unique rule on warranty. This article is, therefore, designed to analyse the overall rule of the rule of warranty in English marine insurance law. The result of analysis are as following. First, warranties are incorporated to serve a very significant function in the law of insurance, that is, confining or determining the scope of the cover agreed by the insurer. From the insurer's point of view, such the function of warranties is crucial, because his liability, agreed on the contract of insurance, largely depend on in, and the warranties, incorporated in the contract play an essential role in assessing the risk. If the warranty is breached, the risk initially agreed is altered and that serves the reason why the insurer is allowed to discharge automatically further liability from the date of breach. Secondly, the term 'warranty' is used to describe a term of the contract in general and insurance contract law, but the breach of which affords different remedies between general contract law and insurance contract law. Thirdly, a express warranty may be in any form of words from which the intention to warrant is to be inferred. An express warranty must be included in, or written upon, the policy, or must be contained in some document incorporated by reference into the policy. It does not matter how this is done. Fourthly, a warranty is a condition precedent to the insurer's liability on the contract, and, therefore, once broken, the insurer automatically ceases to be liable. If the breach pre-dates the attachment of risk, the insurer will never put on risk, whereas if the breach occurs after inception of risk, the insurer remains liable for any losses within the scope of the policy, but has no liability for any subsequent losses. Finally, the requirements on the warranty must be determined in according to the rule of strict construction. As results, it is irrelevant: the reason that a certain warranty is introduced into the contract, whether the warranty is material to the insurer's decision to accept the contract, whether or not the warranty is irrelevant to the risk or a loss, the extent of compliance, that is, whether the requirements on the warranty is complied exactly or substantially, the unreasonableness or hardship of the rule of strict construction, and whether a breach of warranty has been remedied, and the warranty complied with, before loss.

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Path Tracking Controller Design for Surface Vessel Based on Sliding Mode Control Method with Switching Law (슬라이딩 모드 제어와 스위칭 기법에 기반한 수상함의 경로 추종 제어기 설계)

  • Lee, JunKu
    • Journal of the Korea Institute of Military Science and Technology
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    • v.20 no.1
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    • pp.108-118
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    • 2017
  • In this paper, the path tracking controller for a surface vessel based on the sliding mode control (SMC) with the switching law is proposed. In order to have no restriction on movement and improved tracking performance, the proposed control system is developed as follows: First, the kinematic and dynamic models in Cartesian coordinates are considered to solve the singularity problem at the origin. Second, the new multiple sliding surfaces are designed with the SMC and approach angle concept to solve the under-actuated property. Third, the switching control system is designed to improve tracking performance. To prove the stability of the proposed switching system under the arbitrary switching, the Lyapunov stability analysis method with the common Lyapunov function is used. Finally, the computer simulations are performed to demonstrate the performance, effectiveness and stability of the proposed tracking controller of a surface vessel.

A Study on the Recent Changes of Level of Club Cover in P & I Insurance (P & I 보험의 보상한도에 관한 고찰 - 최근의 변화 및 쟁점을 중심으로 -)

  • Shin, Gun-Hoon
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.22
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    • pp.201-226
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    • 2004
  • P & I Clubs are mutual and non-profit making insurers which offer shipowners cover for the contractual and third-party liabilities. Whereas most shipowners obtain P & I insurance to cover for their legal liabilities, they also obtain hull insurance to cover against damages to the hull of their vessels from commercial hull insurers. P & I insurance was distinguished from hull insurance in respect that it offered non-limited cover to shipowner member, but there was a serious debate between P & I Clubs in respect of the non-limited cover. A compromise by International Group of P & I Clubs eventually emerged under which, with effect from 20 February 1997, a financial cap was placed on the obligation of each shipowner to pay catasrophe calls to his club(20% of each ship's property limitation fund under 1976 Limitation Convention). Nevertheless many shipowners felt that this new cap on their potential catastrophe call had been set still too high, while others resisted any reduction in the figure established by the compromise. In the Meantime, the European Commission issued a Statement of Objections in June 1997, in which it indicated its objections with a compulsory single limit common th all the Group clubs as high as the 1997 compromise. Eventually the board of all the Group clubs decided that the figure of 20% of the Limitation Convention per ship property funds should be dropped down to 2.5% from 20 February 1999.

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The Writing Requirement of Contracts for International Sales of Goods: the CISG and the US Laws (국제물품매매계약에서의 서면요건에 대한 고찰: 미국계약법과 CISG 비교를 중심으로)

  • Ha, Choong-Lyong
    • International Commerce and Information Review
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    • v.14 no.4
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    • pp.203-225
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    • 2012
  • This paper investigates the difference of writing requirements between the UCC2. and the UN convention on international sales of goods (CISG). To do it, the U.S writing requirement by statute of frauds was introduced by two sources of laws including common law and UCC${\S}$2-201. Although the U.S. statute of frauds requires some contract to be written with formalities, the way the requirement is satisfied is quite flexible in terms of its formalities. The UCC is more flexible than the common law in its formalities. The CISG does not require the sales contract to be written with any format, which is totally different from the U.S statue of frauds. Such differences between the U.S laws and CISG in writing requirement were investigated in the context of conflicts of laws.

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Analysis, Recognition and Enforcement Procedures of Foreign Arbitral Awards in the United States

  • Chang, Byung Youn;Welch, David L.;Kim, Yong Kil
    • Journal of Arbitration Studies
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    • v.27 no.3
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    • pp.53-76
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    • 2017
  • Korean businesses, and their legal representatives, have observed the improvements of enforcement of commercial judgments through arbitration over traditional collections litigation in U.S. Courts-due to quicker proceedings, exceptional cost savings and more predictable outcomes-in attaching assets within U.S. jurisdictions. But how are the 2016 interim measures implemented by the Arbitration Act of Korea utilized to avoid jurisdictional and procedure pitfalls of enforcement proceedings in the Federal Courts of the United States? Authors examine the necessary prerequisites of the U.S. Federal Arbitration Act as adopted through the New York Convention, to which Korea and the U.S. are signatories, as distinguished from the Panama Convention. Five common U.S. arbitration institutions address U.S. "domestic" disputes, preempting U.S. state law arbitrations, while this article focuses on U.S. enforcement of "international" arbitration awards. Seeking U.S. recognition and enforcement of Korean arbitral awards necessitates avoiding common defenses involving due process, public policy or documentary formality challenges. Provisional and conservatory injunctive relief measures are explored. A variety of U.S. cases involving Korean litigants are examined to illustrate the legal challenges involving non?domestic arbitral awards, foreign arbitral awards and injunctive relief. Suggestions aimed toward further research are focused on typical Korean business needs such as motions to confirm foreign arbitration awards, enforce such awards or motions to compel arbitration.

Regulation of International Economic-Legal Cooperation in the Field of Agricultural Production through the Prism of Information Technology Development

  • Matvieiev, Petro;Baadzhy, Nataliia;Gurenko, Maria;Myroshnychenko, Volodymyr;Feofanova, Iryna
    • International Journal of Computer Science & Network Security
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    • v.21 no.11
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    • pp.143-150
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    • 2021
  • International economic and legal cooperation can ensure the transition of agriculture to the trajectory of sustainable development. The paper considers in detail the set of common goals and problems of an international nature, the solution of which is aimed at global legal regulation of cooperation between states. It is also noted about the impact of information technology on agricultural development. The following methods of scientific cognition are used: a historical, systematic approach to research, method of analysis, and synthesis. Research results: a scientific idea of the importance of international cooperation in general and global collaboration in the field of agricultural production in particular. It is stated that states are obliged to cooperate, regardless of differences in their political, economic, and social systems, in various areas of international relations to maintain international peace, security and promote worldwide economic stability and progress, the common good of peoples. It is emphasized the need to build such relations in the agricultural sector, which take into account the interests of all states.